Industrial chemical regulation in the European Union and the United States: a comparison of REACH and the amended TSCA

In June 2016, after decades of debate, the U.S. Congress enacted a major revision to the Toxic Substances Control Act (TSCA) of 1976, the U.S. regulatory law applicable to industrial chemicals. It has been theorized that Europe may seek to export its stricter environmental standards under REACH to the United States. Thus, it is interesting to examine whether the environmental, health, and safety practices – including the values – found in REACH impacted the TSCA reform debate in the U.S. We chose to focus the comparison on the following issues that were central features of REACH: responsibility to develop safety data, priorities for safety assessments, definition of the safety standard, restrictions on chemical use, and preemption of regulatory activity by lower levels of government. There are three major findings. First, the U.S. did not implement the EU’s solution of putting the burden of data generation, risk assessment, and risk management on the industry. Second, REACH is more precautionary in its design than the amended TSCA. Third, the new U.S. law is generally less strict than REACH in their requirements on industry, though it is also less preemptive of lower levels of government than REACH is. Moreover, the U.S. retains a common law approach to chemical-induced injury that is more punitive of industrial errors than is European Union law. The EU’s attempt to export REACH regulation failed in the case of U.S.A., as the U.S. Congress did not reform TSCA based on the REACH model. We conclude that, although the problems identified prior to the enactment of REACH were similar to those identified in the U.S., REACH’s key principles and elements were not adopted in the U.S.