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Trade Secrets

Insights: Legitimate confidential business information must remain part of chemical control law

by David J. Hanson
January 18, 2010 | A version of this story appeared in Volume 88, Issue 3

Credit: iStock
Credit: iStock

One of the battles facing the chemical industry in 2010 will be fought over congressional efforts to strengthen the 1976 Toxic Substances Control Act (see page 10). Lisa P. Jackson, administrator of the Environmental Protection Agency, has already moved to bolster the agency’s review of chemicals (C&EN, Oct. 19, 2009, page 28), and organizations on all sides of TSCA reform have been laying the groundwork for this year’s debate.

So far, many of the arguments center on EPA’s lack of authority to force chemical makers to provide detailed health and safety data on the chemicals they manufacture. Supporters of stronger controls, including the Obama Administration and environmental advocacy organizations, contend that the chemical industry is getting a free ride under the current law because it is not required to do toxicity testing on chemicals already being produced. Industry representatives agree that the law needs modification, but they are balking at some of the ideas being discussed.

Of special concern is the law’s liberal interpretation of “confidential business information.” According to the Washington, D.C.-based Environmental Working Group (EWG), because of unnecessary confidentiality claims, chemical companies are threatening human health. The group bases this claim on its analysis of EPA data, which was completed last month, for the frequency of confidentiality claims by companies submitting new chemicals for review (

That analysis says that data on 17,000 of the more than 83,000 chemicals in the TSCA inventory of commercial chemicals are “secret” and that, historically, EPA gives in too easily to companies when they assert that data are confidential business information. Because the public has no access to the confidential business information of a chemical submitted for inclusion in the inventory, EWG insists that the industry has thousands of secret chemicals in products that “directly threaten human health.”

This allegation is a stretch even for EWG, which has a reputation for making sensational claims of health threats from chemicals. Even if information about a chemical is not public, EPA reviews all the available health and safety data for the compound before allowing its manufacture or importation. If these data are poor or incomplete, the agency can ask for additional information. Just because companies want to claim the information confidential does not make the compound dangerous, which is what EWG is implying.

There are no secret chemicals on the market, said the American Chemistry Council, which represents most of the U.S.’s largest chemical manufacturers, in a statement reacting to EWG’s claims. “In those cases where a specific chemical identity has been claimed confidential, the manufacturing and use of that substance must always fully comply with the requirements of the law,” ACC stated. Full compliance includes disclosing any information on significant risks to health and the environment.

The Society of Chemical Manufacturers & Affiliates, which represents the batch and custom chemical industry, refutes the charge that industry is at fault on this matter. “Even if the information is deemed confidential, it is still up to EPA to make the final determination about the safety of the chemical,” says William E. Allmond IV, SOCMA vice president for government relations. SOCMA is aware that the chemical industry might have been too quick to claim information on chemicals as confidential in the past, but Allmond tells C&EN that the trade group is working with its members to exercise this claim more prudently in the future.

But the primary problem is the law. The chemical industry is highly competitive; maintaining a slight edge by keeping new compounds confidential is critical to companies’ survival, and TSCA allows it in spades. Not only can a company claim confidential business information for any chemical submitted for review, but the law also imposes heavy penalties—including jail time—on anyone who reveals that data. That EPA seems to favor industry is not the result of policy or whim—it is because that is what the law demands.

“The solution is not as simple as requiring all information to be fully disclosed in all cases,” writes Richard Denison, a senior scientist with the advocacy group Environmental Defense Fund, in his thoughtful blog ( There are legitimate reasons for keeping data secret, he notes, at least for a period of time. Although he strongly favors full disclosure of product ingredients, Denison writes that it is the law that has “tied EPA’s hands both legally and resource-wise in any effort to challenge or rein in such claims where they are not legitimate.”

The claims of confidential business information will be part of the debate on TSCA reform, and they deserve a more nuanced analysis than EWG’s crude “investigation.” Congress and the Administration need to be cautious when they rewrite laws with major impact on the nation’s industries. As ACC said in its statement, “Balanced confidentiality laws help protect the trade secrets that foster innovation and create jobs.” And of all the needs that the Administration has emphasized over the past year, the greatest has been for jobs and innovation.



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