Chemical safety reform presents a rare opportunity for legislators on both sides of the aisle to work together to protect the health and well-being of women and their families. Unfortunately, bipartisan does not always mean better. 

This week two bills were introduced in the U.S. Senate to improve chemical safety in the country: one by Sens. Barbara Boxer (D-CA) and Ed Markey (D-MA) and one by Sens. Tom Udall (D-NM) and David Vitter (R-LA). Although the Boxer-Markey bill does more to combat hazardous substances in our environment, the Udall-Vitter bill is getting far more congressional support. However, the Udall-Vitter legislation does not sufficiently protect reproductive health, particularly for the most vulnerable communities. 

Mounting scientific evidence indicates that the products we use every day—as well as the air, soil, and water around us—contain chemicals that harm our reproductive health. Studies on animal subjects have linked chemicals in the environment to male and female infertility; reduced sperm count and quality; alterations in ovarian function and menstruation; endometriosis; altered prostate development; and puberty onset. In addition, researchers have linked environmental chemicals to altered fetal development, miscarriage, and preterm birth in humans.

Moreover, the harm caused by chemicals in our environment is not shared equally. Low-income communities and communities of color are much more likely than other groups to be directly exposed to harmful chemicals at work, at home, and through consumer products. Increased exposure to these chemicals puts these communities at greater risk for reproductive health problems. For instance, almost 25 percent of Black girls and 15 percent of Latina girls had breast development by age 7 in one long-term study out of San Francisco, compared to just 10 percent of white girls. 

Both Republicans and Democrats agree that the current regulatory system is seriously flawed, providing the Environmental Protection Agency (EPA) with little power to remove even the most dangerous chemicals from the market. And while the Udall-Vitter bill improves current law by providing a health-based safety standard that must consider the impact of chemicals on vulnerable communities such as those living near a factory or pregnant women, it significantly undercuts this improvement with an overreaching preemption clause.

Preemption is the constitutional doctrine that, in certain issues of national importance, federal law must take precedence over state laws. Under the current Toxic Substances Control Act (TSCA), the preemption clause allows a state to regulate a chemical until the EPA actually imposes a restriction it—at which point the state is generally prevented from acting.

This is important because in the absence of effective federal regulations, states have stepped in to protect citizens from harmful chemicals. There are more than 150 laws in 35 states that restrict or regulate chemicals. 

The Udall-Vitter legislation departs significantly—and harmfully—from current preemption in TSCA. Under this proposed bill, states would not be able to take action after a chemical has been designated by the EPA as “high priority.” This means that before the EPA has taken any action to restrict or limit the use of a high priority chemical, states would be blocked from taking action on it. This would create what the California Attorney General called a “regulatory void” in an open letter regarding the Udall-Vitter bill. And this is bad for reproductive health.

Given the timelines outlined in the legislation, it could take the EPA at least five-to-seven years to complete a safety assessment of a chemical. Since the states’ hands are tied during this time, the chemical industry will have every incentive to stall EPA action through litigation and other shenanigans. Years could tick by with no action, with continued exposure to dangerous chemicals and with continued potential harm to reproductive health, fetal development, and fertility. And this is for “high priority” chemicals—chemicals that we have good reason to believe are harmful to our health. 

In contrast, the Boxer-Markey bill enables states to continue to protect its citizens from harmful chemicals in the absence of federal action. No loophole. No regulatory void.

The Safer Chemicals Healthy Families Coalition, a diverse coalition of 450 public health, environmental, labor, and business organizations (of which RHTP is a member), have asked the proponents of the Udall-Vitter bill to fix the preemption problem so that it would occur only after the EPA imposes restrictions on a chemical. So far, those requests have been ignored.

While there are other troubling aspects of the Udall-Vitter bill, the disingenuous interplay between the better safety standard and the much worse preemption, underscores that this legislation—despite being bipartisan—is not an improvement for reproductive health.

In the coming weeks, we urge senators who care about reproductive health, fetal development, and infertility to support the Boxer-Markey legislation or work to get much needed changes to the Udall-Vitter bill.