CPSC staff May 21 addressed the issue of the precautionary principle at a meeting on phthalates. Nancy Buermeyer, of the Breast Cancer Fund, asked if agency staff took a precautionary approach to data, wondering if there needed to be “unimpeachable science” to act on the issue of phthalates, likening the issue to tobacco and asbestos which “cost lives” while being investigated.
CPSC Director of Health Services Michael Babich replied that CPSC staff deals with the facts and science and generally presents a range of options to the commission, which can choose from those, or “often times, [they] move past options presented and identify their own.”
The fund’s Daniel Perkins pressed further to find out, aside from science, if factors like economic impact or cost-benefit analysis are taken into account when making recommendations. Babich, who is managing CPSC’s current phthalates assessment, answered, “We are charged by statues to factor many things, including cost factors into account.”
Buermeyer and Perkins were at the agency to discuss the process of how CPSC issues rule changes and to glean information about the progress of the Chronic Hazard Advisory Panel (CHAP) studying phthalates. Buermeyer’s San Francisco-based group seeks to prevent breast cancer by studying the link between chemicals and breast cancer.
Regarding the CHAP, Perkins asked how faithfully CPSC would adhere to the recommendations. CPSCer Mary Ann Danello responded, “The purpose of going to the CHAP is for advice, and it would behoove us to take it into account.”
CPSC staff also told Buermeyer and Perkins that a June 29 CHAP teleconference should signal the creation of its draft report which would go out for 30-day peer review. Once a final report is submitted, a 180-day period begins which includes CPSC staff formulating recommendations, commissioners responding to staff comments, and a 75-day comment period.
Perkins inquired as to what information would be publicly available, and Danello closed the meeting by explaining, “The process would ultimately be transparent with everything, including the peer review draft, made public.”
Nord Worries about Precautionary Principle with Phthalates
Commissioner Nancy Nord, in a May 23 guest piece on a University of Pennsylvania blog, expressed concern about use of the precautionary principle. She asserted that on CPSC’s recent actions on lead, the approach “drove out of balanced decision making.” She expressed concern that commission decision making on phthalates would follow a similar tack. She wrote on RegBlog (www.law.upenn.edu/blogs/regblog/2012/05/time-to-discard-the-precautionary-principle-at-the-cpsc.html):
“In the CPSIA, Congress treated phthalates similarly to lead: it imposed some hard and fast requirements, but it also gave the Commission some breathing room to make reasonable judgments about safety. Three phthalates were banned permanently; three others temporarily, until the Commission decides whether the ban should be extended.
“Before making that determination, the Commission will consider the still pending conclusions [of the CHAP]. Further, the Commission will decide after notice-and-comment rulemaking, which can include the type of data-driven analysis that the Commission declined to engage in during the lead cap debate. The outcome cannot be predicted at this early date, but a return to our former practice of assessing risk and exposure in making health and safety regulatory decisions would be welcome.”
