On June 22, 2016, President Obama signed the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” into law, making comprehensive changes to the Toxic Substances Control Act (TSCA). This step comes after years of congressional attempts to update the Act.
The changes to TSCA will have sweeping effects on various industries and manufacturers, as the law regulates a wide variety of household, commercial, and industrial chemicals. In the past, TSCA had been criticized in part due to its piecemeal regulation of only certain industries and chemicals, and the regulation of certain chemicals only through more stringent state-enacted rules. The new law provides more certainty for regulated parties and grants the U.S. Environmental Protection Agency (U.S. EPA) broader authority to regulate chemicals currently in the stream of commerce.
Under the new law, the EPA rules implementing the Act preempt many new state rules related to chemicals. However, state chemical limitations passed prior to April 22, 2016, as well as any new actions taken under a state law that existed prior to August 31, 2003, are “grandfathered” and enforceable by the state, including, notably, California’s Proposition 65. Additionally, under the new TSCA, states may not enact new more stringent rules than existing EPA rules, and thus, the law sets a national framework for chemical regulation rather than a state-by-state scheme. The preemption elements of the law were hotly contested throughout the legislative process, and the outcome is generally seen as a benefit to industry that will result in more universally consistent regulation.