Current Frameworks for Addressing EDCs: Litigation and the Toxic Substances Control Act

There are currently two main ways to address harm resulting from human exposure to Endocrine Disrupting Chemicals (EDCs): litigation and the Toxic Substances Control Act. Neither is a satisfactory solution.

A. Problems of Litigation

There are numerous theories on which plaintiff’s might pursue redress after exposure to EDCs results in harm, however these are not an ideal solution because they can only redress rather than prevent injuries.

1. Potential Claims

There are several common law claims which could be pursued by victims of EDC exposure: negligence or battery, loss of consortium, or products liability. There are several different types of products liability claims, but design defect and warning defect are the most applicable here.[1]

Design defect standards vary but generally there are two approaches: either the consumer expectation test or the risk utility test. Under the 3rd Restatement of Torts this claim becomes less useful because it requires the plaintiff to prove that there was a reasonable alternative to the chemical at issue—this requirement might involve a great deal of research and money in proving.[2] Most courts have not adopted the 3rd Restatement of Torts, a design based products liability claim may work better in some places than others.

Warning defects follow a negligence standard, and generally the warning must be clear, understandable, and target the appropriate audience.[3]  This claim would be difficult to pursue however without legislation that mandates testing, without such mandated testing it is difficult to prove what dangers a manufacturer knew or should have known and thus warned about.[4]

2. Problems with Litigation Solutions

From a practical perspective, common law claims are not an ideal solution to EDC exposure because there is a great deal of scientific uncertainty which makes such claims very difficult to prove.[5] These uncertainties may be irresolvable at the moment because of the limits of our technology or scientific understanding, or may simply be the result of a lack of testing.[6] Within scientific uncertainty there are several specific difficulties: long latency periods before the effects or full effects of chemical exposure are seen, proof of causation[7], and identification of defendants.[8] The latency period has been shown to be an important handicap in DES litigation, “the effects of exposure often go undetected until the offspring of the exposed adults reach maturity, at which point it may be impossible to trace the abnormalities back to a specific source.”[9] These practical problems are even greater for victims with limited resources.

B. The Toxic Substances Control Act

The Toxic Substances Control Act (TSCA) was signed into law on October 11th, 1976.[10] TSCA applies to both new non-pesticide chemicals and those already in use and it provides EPA with the authority to engage in a variety of regulation of chemical substances, including requiring record keeping, reporting, and testing.[11] However there are very high standards before the EPA may require testing; this  difficulty has lead the EPA to create a voluntary, and thus more flexible, testing for chemicals produced in substantial qualities.[12]

And finally under TSCA the EPA has the authority to maintain an inventory of commercially manufactured chemicals and require newly manufactured or imported chemicals to be added to the list; the list currently holds more than 83,000 chemicals.[13]

C. How TSCA Has Failed And Why

TSCA was intended “to give public health far more of the weight that it deserves in the decisions by which chemicals are commercially made and marketed, by which they enter and spread throughout the human environment”[14] but unfortunately it has been largely ineffective. Burdensome legal and factual standards must be met under the law; before the EPA can actually regulate it must show that a chemical poses unreasonable risks.[15]  TSCA has ultimately failed to require even “basic screening level data for most chemicals in the marketplace.”[16] The EPA is especially constrained because thousands of chemicals were grandfathered in when TSCA was adopted, and the majority of chemicals used today are the same chemicals that have been produced for forty years.[17]

One of the biggest hurdles for the EPA under TSCA is that any action they propose must be the least burdensome of the options available.[18] Despite the EPA putting in years of research in Corrosion Proof Fittings v. EPA the Fifth Circuit struck down their ban on asbestos primarily because the Court did not consider this ban to be the least burdensome option available. If the EPA lacks the authority to regulate a chemical so widely known to be incredibly hazardous to human health, it leaves serious doubt as to exactly what the EPA can regulate under the standards in TSCA.[19]

– Katie Thompson, Associate Member


[1] REST 2d TORTS, 402a

[2] REST 3d TORTS-PL § 2b

[3] Id. at § 4a

[4] See e.g., Wendy E. Wagner, Choosing Ignorance In The Manufacture Of Toxic Products, 82 Cornell L. Rev. 773, 774-775.

[5] See Id.

[6] Id.

[7] Market Share liability theories may be helpful, in Sindell v. Abbott Laboratories, 26 Cal. 3d 588, the Court allowed the plaintiff to sue multiple defendants without establishing which proximately caused her injury and held the parties liable in proportion to their share of the market.

[8] Noah Sachs, Blocked Pathways: Potential Legal Responses to Endocrine Disrupting Chemicals, 24 Colum. J. Envtl. L. 289, 329 (1999).

[9]Chinue Turner Richardson, Environmental Justice Campaigns Provide Fertile Ground For Joint Efforts With Reproductive Rights Advocates, Guttmacher Policy Review, (2006), available at http://findarticles.com/p/articles/mi_m0773/is_1_9/ai_n25002879/.

[10]Toxic Substances Control Act, Pub. L. No.  94- 469.

[11] The Toxic Substances Control Act of 1976, 15 U.S.C. §§ 2603-2613

[12] Katy Bartelma, Ewa Budz And John Kraemer, Environmental Crimes, 44 Am. Crim. L. Rev. 409, 477 (2007).

[13] Id.

[14] See Daryl W. Ditz, Sustainable Directions In U.S. Environmental Law: The States And The World: Twin Levers For Reform Of U.S. Federal Law On Toxic Chemicals, 8 Sustainable Dev. L. & Pol’y 27, n5 (2007).

[15] See Sachs supra note 8 at 314.

[16] Dizt, supra note 14 at 27.

[17] Id.

[18] Id. at 28.

[19]Corrosion Proof Fittings v. EPA, 947 F.2d at 1207 (1991). Other asbestos cases were also unsuccessful: Asbestos Info. Ass’n of North American v. OSHA, 727 F.2d 415 (5th Cir. 1984); Building & Construction Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258 (D.C. Cir. 1988).

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