How to be Smarter in the Fight Against Chemical Toxins

Chemical toxins are found in everyday products such as our clothing and furniture; cosmetics and household cleaners; medical and health aids; and, often, from the materials we handle or are exposed to at work. Think of them as chemical bullets, made up of molecular toxins such as pesticide residues, industrial pollutants, and heavy metals. As a nation, we should take the chemical bullets assaulting our bodies as seriously as ones fired from guns.

The body count for chemical bullets is far larger. Estimates link some nine percent of all cancers with toxic exposures from our environment, work, food additives, industrial products, and medical procedures and drugs. This means, using the American Cancer Society’s Facts & Figures 2019, nearly 159,000 cases of cancer and 55,000 deaths per year are associated with chemical bullets. Indeed, because cancer’s appearance can take decades and arise from multiple contributing factors, this estimate may well be too low.

The President’s Cancer Panel noted in 2010, “The American people—even before they are born—are bombarded continually with myriad combinations of these dangerous exposures.” The report called current estimates “woefully out of date.”

Given that 41% of all Americans will be diagnosed with cancer in our lifetime, even at nine percent, this is a far higher toll than the 39,773 and 100,120 gun-related deaths and injuries the same year, as reported by The New York Times and Everytown.

I’ve been both victim and witness to the tragic unfolding of America’s chemical-toxin nightmare.

As an investigative reporter at LA Weekly, I began writing about the environment after I learned that DDT-contaminated waste sludge had been dumped into the waters where I fished in the Santa Monica Bay. My investigative articles and testimony before Congress led to my appointment to represent the public interest at the National Academy of Sciences in Washington DC. I am now executive director of the consumer advocacy organization Chemical Toxin Working Group (CTWG) in California that litigates against companies selling toxic products.

Throughout it all, I’ve met, interviewed, and formed bonds with the victims of chemical assaults. I have written about towns throughout the US that have been decimated by the appearance of a toxin in their wells, soil, or air. To fight back and resist, CTWG has taken on and won litigation against some of the most popular consumer brands today—from shampoos like Herbal Essences and Pantene to dietary supplements with undisclosed carcinogens and reproductive toxins—and made powerful corporations remove, reduce, or disclose them on their labels. But our successes are often limited to California. We need to create the same nationwide, public urgency that we have for gun control.

Yet, while the gun lobby is visible and vocal, as represented by the almost comic-book like character of the National Rifle Association’s leader Wayne Robert LaPierre, Jr., the corporate trolls in the chemical industry work quietly with their vast sums of money and influence. Chemical-related interests gave almost $16 million in contributions in the 2016 election but the gun lobby less than half that amount, according to Opensecrets.org.

CHEMICALS HAVE MORE RIGHTS THAN CITIZENS

As with gun control, we simply don’t have an effective safety net of laws to protect us. Even our nation’s most notable environmental laws, such as the Toxic Substances Control Act (TSCA), are riddled with loopholes.

I was barely out of my teens when TSCA became effective in the fall of 1976, signed into law by President Gerald Ford. I naively thought it was written to protect me, and that I was being looked out for by my government. In truth, TSCA gave chemicals more rights than citizens and “grandfathered” into full use some 62,000 chemicals, many never studied for their health effects, without requiring any additional testing or label disclosures even when they were contained in products we brought into our homes or slathered on our bodies. For the 22,000 new chemicals introduced since then, EPA would have a mere 90 days to review before they are introduced to the market. Little, if any, pre-market safety testing is required.

Why should it be so difficult to challenge the safety of thousands of chemicals?

Often, incriminating data about them is classified as proprietary or trade secret. That is the epic tragedy of TSCA. To date, EPA has reviewed fewer than two percent of all chemicals introduced since 1976. It has banned only nine using TSCA.

In the 1970s my friends and I fished the frothy green swells of Santa Monica Bay almost every week. We feasted on bonito (dark cuts removed), barracuda, calico bass, sheephead, rock cod, and halibut. We didn’t know our catch was poisoned with dichlorodiphenyltrichloroethane (DDT), a pesticide that was banned for use in the US but which continued to be manufactured for export at a plant on Normandie Avenue in Los Angeles.

WHY WEREN’T WE TOLD?

As an investigative reporter, a decade later, I conducted the first-ever study on the blood levels of DDT and polychlorinated biphenyls (PCBs), chemicals used as heat shields for industrial transformers, in the blood of fisher men and women eating seafood from the Santa Monica Bay. The study, which showed extremely high levels among the local-seafood consumers, was published in LA Weekly and in the peer-reviewed scientific literature in Environmental Toxicology and Chemistry.

I measured my own blood levels. They were high enough to jolt me into the realization that I had been exposed to harmful toxins. I felt sick remembering all the local fish I’d eaten and shared with my family and friends.

Someone should have told me my catch was contaminated, right? But there was no law making anyone declare this information to the public.

Nearly a decade later, as I began my study for LA Weekly, I learned, for the first time, some 2,000 metric tons of DDT-contaminated waste sludge were dumped where we fished. Much of it was barged in barrels and cast overboard into the ocean. The barrels were hacked open to make sure they sank and, once reaching the bottom of the continental shelf, their contents spread into the entire ecosystem. More DDT and PCBs were allowed to be disposed of through the miles-long enormous sewage pipe that extended deep into the ocean and shot chemical cannon balls with their toxic plumes into the sea.

Neither the DDT nor PCBs broke down for decades. Instead, both moved upward from the plankton into the minnows that ate them, then the larger fishes that ate the minnows, and eventually into the brains and tissues of the highest-level predators, among which were the gulls, eagles, falcons, and kids, like me and my friends, who ate the fishes. But the eagles’ eggshells were thinning, the gulls were unable to reproduce, and the peregrine falcons were disappearing.

Given these changes that scientists were observing, I was also bound to live with the knowledge that a ticking chemical time bomb might go off in my body at any moment. The effects are not limited to cancer either. They increase my risk for Parkinson’s disease and can cross multiple generations to cause birth defects or reproductive abnormalities.

RECLAIMING OUR HUMAN RIGHTS

So how are we activists going to take back our rights over chemical toxins? Well, it won’t come from the inside game. We’re going to have to do this without much help, and despite interference, from Washington. Especially with the Donald Trump administration, the situation has become dire. The New York Times has documented some 85 instances of regulatory rollbacks since he became president.

As with our sisters and brothers in the gun-control movement, however, we can get a lot done with the states, especially the fourteen that have sovereign powers and Democrat-controlled legislatures and governors, including California, New York, Illinois, and Washington.

One of the best templates for a smart environmental law is California’s Safe Drinking Water and Toxic Enforcement Act of 1986. Also known as Proposition 65, the law was written by citizens, not by legislators, and passed by almost two-thirds of the vote. It is, by all measures, the nation’s most empowering, democratizing consumer and environmental law.

At the time of Proposition 65’s inception, the times were not unlike today.

We had the Ronald Reagan-inspired “sagebrush rebellion” with budget cuts, agencies rolling back regulations, and an uprising in the Western states to exploit timber, mineral, and grasslands. The states were even more stymied than now in their ability to protect us.

At the time I was doing my reporting, Barry Groveman, then head of the Los Angeles County District Attorney’s Environmental Crimes and OSHA Division that included a toxic waste strike force, became one of my sources. Groveman’s aggressive special unit was unique, perhaps too distinct. They built cases. They gathered their own evidence. They did their own tests. He told me, with real disappointment, when it came to environmental laws, most other prosecutors simply didn’t think the issue was important enough to put in the resources necessary for enforcement.

The symptoms of toxic exposures were all around us though; rates for environmental cancers, like leukemia and non-Hodgkin’s lymphoma were steadily increasing. Kids’ cancers were increasing by nearly one percent a year, and cancer clusters were popping up throughout the state in towns like McFarland and Fowler in the Central Valley. Our own bay was still being used as a dump site.

Groveman, the originator of Proposition 65, teamed up to write the complete law with then-Assemblyman (later to become Governor) Gray Davis and environmental attorneys Carl Pope and David Roe. The law empowered us in a way that we had never been before or have since, not because of government officials so much, but because of the right-to-know and citizen-enforcement provisions.

But what makes Proposition 65’s lessons so exciting is that the five principles on which it is based can be applied successfully to our current chemical-toxin crises. No challenge that we face is more immediate or dangerous to people’s lives than the spreading plume of water contamination with poly- and perfluorinated alkyl substances (PFAS), which is a family of thousands of forever chemicals being used in water-resistant fabrics and clothing, camping gear, fire-fighting foam, cooking utensils, food packaging, and thousands of other common items in our everyday lives.

These chemicals, connected with cancer and reproductive effects at levels as low as one part per trillion, are already known to contaminate the drinking water at toxic levels for some 110-million Americans (with the number growing), according to data collected by the Environmental Working Group. The Trump administration has refused to establish safety levels or even require public disclosure or testing of public water supplies. The states are taking on the issue in the absence of federal leadership, and, as with auto-fuel stands, when enough of them adopt similar standards, they can be a force of and by themselves.

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By incorporating these five principles, distilled from California’s Proposition 65, we can write smart environmental legislation to stop current and prevent future tragedies:

1. The right to know. “The law was simple,” Groveman told me recently. “It required the right to know, allowed for citizen enforcement and, while we didn’t require pre-market safety testing, we stopped presuming chemicals were innocent. It said if you want to put a chemical in your product that puts me at risk for cancer or reproductive effects then you need to tell me and show me it is safe. If you can’t prove your chemical or product with that substance is safe, I can file a Notice of Violation and take you to court on behalf of all citizens. The penalty will be $2,500 a day per violation, which can add up.”

2. Citizen enforcement. Every state has a vast reservoir of concerned citizens who can enforce similar laws. We need citizen enforcers for our state-based environmental laws. We need the bay keeper who can write up violators; the citizen who walks past a stream and notices a strange-looking discharge that might be from the plant; or, as in our case at the CTWG, can test products for undisclosed carcinogens and reproductive toxins and have the power to take action on behalf of the people of California. In particular, citizen enforcement would identify and eliminate PFAS in thousands of products and do the work that state governments simply don’t have the resources to effectively perform.

3. Pre-market safety testing. Requiring pre-market safety testing means no longer presuming a chemical’s innocence. Quick, relatively inexpensive screening analyses can be done on chemicals to test them for mutagenic, endocrine, immunotoxic, and other adverse effects. States must begin requiring pre-market safety testing to make sure chemicals will be safe before they enter the marketplace.

4. Regulate by categories. Categories of chemicals, and not simply individual chemicals, must be regulated. That is because the way laws work now, as soon as one chemical is banned, another appears, even less well studied, and not regulated at all. This is really a game called chemical whack-a-mole. It is particularly true for the PFAS crisis and one which the chemical industry welcomes playing because they will always win against our human rights. New PFAS derivations, such as GenX, are being developed that wouldn’t be regulated, yet come with their own toxic baggage. However, when classifying by categories, any screened chemical that shows cancer-causing, reproductive, immune, endocrine, genetic, and multi-generational effects would be banned or restricted. Most important, the manufacturer or seller must then disclose the presence of harmful chemicals in their products, the same provision established by California law.

5. Let the people write the law. We, the people, wrote Proposition 65, not the special interests, with strong, clear, and comprehensive language. Twenty-two states, many in the West, allow for people’s initiatives. The beautiful thing about the people’s initiatives is that we get to write the law without compromises that are demanded by special interests and partisan politics. In the case of Proposition 65, its passage empowers us in a way we have never been before or since.

We are in the middle of a chemical attack. As a response to the worst environmental president ever, New York Governor Andrew Cuomo introduced the “Consumer Right to Know Act” in 2019, which is based on Proposition 65. Additional states are currently adopting pending legislation to combat PFAS. But fourteen states, all with legislation that parallels Proposition 65, would be a force of healthy living for Americans. Nonetheless, in all of these cases, if we incorporate these five essential principles of smart environmental legislation, we can write laws that will truly address the current, and prevent future, crises.


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