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Known Unknowns

By Baskut Tuncak

Baskut Tuncak, Staff Attorney

In reflecting on his revolutionary achievements, Sir Isaac Newton explained, “If I have seen further it is by standing on the shoulders of giants.”  Implicit in this statement is the recognition of information as an essential part of the foundation for technological innovation.

In the 21st century, information has captured the attention of a broad spectrum of actors, namely:  authors (James Gleick), on its historical role; internet powerhouses (Google), as a matter of foreign policy; and even the U.S. Supreme Court (FCC v. AT&T Inc.), with respect to a corporation’s right to privacy.

While the importance of information isn’t exactly a new idea, in the world of chemical policy, the confidentiality of certain types of information can directly affect public health and hinder the innovation of safer alternatives. 

As customers and the public seek greater access to information on chemicals that may affect their health and the environment, industry strives to protect valuable commercial secrets.

During several years as a research chemist, my work to develop innovative products and processes for the biotech industry was more about managing information than colorful, bubbling liquids.  I know first-hand how much effort goes into developing information on new chemicals, new applications, new processes, and new markets.  I understand industry’s desire to protect the confidentiality of valuable information.

Behind the curtainAs a public interest attorney, I also know that certain information is vital to protect public health and the environment.  Access to information is necessary for the proper functioning of both the market and democracy, by allowing consumers to leverage their purchasing power and helping to ensure the accountability of policy makers.  This has been a recurring theme in my work on both intellectual property and environmental laws.  Under the Toxic Substances Control Act (TSCA), chemical manufacturers have little incentive to reveal health and safety information.  Rampant claims of confidential business information (CBI)—most of which fail to qualify under closer scrutiny by regulators—compound this gap in health and safety information.

For example, of the more than 84,000 chemicals on the TSCA inventory, the identity of more than 16,000 chemicals is kept secret from the public.  The mere fact of the existence of a chemical in commerce, which a TSCA Inventory listing denotes, in no way qualifies CBI claims as a legitimate trade secret – not when it is wholly divorced from any mention of who makes or uses the chemical or for what purpose.  Richard Denison at EDF has blogged extensively on the overly broad scope of CBI claims under TSCA, and the resulting problems this creates for public health and the free market.

CIEL supports policies that encourage innovation toward genuinely safer, “greener” alternatives, including new chemicals, new products, new processes, and new applications, in fulfilling our mission of protecting human health and the environment.  Reforming the treatment of CBI under TSCA is part of the solution.  However, a high-level lobbyist for the chemicals industry trade association argues that “There are no ‘secret’ chemicals on the market.”

Seriously?  EPA Assistant Administrator Steve Owens, on the agency’s inability to protect human health and the environment under TSCA, stated:  “The American people are entitled to transparent, accessible information on chemicals that may pose a risk to their health or the environment.  [EPA] will continue taking steps that increase transparency and assure the safety of chemicals in our products, our environment and our bodies.

Regarding these steps, EPA announced a new policy last year to get tough on companies that mask the identity of chemicals when submitting information indicating that the chemicals present a “substantial risk” to human health or the environment.  In February, EPA began to follow through, notifying five companies that they could no longer claim the identity of such chemicals as confidential.  On March 24, 2011, EPA announced the declassification of 42 health and safety studies that were previously claimed to be CBI.  This is a start, but it has taken over one year, and 28 of these were only possible because of the voluntary action of companies.   Clearly, comprehensive chemicals policy reform is necessary.

In future blog posts, I will explore how better treatment of CBI under TSCA and other policy improvements can help accelerate and steer innovation towards safer chemicals.

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