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U.S. Exporters & Chemical Companies Fight Against New Strict EU Regulations

From: Grist Magazine <> 5/17/05

U.S. Companies: Working to Keep Europeans Safe

American firms conforming to E.U. chemical regs

Though the U.S. was once a global leader in environmental regulation, that is, to put it mildly, no longer true. Now, the real challenge for many U.S. companies is complying with the stringent standards that govern the European Union market -- if they want to reach its 460 million consumers. Using a "better safe than sorry" model, the E.U. has instituted hundreds of bans on industrial compounds linked to cancer, reproductive problems, and other ill health effects. The newest piece of such legislation, set for evaluation by European Parliament this fall, would require companies to provide scientific data on some 30,000 chemical compounds, in many cases evaluating their effects on environmental and human health.

The testing could cost industries up to $6.8 billion and might involve bans on thousands of chemicals if they can't be proven safe. "In the E.U., if there is a risk with potentially
irreversible impact, we don't wait until the last piece of information," said Rob Donkers, the E.U.'s environmental counselor in Washington, D.C.

straight to the source: Los Angeles Times, Marla Cone, 16 May 2005,0,5222200.story?coll

Europe's Rules Forcing U.S. Firms to Clean Up

Unwilling to surrender sales, companies struggle to meet the EU's tough
stand on toxics.
By Marla Cone
Times Staff Writer

May 16, 2005

At their headquarters in Santa Clara, researchers at Coherent Inc., the
world's largest laser manufacturer, are wrestling with an environmental law
that is transforming their entire product line.

Soon, everything produced at the Bay Area company < even the tiniest
microchip inside its high-powered lasers that fly on NASA satellites and
bleach jeans sold at boutiques < must be free of lead, mercury and four
other hazardous substances.

The mandate that has Coherent and other American electronics companies
scrambling doesn't come from lawmakers in Washington, or even Sacramento.

Instead, it was crafted 5,000 miles away, in Brussels, the capital of the
European Union.

Europe's law, governing any product with a battery or a cord, has spawned a
multibillion-dollar effort by the electronics industry to wean itself from
toxic compounds.

"This is the first time we've encountered something like this on such a
global scale," said Gerry Barker, a vice president of Coherent, whose lasers
are used to create master copies of Hollywood films, test the safety of car
tires, imprint expiration dates on soda cans and more.

And the electronics rule is only the beginning.

Already, Europe is setting environmental standards for international
commerce, forcing changes in how industries around the world make plastic,
electronics, toys, cosmetics and furniture. Now, the EU is on the verge of
going further < overhauling how all toxic compounds are regulated. A
proposal about to be debated by Europe's Parliament would require testing
thousands of chemicals, cost industries several billion dollars, and could
lead to many more compounds and products being pulled off the market.

Years ago, when rivers oozed poisons, eagle chicks were dying from DDT in
their eggs and aerosol sprays were eating a hole in the Earth's ozone layer,
the United States was the world's trailblazer when it came to regulating
toxic substances. Regardless of whether Republicans or Democrats controlled
the White House, the United States was the acknowledged global pioneer of
tough new laws that aimed to safeguard the public from chemicals considered

Today, the United States is no longer the vanguard. Instead, the planet's
most stringent chemical policies, with far-reaching impacts on global trade,
are often born in Stockholm and codified in Brussels.

"In the environment, generally, we were the ones who were always out in
front," said Kal Raustiala, a professor of international law at UCLA. "Now
we have tended to back off while the Europeans have become more aggressive

Europe has imposed many pioneering and aggressive < some say foolish and
extreme < bans meant to protect people from exposure to hundreds of
industrial compounds that have been linked to cancer, reproductive harm and
other health effects. Recent measures adopted by the European Union have
taken aim at chemicals called phthalates, which make nail polishes
chip-resistant, and compounds added to foam cushions that slow the spread of
fires in furniture.

EU's Big Market

Many companies, even those based in America, follow the European rules
because the EU, with 25 countries and 460 million people, surpasses even the
United States as a market. Rather than lose access to it, many companies
redesign their products to meet European standards. For example, Revlon,
L'Oreal and Estee Lauder have said that all their products meet European
directives that control the ingredients of cosmetics. And U.S. computer
companies say they are trying to remove lead and other substances banned in
the EU from everything they sell.

As the EU emerges as the world's toughest environmental cop, its policies
increasingly are at odds with Washington.

Among the compounds now phased out or restricted in Europe but still used
in high volumes in the United States are the pesticides atrazine, lindane
and methyl bromide; some phthalates, found in beauty products, plastic toys
and other products; and nonylphenol in detergents and plastic packaging. In
animal tests, those compounds have altered hormones, caused cancer,
triggered neurological changes in fetuses or damaged a newborn's
reproductive development.

The "biggest single difference" between EU and U.S. policy is in the
regulation of cosmetics, said Alastair Iles, a postdoctoral fellow at UC
Berkeley's Energy and Resources Group. Cosmetics sold in Europe cannot
contain about 600 substances that are allowed in U.S. products, including,
as of last September, any compound linked to cancer, genetic mutations and
reproductive effects.

Driving EU policy is a "better safe than sorry" philosophy called the
precautionary principle. Following that guideline, which is codified into EU
law, European regulators have taken action against chemicals even when their
dangers remain largely uncertain.

Across the Atlantic, by contrast, U.S. regulators are reluctant to move
against a product already in use unless a clear danger can be shown. A
chemical, they say, is innocent until proven guilty.

Critics say the U.S. Environmental Protection Agency's search for
scientific clarity takes so long that the public often goes unprotected.
Paralysis by analysis, the critics call it.

U.S. risk assessments can last years, sometimes longer than a decade, and
in some cases, the EPA still reaches no conclusions and relies upon
industries to act voluntarily. For instance, despite research that showed by
2002 that polybrominated flame retardants were doubling in concentration in
Americans' breast milk every few years, the EPA has still not completed its
risk review. Meanwhile, the U.S. manufacturer of two of the flame retardants
agreed voluntarily to stop making them last year after they were banned in
Europe and in California.

In the 1970s and '80s, all the major chemical and pollution laws in the
United States had a precautionary slant, said Frank Ackerman, an economist
at Tufts University's Global Development and Environment Institute.

Lengthy reviews of chemicals, which now dominate U.S. policy, began to
evolve under President Reagan and grew in the 1990s. Carl Cranor, an
environmental philosophy professor at UC Riverside, said that a conservative
groundswell in American politics and a backlash by industries set off "an
ideological sea change."

Part of the change stems from the much more vocal role of U.S. companies in
battling chemical regulations, said Sheila Jasanoff, a professor of science
and technology studies at Harvard University's John F. Kennedy School of
Government. American attitudes toward averting environmental risks haven't
changed since the 1970s, Jasanoff said. "What has changed is politics and
political culture," she said.

EPA's Limited Role

The Toxic Substances Control Act, adopted by Congress in 1976, grants the
EPA authority to restrict industrial chemicals that "present an unreasonable
risk of injury to health or the environment." The law, however, also tells
EPA to use "the least burdensome" approach to do so and compare the costs
and benefits.

A pivotal year for the EPA was 1991, when a federal appeals court nullified
its ban on asbestos. The court ruled that the agency, despite 10 years of
research, had failed to prove that asbestos posed an unreasonable risk and
had not proved that the public would be inadequately protected by steps
short of a ban.

Since then, the EPA has not banned or restricted any existing industrial
chemical under the toxics law, except in a few instances where manufacturers
acted voluntarily. New chemicals entering the market are more easily
regulated, and so are pesticides, under a separate law.

Some states, including California, are filling what they see as a void by
adopting their own rules. California and Maine banned some polybrominated
flame retardants, for example.

Iles said that restricting a chemical under federal law now requires a
"very tough burden of proof."

"Americans tend to think that products are safe because they are in the
market and must somehow have passed government regulation," he said. "But
there is no real regulation. Cosmetics, for example, are almost

Since the asbestos rule was thrown out by the court, EPA officials perform
more complicated calculations to quantify how much risk an industrial
chemical poses, assigning a numeric value, for example, to the odds of
contracting cancer or figuring out what dose might harm a fetus or child.
They also do more research to predict the costs and the expected benefits to
public health.

But making these precise judgments is difficult with today's industrial
compounds. In most cases, the dangers are subtle, not overtly

Studies of laboratory animals suggest that low doses of dozens of chemicals
can contribute to learning problems in children, skew sex hormones, suppress
immune systems and heighten the risk of cancer. Some chemicals build up in
the bodies of humans and wildlife, and spread globally via the air and
oceans. But while harm is well-documented in some wild animals and lab
tests, the risks to human beings are largely unknown.

In the face of that scientific uncertainty, Europeans say, their
precautionary principle is simply common sense. If you smell smoke, you
don't wait until your house is burning down to eliminate the cause, they
say. Their standard of evidence for chemicals is similar to the creed of
doctors: First, do no harm.

"In the EU, if there is a risk with potentially irreversible impact, we
don't wait until the last piece of information," said Rob Donkers, the EU's
environmental counselor in Washington, D.C.

"You can study things until you turn purple, but we do not work from the
concept that you really need to prove a risk 100,000 times," he said. "In
the face of potentially very dangerous situations, we start taking temporary
risk management measures on the basis of the science that is available."

Europe's policy is, in part, a reaction to a series of disturbing
revelations about dioxins in chicken, mad cow disease, toxic substances in
diapers and baby toys, all of which have made many Europeans more averse to
taking risks with chemicals.

Under Europe's rules, "there are chemicals that are going to be taken off
the market, and there probably should be," said Joel Tickner, an assistant
professor at the University of Massachusetts' School of Health and the

Conservative critics and some officials in the Bush administration
criticize Europe's precautionary approach as extreme, vague, protectionist
and driven by emotions, not science.

EPA officials would not go on the record comparing their policies with the
EU's. But they asserted that their approach, while different, is also

Instead of banning compounds, the EPA teams with industry to ensure there
are safe alternatives. In the last five years, 3M Corp. voluntarily
eliminated a perfluorinated chemical in Scotchgard that has been found in
human blood and animals around the world, and Great Lakes Chemical Corp.
ended manufacture of polybrominated flame retardants used in foam furniture.
In those cases, EPA officials said, forming partnerships with industry was
quicker than trying to impose regulations and facing court challenges as
they did with asbestos.

More than any other environmental policy in Europe, the proposal known as
REACH, or Registration, Evaluation and Authorization of Chemicals, worries
U.S. officials and industries.

Under REACH, which was approved by the EU's executive arm and is scheduled
to go before the European Parliament this fall, companies would have to
register basic scientific data for about 30,000 compounds. More extensive
testing would be required of 1,500 compounds that are known to cause cancer
or birth defects, to build up in bodies or to persist in the environment, as
well as several thousand others used in large volumes. Those chemicals would
be subject to bans unless there is proof that they can be used safely or
that the benefits outweigh the risks. The testing would cost industries $3.7
billion to $6.8 billion, the EU says.

Some company executives contend that Europe is blocking products that pose
little or no danger. In Santa Clara, Barker of Coherent said that the EU's
precautionary approach sounds good in principle but it forces businesses to
do things that are "unnecessary and probably very expensive."

In some cases, U.S. officials say, Europeans are using the precautionary
principle as an excuse to create trade barriers, such as their bans on
hormones in beef and genetically modified corn and other foods.

Not on the Same Page

"There is a protectionist element to this, but it goes beyond Europe trying
to protect its own industries or even the health of its public," said Mike
Walls, managing director at the American Chemistry Council, which represents
chemical manufacturers, the nation's largest exporter. "It's a drive to
force everyone to conform to their standards < standards that the rest of
the world hasn't weighed in on."

John Graham, an economist and senior official of Bush's Office of
Management and Budget, which reviews new regulations, has called the notion
of a universal precautionary principle "a mythical concept, kind of like a

"Reasonable people can disagree about what is precautionary and what is
dangerous," he said at a 2002 conference.

It is ironic, says Richard Jensen, chairman of the University of Notre
Dame's economics department, that Europeans "who embrace the precautionary
principle should have such a high tolerance for risk from smoking and
secondhand smoke."

Americans are more fearful of cigarettes, nuclear power and car exhaust <
and it shows in their laws. They also pasteurize foods to kill bacteria,
while European children grow up drinking and eating raw milk and cheese.

Said UCLA's Raustiala, "The United States is quite schizophrenic, as are
Europeans, about when we decide" to be cautious.

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Copyright 2005 Los Angeles Times