How Safe are Common Chemicals? It’s Time to Shift the Burden of Proof to Manufacturers

It's Time to Shift the Burden of Proof for Dangerous Chemicals to Manufacturers

What do artificially colored breakfast cereals, plastic bottles, and tomatoes have in common? All are present in American supermarkets without a federal regulatory body ever testing them for dangerous chemicals, of which there are likely many.

“In this country, FDA and EPA are placed with the burden of trying to prove that something is unsafe,” explains Bill Walker, Vice President and Managing Editor at the Environmental Working Group, “rather than the companies having to prove that it is safe.”

This backwards process may sound like something out of a dystopian novel, but it’s the truth of the system we’re living in.

How is This Possible?

This shocking state of affairs is due in part to manipulation of GRAS (Generally Recognized as Safe), an FDA rule that allows companies to begin selling products containing ingredients backed, not by FDA, but by independent researchers.

“Manufacturers can determine whether something is GRAS in secret, without telling the government,” reported Consumerist in August, referencing a 1997 FDA rule that allowed companies to merely notify FDA of the safety of an ingredient, without asking for validation of the independent science.

This procedure creates ample possibilities for items like carrageenan, MSG, bovine growth hormones, and Olestra to make it into our food system before FDA.

While according to Walker, FDA is always able to ask for further studies, he also notes that “this typically results in a years-long back and forth with the companies, and it’s still very hard to prove that there’s a problem. The way the law is structured right now, we basically put all the cards are in the company’s hand.”

“Many of the most unhealthy companies in the world are also the largest,” notes Tara Mackey, author of Cured by Nature and founder of The Organic Life. “They still dominate the market at the moment, and they fight hard to make sure that they can skirt as many label requirements as possible in order to keep making and selling their products to us.”

In addition, until June of last year, EPA’s hands had been tied by a 40-year-old chemical law known as the Toxic Substances Control Act, a law that environmental groups called “one of the worst environmental laws on the books,” according to the Washington Post.

While the burden of scientific proof was somewhat lessened by President Obama’s modification of this law in June, the original wording set such a high threshold for proof that EPA’s evidence against asbestos, which kills as many as 15,000 Americans a year, wasn’t enough to get it outlawed on the federal level.

In the last four decades, EPA has tested only about seven percent of the roughly 3,000 high-volume chemicals used in the U.S. – and banned only five of the more than 80,000 total chemicals used.

How are We Solving This Problem?

Despite this summer’s law, EPA will continue to face “substantial hurdles” in reviewing the tens of thousands of potentially dangerous chemicals on the market according to the International Business Times, since it lacks necessary funding and staffing power.

The Environmental Working Group also notes that the new law could backfire, as it strips states of their power to stop products from going to market pending a three-year EPA investigation.

In addition, chemical companies can continue to tie up EPA’s oversights in courts, making the process even longer and more laborious than it needs to be.

Carli Jensen, the toxics campaign director at U.S. Public Interest Research Groups, says it may take a full generation before Americans see the benefits of the reforms. This is especially true given the plan to test just 20 chemicals at a time, with a deadline of seven years per chemical – and the new law doesn’t even apply to pesticides used in food production.

The new law also doesn’t get to the root of the problem – it shouldn’t be up to FDA and EPA to prove toxicity, when it would be far easier for manufacturers to be forced to prove the safety (or lack thereof) of the potentially dangerous chemicals they’re using.

“No other developed country that we know of has a similar system in which companies can decide the safety of chemicals put directly into food,” notes Natural Resources Defense Council senior scientist Maricel Maffini.

The European Example

Our neighbors to the east have a completely different system for verifying the safety of chemicals: in Europe, it’s the “exact opposite” according to Walker.

“Before introducing a new chemical into commerce, the companies have to prove that it’s safe,” he says. “The burden of proof is on them, as it should be.”

Europe generally tends to “rely more on the precautionary principle,” according to Dr. Linley Dixon of the Cornucopia Institute. The European Union operates with stricter health standards than the U.S. and “aims at ensuring a higher level of environmental protection through preventative decision-taking in the case of risk,” the European Commission notes.

After consulting the same 2007 double-blind study that showed that eating artificially colored food increased children’s hyperactivity, for example, European authorities placed warning labels on products containing them (and UK authorities barred them entirely), whereas in the U.S., FDA found the study inconclusive and allowed for the continued use of these dyes. Other products, such as atrazine and neonicotinoids, which are highly regulated or even banned in the EU remain present in the U.S. due to this method.

How Do We Regulate Dangerous Chemicals in the U.S.?

Since our hands are tied at the federal level, alternative ways of regulating potentially toxic substances have arisen in the U.S., often occurring at the consumer level by way of lawsuits.

Sometimes, consumers don’t even have to make it as far as court, according to Dixon, who notes that the NOSB decision to remove carrageenan from organic food last November stemmed entirely from consumer demand; the scientific evidence wasn’t enough to sway the Board, but consumer voices were. It’s no wonder that Walker and the EWG are appealing to consumers to petition FDA to tighten restrictions on PFCs in food contact paper like fast food wrappers and pizza boxes.

These restrictions very rarely manifest as full-out bans; instead, EPA and FDA often opt for negotiating voluntary limits and phase-outs, a hallmark of the American approach to chemical regulation manifested in such announcements as Panera’s decision to remove all artificial additives from its food in 2016 or General Mills’ commitment to ditch artificial colors in 2015. Nike, Walmart, Target, Walgreens, and Apple are some of the many companies that have stricter chemical policies than American federal law.

Consumers, then, can choose to trust individual companies whose mission statements they believe in, or even opt to buy foods verified by independent labels, such as USDA certified organic or non-GMO Project.

Still, some groups, like the Tendr (Targeting Environmental Neuro-Developmental Risks) Coalition continue to appeal for more research and federal regulations when it comes to certain dangerous chemicals and substances, like organophosphate pesticides, flame retardants, lead, phthalates, and combustion-related air pollutants.

“Before we can prescribe medicine, we have to prove it’s safe,” explains Dr. Jeanne Conry, obstetrician-gynecologist and Tendr member, to the New York Times. “So how come with the chemical industry, we assume everything is safe and have to prove there’s harm?”

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Emily Monaco is a food and culture writer based in Paris. Her work has been featured in the Wall... More about Emily Monaco