Politicians are not the only people who too often seem to believe that tough regulations can solve all of our environmental challenges. It is often environmental organizations, consumer groups, and the media which stir up public pressure for more and more stringent regulations when these may not be what we need. That is not to say that we do not need more regulations but we certainly do not need regulations that increase the cost of food and consumer products without substantially resolving the underlying problems. Examples of these costly but partially or totally ineffective regulations are particularly common in the field of toxic substances, for example Per- and polyfluoroalkylated substances (PFAS), phthalates, bisphenol A (BPA), and Polychlorinated Biphenyls (PCBs).
There are many reasons that regulation of persistent bio-accumulative toxic substances (PBTS) is frequently at least partially ineffective.
The science is often complex. For example, at least 4,700 types of PFAS are believed to exist with at least another three to four thousand forms being chemically possible but not yet found. Each of these four to nine thousand forms is different from all of the rest, potentially with different properties and different health and environmental effects. The environmental and health effects of only a few of the substances are close to well understood.
Scientific research on human and environmental toxicity is time consuming and expensive. Governments are increasingly reluctant to put up the large amount of funds necessary to conduct the extensive research to find out which PBTS are truly toxic. Without a clear finding of toxicity, legislators have found it difficult to ban chemicals which are useful and which may or may not be toxic.
In many cases it was government agencies which initially approved use of these chemicals. It is a major job, both politically and technically, for a government agency to rescind an approval for use of a chemical which they approved in the first place. Although governments claim, usually correctly, that they have the power to rescind approvals based on new information, experience suggests that the “egg on the face” syndrome is a barrier to recision and certainly there are situations where more evidence seems to have been required to rescind an approval than to grant an approval.
With cutbacks in the public service in many governments many scientists have migrated from the public service to private industry and academia. Senior public officials, such as deputy and assistant deputy ministers, and sometimes even program managers, often have little or no training in chemistry, biochemistry, or toxicology of synthetic substances. The result is regulations which may be all to easy for industry to challenge in the legal system, particularly in the United States.
Finally, regulations banning the use of PBTS are only as good as the enforcement regime. In Canada environmental enforcement has never been strong. Today the chances of a manufacturer being found to be using a banned toxic substance is quite low. Enforcement is made even more difficult by the lack of an international agreement banning use of toxic substances. For example, use of PFAS is not banned in many countries. It is beyond practical for Canadian food and customs inspectors to test all products and packaging being imported in Canada for the presence of PFAS. Unless someone in the manufacturing country blows a whistle, something which is a remote possibility, the chances of an importer being caught importing a product in which PFAS has been used is very slight.
The PFAS example is illustrative. Reflecting public opinion, some major brand owners are seeking to ensure that their packaging and products are “PFAS free.” Unfortunately such an objective is impossible. PFAS has become ubiquitous in the global environment. PFAS will be found, at low levels, in biomaterials, both plant and animal, and terrestrial materials such as water and soils, from north to south and all around the world. While removal of PFAS from water and soil may be possible, though very expensive, the best that can be done by manufacturers and brand owners of food and packaging materials, is “no intentionally added PFAS.” This is not what many consumers and environmentalists want. They want zero PFAS.
This analysis may sound depressing but it is not as though nothing can be done. Among the steps which governments might take to address the above barriers to “environmentally cleaner products and packaging” are the following:
- Increase funding to, and transparency of, toxicological research on substances of environmental and health concern. We spend tens of millions of dollars each year on cancer research, for example, but precious little on research as to which toxic substances contribute to cancer.
- Apply the Precautionary Principle more widely. Consider new substances, and many less than new substances as well as unintentional contaminants, to be potentially harmful to health and the environment rather than regarding them as potentially safe until they are proven to be harmful.
- Increase the level of qualification of the scientific public service. This can be accomplished by engaging the best scientists with the most relevant qualifications on short to medium term government contracts to develop solutions to the PBTS problem. In many European countries the government policy and regulatory processes frequently involve the top scientists from national universities. In Canada we rarely engage university scientists in environmental policy development.
- Bring together technical multi-stakeholder roundtables to develop solutions. The multi-stakeholder round table approach was common in environmental fields in the 1980s and 1990s but seems to have fallen out of favour, possibly because some companies and industry groups put up participants who had little or no commitment to solving the problem. The process has proven to be effective at solving some environmental problems and should be resuscitated.
If all else fails Canada could follow the American model in which the decisions of product safety and environmental class action suits, or even just the possibility of such class action suits, seem to be scaring the daylights out of many companies. Some Canadians may claim, correctly, that such is not the Canadian way but if it is class action or toxic chemicals in our food I suspect that the decision of the Canadian public will be clear.
Colin Isaacs is a chemist with practical experience in administration, municipal council, the Ontario Legislature, a major environmental group, and, for the past three decades, as an adviser to business and government. He is one of the pioneers in promoting the concept of sustainable development for business in Canada and has written extensively on the topic in the popular press and for environment and business platforms.
Featured image credit: George Clerk for Getty Images.