Science & Law Blog

European Parliament to Regulate Toxic Substances

A law passed by the European Parliament today will require manufacturers to register "30,000 chemicals used in everyday products," in effect beginning a comprehensive scheme of regulation.  (See NY Times article.)  Predictably, the law has critics on both sides, with industry concerned about costs and the effect of bureaucratic red tape on innovation, and environmentalists complaining that it does not go far enough.  In any event, it seems to be an important step toward addressing the disturbingly little toxicological data we have on the many chemicals used in commerce today.  The tort system seems woefully unsuitable for improving our knowledge, given its high administrative costs, its limited time horizon, and its deterrence of research by manufacturers (since bad results create liability).  A comprehensive testing scheme seems like a far more sensible solution.
-- EKC

San Francisco Bans Toys with Plastic Contaminants

CNN/Time Magazine, in a recent article entitled “What's Toxic in Toyland,” reports that San Francisco has banned certain plastic toys for children under 3 because of a fear of plastic contaminants. The contaminants are suspected of mimicking or interfering with hormones, leading to a variety of endocrine and reproductive problems. (See also the original story from the San Francisco Chronicle.) The Daubert-versed reader will notice a familiar refrain in the controversy surrounding the ban. Consumer and environmental groups accuse industry of ignoring a potentially significant public health problem. Industry groups and other critics in contrast argue that the proponents are unduly alarmist, and emphasize that the only current evidence of toxicity consists of high dose studies in rats.

One significant difference between the toy and Daubert contexts, however, is that one involves an ex ante regulation and the other an ex post liability determination. Liability determinations require proof of causation, suggesting that some preference for more definitive epidemiological studies may be appropriate. (Some academics, including my colleague Margaret Berger, have questioned the wisdom of demanding proof of causation, but it alas remains the law.) Ex ante regulation, to the contrary, can operate on a more precautionary principle.  San Francisco, for example, has essentially reversed the burden of proof, requiring the toy manufacturers show the plastic contaminants are safe before selling the toys. There is precedent for this – consider new pharmaceuticals and the FDA.

The end of the CNN/Time article alludes to imminent litigation by toy manufacturers to “block the law.” One imagines that their theory would be preemption due to various EPA regulations in the area. Most recent preemption controversies, however, have again been focused on the preemptive effect of a federal regulation on ex post products liability. The San Francisco ban potentially complicates the analysis by pitting a stricter local regulation against a laxer federal one.

--EKC

Global Warming Study Group?

Although it is unlikely that President Bush will follow the Iraq study group's recommendations to the letter, the fact that this group existed at all -- and brought its collective wisdom to bear on the intractable problem of Iraq --  speaks volumes.  Perhaps we will finally stop "staying the course" in one context in which such a direction was leading so clearly into a brick wall.  Another area crying out for independent assessment and recommendations is American environmental policy.  It is not clear that this President has any intention other than to stay the course in the battle against global warming, which poses potentially even greater dangers to the planet than this president's myopia on Iraq.  The president should assemble, possibly with the assistance of the National Academies of Science, a high-level study group to analyze the current situation and make recommendations for public policy.  The President might even consider making Al Gore co-chair of this group.  Time is of the essence and something needs to be done.  A presidential study group might just give our policy makers sufficient cover to allow this Nation to once again be an international leader on a subject that concerns the entire world.
--- DLF