Setting the record straight on TTIP? Yes, let’s.

By Baskut Tuncak and Vito Buonsante

Two weeks ago, at the start of the fourth round of “trade” negotiations between the EU and the US (officially the Transatlantic Trade and Investment Partnership Agreement, or TTIP), the Center for International Environmental Law and ClientEarth issued a detailed critique of a document submitted to TTIP negotiators by the two main chemical industry lobbies, the American Chemistry Council (ACC) and the European Chemical Industry Council (Cefic). The industry document contained specific proposals and wording for chemicals regulation under TTIP.

The document, which as of this writing remains publicly available only on CIEL’s and ClientEarth’s websites, was leaked after the third round of negotiations in December 2013. Last week, Greg Skelton from ACC published a response to our analysis titled “Setting the record straight on TTIP.” We take this response as strong evidence that our critique has been heard, even if not yet accepted, and we welcome the opportunity to continue a frank and open discussion regarding our analysis, and the arguments they have offered in defense of the document and the process by which it was submitted and considered.

CEFIC and ACC begin their response to our analysis by claiming that their proposals and positions have always been available on their website. The facts suggest otherwise.

ACC and Cefic posted their joint proposal in October of 2012, before new bills to reform US law were introduced, and ACC published a further position paper in May 2013. We maintain that that these documents and the one leaked in December 2013 are not the same. Those public statements, for example, did not include:

  • Draft legal text for discussion by negotiators (and convenient verbatim adoption);
  • Mutual recognition of notifications (under US TSCA) and registration (under EU REACH) – which would undermine the “no-data, no-market” principle of REACH;
  • Procedural (bureaucratic) mechanisms, such as the establishment of a “Chemical Sector Joint Cooperation Committee and a “Transatlantic Scientific Advisory Committee (TSAC)” for required consultation on emerging issues or areas of concern prior to the enactment of any regulations; or
  • Reliance on a yet to be concluded UN Harmonized List of Classifications.

These examples reflect industry’s continuing refinement of explicit mechanisms to support their long term objectives. These are the significant procedural concerns and substantive ideas that we criticize in our paper, which are not found in earlier position papers by ACC or Cefic.

In addition, ACC insists that they “have been very clear all along that we are not proposing any changes to current regulations under TTIP.” This is disingenuous because, while the TTIP proposals would not change the regulation itself, they would severely affect the implementation of existing EU and US legislation. Implementation is, after all, the key for any legislation, whether it is at the state, national or international level. EU REACH is many years away from being fully implemented. The final data call for information under REACH is not until 2018, and nearly 70% of previously submitted dossiers examined by ECHA (only about 5 % of the total number) are not in compliance. It could be said that US TSCA has never been implemented as intended for over 60,000 existing industrial chemicals over the past 38 years.

ACC asks whether “CIEL and ClientEarth have a fundamental objection to taxpayers’ money being used more efficiently in meeting legitimate regulatory objectives?” This is precisely our concern, i.e. the waste of taxpayers’ money with unnecessary regulatory steps. CIEL and ClientEarth fight to get toxic chemicals out of the market so that taxpayers’ money is used more efficiently and isn’t used to pay for remediation and spiraling healthcare costs from diseases associated with toxic chemicals (WHO 2008; UNEP 2012; Trasande & Liu 2011). Hundreds of chemicals are linked to cancer, polluting our homes, water, soil and air. And, there are close to 800 chemicals that are known, or suspected, to be capable of interfering with the normal function of our hormone systems which are crucial in laying the foundation for a healthy adult life. ACC and Cefic’s proposals for TTIP could stall efforts to reduce the use of these carcinogens and hormone (or endocrine) disrupting chemicals.

In 2012, the United States, European Union, over a hundred other countries—and industry—recognized hormone disrupting chemicals as being a global threat due to clear linkages with increased rates of a myriad of diseases which cannot be explained by genetics or lifestyle choices alone . However, ACC and Cefic have used every opportunity to dispute the scientific findings of a WHO and UNEP report by independent expert scientists, rather than accepting the consensus and transforming accepted science into protective laws and policies.

That is why we cannot accept ACC’s assertion that their “proposals for [..]enhanced cooperation on the identification and assessment of priority chemicals is designed to speed up, not slow down the pace of chemical assessments” . The proposals by ACC reflect how the chemical industry, including ACC, has played the delay game on chemicals assessment. Any belief that the genuine objective of ACC is to speed up the assessment of chemicals, must contend with the NRDC report on the tortured process of assessing the risks of formaldehyde, styrene and trichloroethylene (TCE), all of which took over 20 years, due to the use of inevitable scientific uncertainty to delay protective laws and policies.

Only a deep structural reform of US chemicals legislation could be the basis of regulatory cooperation between both sides of the Atlantic. Anything less is a stalling tactic. When TSCA was approved in 1976, the US pioneered the most modern piece of legislation on chemicals at the time, but which had fatal flaws that have left its intentions unrealized. Over the past several decades, the pendulum has swung across the Atlantic. Several reforms of EU chemical laws and no similar reforms of US laws have left 1970s era US chemical standards far below the standards of the EU, which is the root cause of the alleged “trade barriers.” Policymakers are already using “trade” as an argument to oppose further development of EU laws. Despite these calls by ACC and Cefic for closer regulatory cooperation between the EU and US, the bills championed by ACC in the US Congress bear no resemblance to EU policies.

The longstanding and deep opposition that US diplomats have shown for pragmatic chemical policies by the EU has not been secret. An alliance of US Government officials and the chemical industry lobbied against these EU policies from 2002 until 2013, and continues today with debate over TTIP. And ACC, Cefic, and the EU negotiators are certainly not happy with the approximately 30 US states proposing stronger rules for toxic chemicals on an annual basis.

ACC claims they “have the same level of access to government negotiators as any other stakeholder.” The US Trade Advisory system is not balanced. ACC and other industry groups compose 85% of the members of the US Trade Advisory System (check out this great infographic of the imbalance). For over a decade CIEL fought USTR, unsuccessfully, to gain access to a one page document concerning trade negotiations that have long since been abandoned.

ACC and Cefic allege that this draft language for TTIP was developed following a request by the negotiators, which raises the question: In whose interests are US and EU governments negotiating? ACC and Cefic must have had prior knowledge of the EU position paper on Regulatory Cooperation, which was only disclosed to the public just before the December negotiating round by the NGO, Corporate Europe Observatory (CEO), in order to develop their draft language. The public never had access to this document before it was leaked.

If this isn’t privileged access, what is?

Originally posted on March 26, 2014.