Chemical Manufacturers and the Food Industry: Protecting the Public from Unsafe Chemicals or Protecting Market Share?

Recently, the Milwaukee Journal Sentinel and the Washington Post wrote stories about a leaked memo summarizing a meeting of chemical and food industry leaders, in which they discussed their strategy for a media offensive to defend the chemical Bisphenol-A (BPA) from federal, state and local legislative efforts to reduce or eliminate its use in a host of products, including baby bottles and food can liners.   

The memo should not be a one day story, both because its contents are equal parts hilarious and horrifying, and because it provides a roadmap for how the chemical manufacturers, and at least some companies that use chemicals of questionable safety - like BPA -- in their products, are likely to respond to a broader federal effort to fix the country's current failed system for assessing the safety and regulating the use of chemicals everyday products.

BPA is used to make a host of consumer products, including plastic baby bottles, and is used in the lining of food, beverage and infant formula containers. Research shows that people are exposed to BPA by drinking from polycarbonate bottles and consuming food from containers made using BPA, like the linings of soup cans. The Centers for Disease Control found that the majority of Americans carry residues of BPA in their bodies (it was detected in more than 90% of those tested by CDC). Low-levels of Bisphenol A exposure have been associated with cancer of reproductive organs, abnormal brain development, and abnormalities in fat metabolism in animal studies.  Recent studies in humans are finding evidence of similar harm. My NRDC colleague Dr. Sarah Janssen has written extensively about BPA.  You can find her posts on that and other chemicals of concern, including phthalates and flame retardants here.

BPA ought to be regulated - and exposure to it curtailed -- by the Toxic Substances Control Act (TSCA) -- the law that regulates the use of industrial chemicals. Unfortunately, the law, enacted in 1976 and never updated since, has proven to be extremely weak, and is generally considered the greatest failure of the major environmental laws. 

A combination of problems with the statute itself, and the way it was interpreted in a particular court case, have drastically limited the ability of the Environmental Protection Agency (EPA) to obtain information from companies - and provide the information to the public -- about the potential environmental and health effects of the chemicals they produce, or limit the amount of human exposure to such chemicals, by regulating their use in commerce.

Perhaps the best example of how tightly EPA's hands are tied when it comes to regulating industrial chemicals is its unsuccessful effort to ban most uses of asbestos, one of the deadliest chemicals currently known.  EPA spent ten years developing a record on the dangers of asbestos.  But EPA's regulation was thrown out in 1991 by a conservative federal court on the grounds that the agency hadn't met its burden under TSCA to show that the health risks posed by asbestos were "unreasonable" and had not shown that the ban on most uses was the approach that would be least burdensome to industry.  That decision essentially rendered TSCA inoperative.

Of course, asbestos is just one chemical.  When TSCA was enacted in 1976, there were approximately 62,000 chemicals already in use in commerce, and the law "grandfathered-in" those chemicals, meaning that they were not required to undergo any assessment for their environmental and health impacts by EPA.  To date, only about 200 of those 62,000 chemicals have undergone a complete assessment of their impacts.  Since TSCA's passage, roughly 22,000 more chemicals have been approved for use by EPA.  While these new chemicals have undergone some amount of review, the law's provisions severely limit the agency's authority to obtain sufficient information to fully assess the potential impacts of a substance. For an excellent and detailed analysis of the problems with how "new chemicals" are regulated under TSCA, read the blog posts of EDF's Richard Denison which you can start here.

So, if you, like most people, assume that the chemicals that are in many of the products you buy, including household cleaners, furniture, toys, clothes, building materials, food packaging and containers, children's products etc. have been thoroughly vetted for safety before being allowed on the market, and they all check-out, think again. The Government Accountability Office (GAO) has written in detail about the many problems with the current system for regulating toxic chemicals, and recently rated it as a "high priority" for reform (along with the system for regulating our financial markets!).  

On the positive side, legislation to reform the Toxics Substances Control Act has been introduced in previous Congresses, and the reform effort is widely considered in Washington DC to be the next major environmental issue behind Climate Change that will be the focus of attention in Congress.  A revised version of the reform legislation is expected to be introduced sometime this summer by its Senate and House champions, Senators Frank Lautenberg (NJ) and Barbara Boxer (CA) and Representatives Henry Waxman (CA) and Bobby Rush (IL).  The legislation is similar in its approach to suggestions made by the GAO in its previous reports on the need for TSCA reform.  Effective chemical reform legislation would:

• Require all new or existing chemicals to be tested for safety, with the burden of proof on the chemical industry to demonstrate that a chemical is safe;

• Ensure that safety standards for chemicals are established to protect children and other vulnerable or over-exposed sub-populations;

• Strengthen the public's right to know about the safety and use of chemicals;

• Provide EPA with clear and streamlined authority to reduce or eliminate exposure to chemicals where necessary to protect the public.

As the momentum builds for reforming our system to ensure safer chemicals and healthy families, the chemical manufacturers industry has been adjusting its public rhetoric to appear more amenable to strengthening the current system. Publicly, the American Chemistry Council (ACC), the trade association for some of the nation's largest chemical companies (formerly known as the Chemical Manufacturers Association), has offered general endorsement of the concept of TSCA reform (as opposed to a few short years ago when a representative for the ACC testified before Congress about how well TSCA was working and argued that no changes were needed).

But the recent industry memo outlining the strategy discussion on how to address the public concern about the potential safety issues raised by BPA, and the public desire to switch to use of safe (or at least safer) chemicals from less safe ones, demonstrates that behind closed doors key industry trade associations - including the ACC, the Grocery Manufacturers of America, and the North American Metal Packaging Alliance and even individual companies like Coca-Cola, Del Monte, and ALCOA, are gearing up for a costly (perhaps in ways they didn't anticipate) media campaign to thwart chemical policy reform, and convince the public that it has to choose between exposure to (and consumption of) unsafe chemicals or loss of access to affordable necessities like infant formula and baby food.

While the memo on this meeting is specific to Bisphenol A, it is indicative of the approach the industry is likely to take in response to broader policy proposals: scare tactics, cynical and divisive targeting of "minorities (Hispanic and African American) and poor," exaggerated claims about the costs of regulation and the "benefits" or "necessity" of continuing to use and be exposed to unsafe chemicals, and dismissing or ignoring legitimate science-based concerns about the risks posed by specific chemicals.  The memo speaks for itself, and I'm hesitant to highlight particular passages since its cumulative impact as a whole is even greater, but here are a few key points that jumped out at me:

1. The memo states: "Attendees suggested using fear tactics (e.g. 'Do you want to have access to baby food anymore?')."

Industry and their allies love to suggest that environmental and public health groups are exaggerating concerns to scare the public (usually this is accompanied by the suggestion that these non-profit groups are getting rich by virtue of scaring people).  So there is some irony that these industry groups are literally discussing use of "fear tactics ...to dissuade people from choosing BPA-free packaging."  There is no indication in the memo that anyone spoke out against using such tactics, or that an agreement was reached at the meeting to refrain from doing so.   

2. The memo notes that members "have already spent hundreds of thousands of dollars" on "traditional media outreach" (probably to convince people that BPA is safe and should not be subject to regulation) and are "guesstimating" that they will need to spend another $500,000 "for the entire project." 

Presumably these costs will be passed-on to consumers of their products via higher prices.  I guesstimate that most people would rather pay a few cents extra for a safer product that doesn't contain (and leach) one or more chemicals that could lead to cancer, infertility, or developmental defects anywhere from thirty years to a generation down the road, rather than for a media campaign designed to convince the public of the "benefits" of being exposed to unsafe chemicals.

3.  According to the memo: "The committee doubts obtaining a scientific spokesperson is attainable" [and therefore] "their 'holy grail' spokesperson would be a 'pregnant young mother who would be willing to speak around the country about the benefits of BPA.'" 

Considering that virtually every industry infamous for poisoning the public, including the tobacco industry, can usually find at least one scientist willing to stand up in defense of the deadly product, it is remarkable that the BPA industry doubts they can find such a spokesperson. Maybe they could just hire someone to pretend to be a credible scientist?

Re the "holy grail" of a pregnant mom willing to tour the country and campaign on behalf of the benefits of BPA, it is unclear if they will be looking specifically for a pregnant young mother whose body, breast milk and fetal cord blood currently contains BPA to  speak about its benefits.  That may be easier though than finding a pregnant woman without evidence of exposure.

4.  The memo suggests that, at least for the purposes of this meeting, those in attendance were not interested in evidence that BPA is unsafe, or looking for safer alternatives, only in convincing legislators and the general public that the risks are a worthwhile tradeoff and that, above all, BPA should not be avoided at all costs. 

See for example the description of the discussion of Proposition 65 in California, "which requires the Governor to publish a list of chemicals known to the state to cause cancer or reproductive toxicity."  The memo suggests that those attending the meeting assume that BPA will be listed under Prop 65, and there was no discussion or debate over the fact that BPA might be listed as a known carcinogen or reproductive toxin.  Instead, the attendees discussed forming a coalition to submit comments to the state regarding "the benefits of BPA."

5. According to the memo: "Eventually, the committee concluded before deciding on the tactics to spread their messages, they need to develop the messages. The committees plan to fund a joint survey and message testing-what new messages they need to sell-before implementing a website and creating materials. Another task group will be implemented to finalize how to develop messages and aggressively use electronic media to deliver those messages."

So, head's up everybody, and especially if you are among the "young mothers ages 21-35 and students" or "minorities (Hispanic and African American) and poor" that are, according to the memo, the special target demographics of the BPA industry's campaign: if  you pick-up the phone and are invited to complete a survey, or participate in a focus group, about the chemical Bisphenol-A, you may be witnessing the industry's "message testing" and "grassroots outreach" strategy in action.  If you are asked to "vote" on the "benefits" of BPA versus the health risks, I urge you to vote "no" for more exposure to unsafe chemicals, and "yes" for a system that gives us safer chemicals.

Of course, we know that not all companies that produce or use chemicals, or that are members of the American Chemistry Council or the North American Metal Packaging Alliance (NAMPA) or the Grocery Manufacturers of America (GMA), endorse this kind of approach to addressing the failure of our federal laws to protect the public from unsafe chemicals.  As with any environmental or public health issue, there are industry leaders and laggards.  One recent example of a leader is SC Johnson, a company that responded to concerns raised by NRDC and others about the use of phthalates in their air freshener products, and have stepped out in front of other companies in their voluntary disclosure of the ingredients used in their products.  NRDC's President Frances Beinecke praised SC Johnson's leadership in a blog post you can read here.  We look forward to working with those companies that are serious about establishing a system that ensures safer chemicals are used, and unsafe chemicals are replaced, and the public has complete information on the health and environmental effects of chemicals, and which chemicals are contained in specific products.

But for the SC Johnsons out there in the ACC, NAMPA, GMA, Consumer Specialty Products Association and other key trade associations to be emboldened to break from the lowest common denominator positions of their colleagues (and this memo if nothing else illustrates a lowest common denominator way of thinking), they not only need positive reinforcement for the steps that they take, but companies caught mulling strategies for scaring or bamboozling young mothers and minority communities need some negative feedback as well.  And member companies of these trade associations need to make clear whether they support or oppose the kinds of tactics being discussed.

The Environmental Working Group has launched an action alert for people to express their displeasure with Coca-Cola and Del Monte, two of the named companies that attended the BPA meeting. What about the other companies that belong to these trade associations?  You can find the lists of the companies belonging to these trade associations here, here, and here. 

Meanwhile, investigations into the meeting described in the memo, and industry's other BPA-related efforts have been initiated at the federal level by Congressmen Henry Waxman and Bart Stupak (they chair the House Energy and Commerce Committee and that committee's Investigation and Oversight Subcommittee respectively) and at the state level by Connecticut Attorney General Richard Blumenthal.  Last week, Rep. Waxman's Committee reported a food safety bill including provisions by Rep. Ed Markey that will require FDA to determine by the end of this year whether BPA is safe for use in food and beverage containers and, if not, what actions FDA intends to take to protect the public from exposures to the chemical.

People should expect that new scientific studies will be released, showing both greater public exposure to BPA than previously estimated, and further validating concern about the chemical's safety.  Eventually, policies at the federal and state level will be driven to provide greater protection for the public's health, not only from BPA, but from thousands of other chemicals that are permitted for use despite the lack of information on their safety.  How soon that happens, and how strong the protections that are adopted will be depends in part on what industry groups, businesses and their trade associations do to either facilitate or block meaningful reform of the nation's chemical policies. 

The primary interest of most of these companies is selling their products - canned food, cleaning supplies, personal care products, etc. -- to the public. Nothing wrong with that per se, but it would be good to know how far they are willing to go to ensure that a potentially unsafe chemical continues to be used in their products, or prevent reforms that will remove unsafe chemicals from the market, and provide the public with greater information about the health and environmental safety of chemicals they use and are exposed to every day.  Do they endorse the use of "fear tactics" to maintain market share for Bisphenol A?  What about other chemicals of concern?  How much are they willing to spend, and how strongly do they support the efforts of their trade association to mislead the public (including members of Congress) and prevent meaningful chemical policy reform? 

More and more, customers will be asking companies - manufacturers and retailers - these kinds of questions.  It will be interesting to see what kind of response they get; and whether their words in public will match the things they are saying in private. The BPA memo is a disturbing early sign that some very important industry interests are going to be aligned against the public in this critically important effort to reform how this country evaluates the safety of chemicals, and protects people from those that are unsafe.  That said, the public's voice, when unified, can be loud and powerful, even in the halls of Congress.  Protecting ourselves, our families, and future generations from exposure to persistent, toxic, and unsafe chemicals seems like something worth speaking up for.  Loud and clear.