Europe's Rules Forcing U.S. Firms to Clean Up
Unwilling to surrender sales, companies struggle
to meet the EU's tough stand on toxics.
By Marla Cone
Times Staff Writer
May 16, 2005
At their headquarters in Santa Clara, researchers at
Coherent Inc., the world's largest laser
manufacturer, are wrestling with an environmental
law that is transforming their entire product line.
Soon, everything produced at the Bay Area company
even the tiniest microchip inside its high-powered
lasers that fly on NASA satellites and bleach jeans
sold at boutiques must be free of lead, mercury
and four other hazardous substances.
The mandate that has Coherent and other American
electronics companies scrambling doesn't come from
lawmakers in Washington, or even Sacramento.
Instead, it was crafted 5,000 miles away, in
Brussels, the capital of the European Union.
Europe's law, governing any product with a battery
or a cord, has spawned a multibillion-dollar effort
by the electronics industry to wean itself from
"This is the first time we've encountered something
like this on such a global scale," said Gerry
Barker, a vice president of Coherent, whose lasers
are used to create master copies of Hollywood films,
test the safety of car tires, imprint expiration
dates on soda cans and more.
And the electronics rule is only the beginning.
Already, Europe is setting environmental standards
for international commerce, forcing changes in how
industries around the world make plastic,
electronics, toys, cosmetics and furniture. Now, the
EU is on the verge of going further overhauling
how all toxic compounds are regulated. A proposal
about to be debated by Europe's Parliament would
require testing thousands of chemicals, cost
industries several billion dollars, and could lead
to many more compounds and products being pulled off
Years ago, when rivers oozed poisons, eagle chicks
were dying from DDT in their eggs and aerosol sprays
were eating a hole in the Earth's ozone layer, the
United States was the world's trailblazer when it
came to regulating toxic substances. Regardless of
whether Republicans or Democrats controlled the
White House, the United States was the acknowledged
global pioneer of tough new laws that aimed to
safeguard the public from chemicals considered
Today, the United States is no longer the vanguard.
Instead, the planet's most stringent chemical
policies, with far-reaching impacts on global trade,
are often born in Stockholm and codified in
"In the environment, generally, we were the ones who
were always out in front," said Kal Raustiala, a
professor of international law at UCLA. "Now we have
tended to back off while the Europeans have become
more aggressive regulators."
Europe has imposed many pioneering and aggressive
some say foolish and extreme bans meant to protect
people from exposure to hundreds of industrial
compounds that have been linked to cancer,
reproductive harm and other health effects. Recent
measures adopted by the European Union have taken
aim at chemicals called phthalates, which make nail
polishes chip-resistant, and compounds added to foam
cushions that slow the spread of fires in furniture.
EU's Big Market
Many companies, even those based in America, follow
the European rules because the EU, with 25 countries
and 460 million people, surpasses even the United
States as a market. Rather than lose access to it,
many companies redesign their products to meet
European standards. For example, Revlon, L'Oreal and
Estee Lauder have said that all their products meet
European directives that control the ingredients of
cosmetics. And U.S. computer companies say they are
trying to remove lead and other substances banned in
the EU from everything they sell.
As the EU emerges as the world's toughest
environmental cop, its policies increasingly are at
odds with Washington.
Among the compounds now phased out or restricted in
Europe but still used in high volumes in the United
States are the pesticides atrazine, lindane and
methyl bromide; some phthalates, found in beauty
products, plastic toys and other products; and
nonylphenol in detergents and plastic packaging. In
animal tests, those compounds have altered hormones,
caused cancer, triggered neurological changes in
fetuses or damaged a newborn's reproductive
The "biggest single difference" between EU and U.S.
policy is in the regulation of cosmetics, said
Alastair Iles, a postdoctoral fellow at UC
Berkeley's Energy and Resources Group. Cosmetics
sold in Europe cannot contain about 600 substances
that are allowed in U.S. products, including, as of
last September, any compound linked to cancer,
genetic mutations and reproductive effects.
Driving EU policy is a "better safe than sorry"
philosophy called the precautionary principle.
Following that guideline, which is codified into EU
law, European regulators have taken action against
chemicals even when their dangers remain largely
Across the Atlantic, by contrast, U.S. regulators
are reluctant to move against a product already in
use unless a clear danger can be shown. A chemical,
they say, is innocent until proven guilty.
Critics say the U.S. Environmental Protection
Agency's search for scientific clarity takes so long
that the public often goes unprotected. Paralysis by
analysis, the critics call it.
U.S. risk assessments can last years, sometimes
longer than a decade, and in some cases, the EPA
still reaches no conclusions and relies upon
industries to act voluntarily. For instance, despite
research that showed by 2002 that polybrominated
flame retardants were doubling in concentration in
Americans' breast milk every few years, the EPA has
still not completed its risk review. Meanwhile, the
U.S. manufacturer of two of the flame retardants
agreed voluntarily to stop making them last year
after they were banned in Europe and in California.
In the 1970s and '80s, all the major chemical and
pollution laws in the United States had a
precautionary slant, said Frank Ackerman, an
economist at Tufts University's Global Development
and Environment Institute.
Lengthy reviews of chemicals, which now dominate
U.S. policy, began to evolve under President Reagan
and grew in the 1990s. Carl Cranor, an environmental
philosophy professor at UC Riverside, said that a
conservative groundswell in American politics and a
backlash by industries set off "an ideological sea
Part of the change stems from the much more vocal
role of U.S. companies in battling chemical
regulations, said Sheila Jasanoff, a professor of
science and technology studies at Harvard
University's John F. Kennedy School of Government.
American attitudes toward averting environmental
risks haven't changed since the 1970s, Jasanoff
said. "What has changed is politics and political
culture," she said.
EPA's Limited Role
The Toxic Substances Control Act, adopted by
Congress in 1976, grants the EPA authority to
restrict industrial chemicals that "present an
unreasonable risk of injury to health or the
environment." The law, however, also tells EPA to
use "the least burdensome" approach to do so and
compare the costs and benefits.
A pivotal year for the EPA was 1991, when a federal
appeals court nullified its ban on asbestos. The
court ruled that the agency, despite 10 years of
research, had failed to prove that asbestos posed an
unreasonable risk and had not proved that the public
would be inadequately protected by steps short of a
Since then, the EPA has not banned or restricted any
existing industrial chemical under the toxics law,
except in a few instances where manufacturers acted
voluntarily. New chemicals entering the market are
more easily regulated, and so are pesticides, under
a separate law.
Some states, including California, are filling what
they see as a void by adopting their own rules.
California and Maine banned some polybrominated
flame retardants, for example.
Iles said that restricting a chemical under federal
law now requires a "very tough burden of proof."
"Americans tend to think that products are safe
because they are in the market and must somehow have
passed government regulation," he said. "But there
is no real regulation. Cosmetics, for example, are
Since the asbestos rule was thrown out by the court,
EPA officials perform more complicated calculations
to quantify how much risk an industrial chemical
poses, assigning a numeric value, for example, to
the odds of contracting cancer or figuring out what
dose might harm a fetus or child. They also do more
research to predict the costs and the expected
benefits to public health.
But making these precise judgments is difficult with
today's industrial compounds. In most cases, the
dangers are subtle, not overtly life-threatening.
Studies of laboratory animals suggest that low doses
of dozens of chemicals can contribute to learning
problems in children, skew sex hormones, suppress
immune systems and heighten the risk of cancer. Some
chemicals build up in the bodies of humans and
wildlife, and spread globally via the air and
oceans. But while harm is well-documented in some
wild animals and lab tests, the risks to human
beings are largely unknown.
In the face of that scientific uncertainty,
Europeans say, their precautionary principle is
simply common sense. If you smell smoke, you don't
wait until your house is burning down to eliminate
the cause, they say. Their standard of evidence for
chemicals is similar to the creed of doctors: First,
do no harm.
"In the EU, if there is a risk with potentially
irreversible impact, we don't wait until the last
piece of information," said Rob Donkers, the EU's
environmental counselor in Washington, D.C.
"You can study things until you turn purple, but we
do not work from the concept that you really need to
prove a risk 100,000 times," he said. "In the face
of potentially very dangerous situations, we start
taking temporary risk management measures on the
basis of the science that is available."
Europe's policy is, in part, a reaction to a series
of disturbing revelations about dioxins in chicken,
mad cow disease, toxic substances in diapers and
baby toys, all of which have made many Europeans
more averse to taking risks with chemicals.
Under Europe's rules, "there are chemicals that are
going to be taken off the market, and there probably
should be," said Joel Tickner, an assistant
professor at the University of Massachusetts' School
of Health and the Environment.
Conservative critics and some officials in the Bush
administration criticize Europe's precautionary
approach as extreme, vague, protectionist and driven
by emotions, not science.
EPA officials would not go on the record comparing
their policies with the EU's. But they asserted that
their approach, while different, is also
Instead of banning compounds, the EPA teams with
industry to ensure there are safe alternatives. In
the last five years, 3M Corp. voluntarily eliminated
a perfluorinated chemical in Scotchgard that has
been found in human blood and animals around the
world, and Great Lakes Chemical Corp. ended
manufacture of polybrominated flame retardants used
in foam furniture. In those cases, EPA officials
said, forming partnerships with industry was quicker
than trying to impose regulations and facing court
challenges as they did with asbestos.
More than any other environmental policy in Europe,
the proposal known as REACH, or Registration,
Evaluation and Authorization of Chemicals, worries
U.S. officials and industries.
Under REACH, which was approved by the EU's
executive arm and is scheduled to go before the
European Parliament this fall, companies would have
to register basic scientific data for about 30,000
compounds. More extensive testing would be required
of 1,500 compounds that are known to cause cancer or
birth defects, to build up in bodies or to persist
in the environment, as well as several thousand
others used in large volumes. Those chemicals would
be subject to bans unless there is proof that they
can be used safely or that the benefits outweigh the
risks. The testing would cost industries $3.7
billion to $6.8 billion, the EU says.
Some company executives contend that Europe is
blocking products that pose little or no danger. In
Santa Clara, Barker of Coherent said that the EU's
precautionary approach sounds good in principle but
it forces businesses to do things that are
"unnecessary and probably very expensive."
In some cases, U.S. officials say, Europeans are
using the precautionary principle as an excuse to
create trade barriers, such as their bans on
hormones in beef and genetically modified corn and
Not on the Same Page
"There is a protectionist element to this, but
it goes beyond Europe trying to protect its own
industries or even the health of its public," said
Mike Walls, managing director at the American
Chemistry Council, which represents chemical
manufacturers, the nation's largest exporter. "It's
a drive to force everyone to conform to their
standards standards that the rest of the world
hasn't weighed in on."
John Graham, an economist and senior official of
Bush's Office of Management and Budget, which
reviews new regulations, has called the notion of a
universal precautionary principle "a mythical
concept, kind of like a unicorn."
"Reasonable people can disagree about what is
precautionary and what is dangerous," he said at a
It is ironic, says Richard Jensen, chairman of the
University of Notre Dame's economics department,
that Europeans "who embrace the precautionary
principle should have such a high tolerance for risk
from smoking and secondhand smoke."
Americans are more fearful of cigarettes, nuclear
power and car exhaust and it shows in their laws.
They also pasteurize foods to kill bacteria, while
European children grow up drinking and eating raw
milk and cheese.
Said UCLA's Raustiala, "The United States is quite
schizophrenic, as are Europeans, about when we
decide" to be cautious.