Federal Preemption of State Chemical Regulation Under the Lautenberg Act in the Face of Lax Export Regulation Abroad

By Grace Smith*

In 2016, Vietnam amped up regulation of toxins in clothing products sold domestically, but relaxed regulation on its exports.[1] That same year the U.S. Congress passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (the “Lautenberg Act”) which amended the Toxic Substance Control Act (TSCA) to provide for federal preemption of state laws.[2] Although state governments have historically led in providing consumer protection from toxins, the federal preemption amendment threatens to interfere with their ability to mitigate the potential effects of lax export regulation in countries like Vietnam.  States may find ways to strategically circumvent the potentially harmful effects of preemption by either creating state laws identical to those proposed by the EPA, thereby controlling their enforcement, or by adjusting air and water quality and waste treatment regulations.[3]

The Vietnam Ministry of Industry and Trade passed regulation effective February 2016 that imposes more stringent requirements on the permitted amount of formaldehyde and AZO dyes in textile products manufactured, imported, and traded in the country.[4] The new regulation provides for limits and inspection of formaldehyde and of aromatic amines produced from AZO dyes in textile and apparel products. This is an entirely domestic regulation that only applies to textile products imported, distributed, and marketed in Vietnam.[5] So such restrictions do not apply to fabrics imported for processing export products or textile products imported for re-export.[6]

Formaldehyde is frequently used in treating textiles, including popular “no-iron” clothing.[7] The chemical can produce serious health issues for people working with the chemical in factories, and can cause those who wear wrinkle-resistant clothing to develop a skin condition called contact dermatitis.[8]  Aromatic amines are present in some common dyes used in textiles and include chemicals that are either known or suspected to be carcinogens.[9]  Both products are effectively unregulated by the United States federal government.[10]  As a result, state governments have taken the lead in establishing robust regulation of chemical imports to screen imports coming from countries such as Vietnam.[11] For example, formaldehyde is subject to California’s Proposition 65.[12] Washington, Maine, and Minnesota have statutes with reporting requirements for “high priority” chemicals intentionally added to children’s products, including formaldehyde.[13]

Increasing state regulation of chemicals prompted the chemical industry to push for nationwide regulatory uniformity.[14] As a result, the Lautenberg Act was signed June 2016. It provides the first significant set of amendments to the TSCA since the TSCA’s adoption in 1976. Of special importance are the Act’s provisions allowing federal preemption of state laws regulating chemicals.

While the purpose of the Lautenberg Act was to give the EPA the tools necessary to strengthen oversight and health protections for Americans[15], it could have the opposite effect under the current administration and EPA.  Along with Vietnam’s recent move to relax its regulation of chemicals in exported textiles, this could be a serious problem for states and their ability to protect consumers from chemicals such as formaldehyde.

Passed under the Obama administration, the Lautenberg Act seeks to allow the EPA to evaluate chemicals already on the market and preempt some state laws to provide greater uniformity in protections for all Americans.[16] The new law should mean federal regulation of more chemicals, but there is a trade-off.[17] In granting the power of preemption, the TSCA also can preclude state action on a chemical if the EPA determines through a risk evaluation that such chemical does not present an unreasonable risk or if the EPA promulgates a rule to address the risks imposed by the chemical.[18]  States may continue to enforce any actions taken regarding a specific chemical prior to April, 2016.[19] States may also continue to enforce and take new regulatory actions regarding chemicals pursuant to state law that were in effect on August 31, 2002.[20] However, under the Lautenberg Act, once the EPA begins reviewing a chemical and has defined the scope of review, a state cannot take action until the EPA’s risk evaluation is complete.[21]

Under the current EPA, it is possible invocation of the preemption doctrine will be used to preclude regulation rather than strengthen regulation as the law intended. 16 of the 45 appointees by the Trump administration that are driving policy worked for the oil, coal and chemical industries.[22] Career EPA staff members such as lawyers and scientists are being excluded from decision-making and rarely get face time with Administrator Scott Pruitt.[23] Under Pruitt, the EPA has already declined to ban a pesticide linked to neurological damage in children, frozen requirements to reduce water pollution from coal-fired power plants, and has begun loosening limits on toxic coal waste.[24]

Despite the potentially harmful application of the Act under the new administration, there are three ways states can circumvent the threat of federal preemption and preserve regulations that are needed to thwart chemicals imported via textiles from countries such as Vietnam.

First, states should act where the EPA has no regulation.  Under the amendments, states can act on any chemical or particular use of a chemical that the EPA has not yet addressed and can implement reporting, monitoring, or disclosure requirements.[25] Second, states may be able to impose indirect influence over the use of chemicals through the adoption and enforcement of water quality, air quality, waste treatment and disposal regulations.[26] While such regulations, under the Act, are not permitted to confront the same hazards and exposures addressed in the EPA’s risk evaluation, states could address different hazards, exposures, uses and conditions of use.[27] Lastly, states can adopt and enforce chemical regulations that are identical to the federal regulations.[28] By adopting parallel rules independently, states will have more discretion in interpreting and enforcing such rules. That will hopefully result in state regulatory authorities interpreting the parallel regulations differently or enforcing them more aggressively than the EPA.

Vietnam’s 2016 law, decreasing monitoring of its textile exports, calls for continued state action that has previously stepped in to protect consumers where the federal government has failed.  States can maintain dominance over regulation by strategically circumventing federal preemption that might be used by the current administration and Director Pruitt as a tool for decreasing chemical regulation.  Ultimately, states might retain authority if the EPA fails to regulate certain chemicals. However, only time will tell what will happen to consumers as a result of the combined decrease in regulation abroad and federal preemption laws at home.

* Grace Smith is a Junior Editor for MJEAL and can be reached at gracems@umich.edu


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] Christopher Bell, Product Stewardship and Textiles, Greenberg Traurig: E2 Law Blog (April 27, 2017), https://www.gtlaw-environmentalandenergy.com/2017/04/articles/chemicals/product-stewardship-and-textiles.

[2] Stanford D. Baird, The “Most Contentious Issue” — Federal Preemption in the Amended Toxic Substances Control Act, K&L Gates (July 28, 2016), http://www.klgates.com/the-most-contentious-issue–federal-preemption-in-the-amended-toxic-substances-control-act-07-28-2016/.

[3] Id.

[4] Vietnam Revises Regulation on Use of Azo Dyes in Textiles, Apparel Views (April 20, 2017), http://www.apparelviews.com/vietnam-revises-regulation-use-azo-dyes-textiles/.

[5] Lainie Lamicella, Vietnam Releases New Regulations for Formaldehyde and Azo Dyes in Textiles, Sourcing Journal (October 1, 2015), https://sourcingjournalonline.com/vietnam-releases-new-regulations-for-formaldehyde-and-azo-dyes-in-textiles/.

[6] Id.

[7] Tara Siegel Bernard, When Wrinkle-Free Clothing Also Means Formaldehyde Fumes, N.Y. Times (December 10, 2010), http://www.nytimes.com/2010/12/11/your-money/11wrinkle.html.

[8] Id.

[9] Christopher Bell, Product Stewardship and Textiles, Greenberg Traurig: E2 Law Blog (April 27, 2017), https://www.gtlaw-environmentalandenergy.com/2017/04/articles/chemicals/product-stewardship-and-textiles.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Stanford D. Baird, The “Most Contentious Issue” — Federal Preemption in the Amended Toxic Substances Control Act, K&L Gates (July 28, 2016), http://www.klgates.com/the-most-contentious-issue–federal-preemption-in-the-amended-toxic-substances-control-act-07-28-2016/.

[15] A new chemical safety law: The Lautenberg Act, Environmental Defense Fund, https://www.edf.org/health/new-chemical-safety-law-lautenberg-act.

[16] Melanie Benesh, Under New Safety Law, 20 Toxic Chemicals EPA Should Act on Now: What the New Chemical Safety Law Will Do, The Environmental Working Group (July 21, 2016), https://www.ewg.org/research/under-new-safety-law-20-toxic-chemicals-epa-should-act-now/what-new-chemical-safety-law#.WgipDBOPIWp.

[17] Id.

[18] Stanford D. Baird, The “Most Contentious Issue” — Federal Preemption in the Amended Toxic Substances Control Act, K&L Gates (July 28, 2016), http://www.klgates.com/the-most-contentious-issue–federal-preemption-in-the-amended-toxic-substances-control-act-07-28-2016/.

[19] Id.

[20] Id.

[21] Id.

[22] Melanie Benesh, Under New Safety Law, 20 Toxic Chemicals EPA Should Act on Now: What the New Chemical Safety Law Will Do, The Environmental Working Group (July 21, 2016), https://www.ewg.org/research/under-new-safety-law-20-toxic-chemicals-epa-should-act-now/what-new-chemical-safety-law#.WgipDBOPIWp.

[23] Rachel Leven, “Do the opposite thing you did 18 months ago”: EPA staffers on the agency in the Trump era, Vox Media (November 10, 2017), https://www.vox.com/energy-and-environment/2017/11/9/16619988/scott-pruitt-epa-dysfunction-staff.

[24] Id.

[25]  Stanford D. Baird, The “Most Contentious Issue” — Federal Preemption in the Amended Toxic Substances Control Act, K&L Gates (July 28, 2016), http://www.klgates.com/the-most-contentious-issue–federal-preemption-in-the-amended-toxic-substances-control-act-07-28-2016/.

[26] Id.

[27] Id.

[28] Id.

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