Imagine for a moment that you’rethe chief executive of a company that manufactures chemicals used in plastics that become consumer products, especially plastic picnic ware. The head of your product development lab reports that she has just gotten some troubling results regarding one of your biggest sellers—a chemical agent that makes it possible for plastic utensils to maintains their decorator colors. The study shows that this agent causes severe neurological damage in rats. The Toxic Substances Control Act, commonly referred to as T(O)SCA, requires you to turn all “health and safety” studies over to the Environmental Protection Agency (EPA). You tell her to do so, but order that the name of the suspect substance be replaced with a so-called “generic chemical name” that makes it impossible for anyone to understand the implications of the study. You further instruct that your company name be redacted from the information transmitted to EPA. The result is a report that neither allows the public to understand the implications of the study nor to monitor how the government and the company curb either its marketing or its use.
Any college sophomore biology student knows that scientific advances depend on the free and open sharing of information so that experiments can be replicated and hypotheses disproved. So it was that over the last several days a small group of researchers gathered in Geneva under the auspices of the World Health Organization to wring their hands about whether to make public groundbreaking research on a particularly virulent strain of the lethal bird flu. The upshot? The research will be published, despite the risk that it could be used by terrorists. The group decided that the importance of scientific openness regarding this crucial public health threat outweighed the superficially appealing notion of embracing secrecy that would chill further discoveries.
On behalf of its many members, including an unknown number who find themselves in distasteful circumstances comparable to my opening hypothetical, the American Chemistry Council (ACC) asserts that the “confidential business information” in an adverse health and safety study must be kept secret in order to safeguard their members’ competitiveness. The identity of the chemical—and even the name of the company that manufactures it—is a “trade secret” that carries with it a property right, ACC argues. Dollars outweigh any romantic notion that the public has a need—much less a right—to know. Of course, information on the bird flu could also prove lucrative to pharmaceutical companies. Once scientific information is dubbed a trade secret, the profit motive—or, in its gilded form, corporate competitiveness—transcends everything else, especially the public interest in not just knowing but tracking further developments.
In May 2010, EPA announced that it was going to crack down on “confidential business information” claims regarding chemicals that are the subject of adverse health and safety studies. It explained:
Part of the Agency’s mission is to promote public understanding of potential risks by providing understandable, accessible, and complete information on potential chemical risks to the broadest audience possible. In support of this mission, EPA posts useful information about chemical substances regulated under TSCA for the public on its website (http://www.epa.gov/oppt/index.htm). One important source of this information is health and safety studies submitted to the Agency. The TSCA section 14(b) exclusion from confidential protection for information from health and safety studies indicates the importance attributed by Congress to making such information available to the public. Chemical identities in particular constitute basic information that helps the public to place risk information in context. Making public chemical identities in health and safety studies whose confidentiality is precluded by TSCA will support the Agency’s mission.
As usual, the ACC has traveled the well-worn path to the door of the White House Office of Information and Regulatory Affairs (OIRA), demanding last month that it squash the EPA’s efforts. Never inclined to make a modest argument when an overwrought one can be crafted, its “white paper” on the subject notes that EPA’s disclosure policy deprives “trade secret chemical identities” of protection as the “most valuable intellectual property” a company possesses. This result “may have the effect of discouraging innovation and the jobs and greener chemicals that result from innovation, driving jobs outside the U.S.,” reminding us once again that “it’s the jobs, stupid,” no matter how attenuated the claims regarding such outcomes may be. And in fact, ACC’s lengthy, glutinous paper does not offer any evidence of this assertion, but instead takes the reader on a long and discouraging journey through the legislative history of TSCA, now four decades old.
EPA should stand by its policy of refusing CBI claims on most chemical identities in TSCA health and safety studies. Whether OIRA will stifle EPA remains to be seen. I hope that as they consider ACC’s shrieks of dismay, however, OIRA staff will keep in mind an outcome that is considerably more likely than the mass migration of American jobs. Secrecy breeds distrust in virtually every aspect of public affairs. When the reason for obscuring the source of a tangible danger is money for the few and not the many, this dynamic is intensified. Of course, few people are paying attention to the particular melodrama I describe here. But should it come to light, the government, and not just a self-interested industry, will be further diminished.