What has been the effect of removing toys with phthalates from European playrooms? The shift in production practices failed to trigger the dire economic consequences the toy industry predicted during its annual negotiations with the EU. From 2002 to '04, European toy-industry sales grew by 5 percent, to nearly $20 billion annually, according to the trade group Toy Industries of Europe. Responding to the ban, European industry began developing alternatives.
A Danish company, Danisco, one of the world's largest manufacturers of food additives, introduced a phthalate alternative for toys and other products that has been approved for use in Europe and the United States. In January 2006, the European Council for Plasticisers and Intermediates participated in a conference, "Plasticisers 2006," tailored to encourage the industry to develop phthalate alternatives in response to "increasingly stringent" legislative demands and "environmental awareness among the general population." On the other side of the Atlantic, however, the US plastics industry, represented by the Vinyl Institute and the American Chemical Council, is continuing to fight legislative measures like the one proposed in California.
German chemical giant BASF shut down its European DEHP production after the EU ban in 2005. The company was formerly responsible for half the phthalate produced in Europe but "discontinued production of DEHP [in Europe] because the market has changed considerably over the last years," according to William Pagano, a BASF communications officer who responded to my questions via e-mail. Instead, BASF has a new and profitable plasticizer line called DINCH. Pagano said the company has spent "five million euros...for rigorous and extensive" safety testing of DINCH and that it has an "outstanding toxicological profile" for "sensitive applications...such as toys, food-contact materials, and medical applications." In the United States, however, the company continues to manufacture DEHP at two facilities, in Pittsburgh and Texas City, for many industrial and consumer uses on the US market. Likewise, in China, where most toy manufacturing takes place, toys are produced with phthalates for the US market but without them for the European market. Unlike in the recent scandals about lead paint in Thomas the Tank Engine toys, when Chinese companies ship phthalate-laden toys to America, they are simply abiding by US rules.
In Brussels several months before the California debate, I interviewed David Cadogan, a chemist who works as the senior scientist for the Confederation of European Chemical Industries, Europe's chemical-industry trade group. Before coming to the group, Cadogan spent two decades in the private sector, specializing in the manufacture of plastics, including many phthalates. Now, as a representative of his industry, he'd lobbied the EP against the phthalate ban. He's no fan of the precautionary principle. The EU's decision, Dr. Cadogan told me, was prompted by "politicians' desire to appear to be protecting their constituents from scientifically unproven risks." But he conceded that since the ban had taken effect, it's had little impact on European toy makers. "I suppose," he shrugged, "we've learned to live without [phthalates]."
Back in the States, Dr. Swan told me that what disturbs her most about the ongoing debate over phthalates in America is that substitutes are working. "We can switch. It's doable. Why put this into kids' bodies if we don't have to?"
Ironically, the EU's decision on phthalates was largely based on evidence generated by US scientists, much of it funded by their government. Dr. Gray, for example, works for the EPA. The EPA has also funded many other US scientists' research on phthalates, including that of Dr. Swan at the University of Rochester. The work of Swan, Gray and several other scientists at public research institutions across the country contributed to the EU's risk assessments of phthalates. Gray's and Swan's findings, along with those of European scientists, were an important part of the evidence used to support the EU's decision to limit infants' phthalate exposure.
The same data, however, have had an entirely different reception in the United States. The California hearing was the first of its kind in the country. Dr. Gray and Dr. Swan told me they had never presented their findings on phthalates to any US legislative body, on either the federal or state level. "Nobody's ever asked," said Dr. Swan.
Jurisdiction over phthalates in the United States is scattered: the EPA has responsibility for phthalates released into the environment; the FDA, for medical devices like IV tubes; the National Institutes of Occupational Safety and Health, for workplace exposure (there appear to be higher pancreatic cancer rates among phthalate workers). In each, US policy-makers are confronted with a powerful industry lobby that has largely succeeded in shaping a regulatory culture that imposes an obstacle course of cost-benefit analyses before acting.
"If you're a US regulator, it's hard to resist the culture of analysis paralysis," says Joel Tickner, a toxicologist at the Lowell Center for Sustainable Production at UMass. "The more we think we don't know, the less the imperative to act."