Shouldn't "Trade Secrets" Face a Sunset in Interests of Public Health?

August 27, 2014

One of the oldest tricks U.S. industry has used to hide the potential harm to public health done by chemicals it puts into the environment is to claim that their identities are trade secrets.

Now some environmental groups are calling for toxic trade secrets to have an expiration date.

The trade secrets loophole, established under the antiquated Toxic Substance Control Act of 1976, essentially defanged the requirement that companies report to EPA the chemicals they use that could harm public health by allowing them to keep them secret from the public. EPA's ability to actually regulate toxic substances under TSCA has been severely limited because of the loopholes written into it. The law requires EPA to meet a nearly impossible burden of proof that a chemical is harmful before it can be regulated. Only a small fraction of the chemicals in commercial use have been tested for environmental health effects.

Companies do not always have to substantiate or justify the basis for claims of trade secrets (commonly called "confidential business information" or CBI) under TSCA. After decades in commercial use, some secret formulas have been reverse-engineered and thoroughly understood or copied by a company's competitors. TSCA imposes no expiration date on CBI claims and does not require companies to re-substantiate them. EPA admits that it does not have the staff resources to check the validity of most CBI claims — which means in practical terms that merely making an unsubstantiated or invalid CBI claim is enough to protect the information from public disclosure.

A coalition of groups on August 21, 2014, petitioned EPA to issue a rule that would set expiration dates for CBI claims under TSCA. Represented by the nonprofit environmental law firm Earthjustice, the coalition includes the Environmental Defense Fund, Breast Cancer Fund, BlueGreen Alliance, Connecticut Coalition for Environmental Justice, and the New Jersey Work Environment Council.

The groups say that of roughly 24,000 chemicals that have been brought into the market since 1982, some 17,000 remain secret.

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