Synthesizing TSCA and REACH: Practical Principles for Chemical Regulation Reform

The European Union's newly enacted comprehensive regulation for industrial chemicals, known as REACH, draws heavily on three decades of experience in the United States under the Toxic Substances Control Act. Much of that experience has been negative-TSCA is widely regarded as a disappointment among U.S. environmental laws-and so REACH deliberately reverses many of the legislative choices that Congress made in TSCA. REACH also takes advantage of important new regulatory devices that were not available to the framers of TSCA thirty years ago. The passage of REA CH has sparked renewed interest in reforming TSCA, and the reformers will undoubtedly look to REACH for ideas. This Article contends that, while many aspects of REACH can fairly be understood as the Anti-TSCA, on closer examination, REACH follows many of TSCA's fundamental approaches to chemical regulation. These similarities offer a unique opportunity to develop a synthesis of the two regulatory regimes, which could form the practical basis for updating TSCA. While reform based on a synthesis of TSCA and REACH would be evolutionary rather than revolutionary, it could nevertheless greatly improve chemical regulation in the United States. The basis for such reform is likely to remain a risk-based, chemical-based, and cost-sensitive system. Nevertheless, a stronger commitment to progressive improvement could be obtained by a consistent effort to eliminate the most dangerous chemicals, the development of safety plans for the remainder, and consistent incentives to find safer substitutes. Chemical regulation should be more truly precautionary by relying primarily on available information with less demand for information that does not yet exist; regulators must be able to act in advance of full certainty; and, in contrast to the present procedural complexity of TSCA, the regulatory system should be simplified and include heavy reliance on providing information to the public. The Article concludes with a brief discussion of the global impact of national regulatory systems like REACH.