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.
Preemption
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.
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