July 11, 2007 The Pump Handle 0Comment

By Liz Borkowski 

An article in the latest issue of OMB Watch’s Watcher newsletter reports on U.S. Chamber of Commerce efforts to get EPA to make changes to its chemical databases. The short story is that the Chamber asked the EPA to correct what it claimed was “inconsistent and erroneous” information about chemicals in the agency’s databases, and EPA rejected the claim, explaining that there were “valid and specific reasons” why databases might contain differing information for the same chemicals. (See the article for the complete story.)

The important thing about this story is that the Chamber made its request in the form of a Data Quality Act challenge. The DQA (officially the Information Quality Act, or IQA) has what sounds like a reasonable goal: “ensuring and maximizing the quality, objectivity, utility, and integrity of information” disseminated by federal agencies. Its history to date, however, shows it to be a tool for hindering agencies’ work to protect public health and the environment.

Sidney Shapiro, law professor at Wake Forest University and a founding member of the Center for Progressive Reform, explains the law’s genesis in an article for the Environmental Law Institute’s policy journal:

The IQA was sponsored by Representative Jo Ann Emerson (R. Missouri), but was the brainchild of Jim Tozzi. Tozzi began his public career as a senior official at OMB, departing government in 1983 to form a variety of consulting firms and trade groups, including the Center for Regulatory Effectiveness. Over the last two decades, his clients have included a broad spectrum of industries that share a combined interest in reigning in regulatory agencies, including tire and auto manufacturers, the lead industry, plastics, pharmaceuticals, pollution equipment manufacturers, and, most lucrative of all, tobacco.

Tobacco companies were apparently key in getting the DQA passed. Annamaria Baba, Daniel Cook, Thomas McGarity, and Lisa Bero searched tobacco industry document archives for items relating to the legislation and found that Jim Tozzi worked closely with Philip Morris in developing the DQA and its forerunner, the data access act. In their American Journal of Public Health article, the authors explain that Philip Morris wanted access to data from Dr. Elizabeth Fontham’s study on the secondhand smoke and lung cancer (for reasons evident in the document quoted below). When Philip Morris failed to get the data through requests and litigation, it turned to a legislative strategy. Baba et al quote from a tobacco industry document outlining the two “best case” scenarios for this strategy:

Federal legislation passes including both criteria for epidemiological studies and a requirement for data sharing. As a result, smoking ban efforts are either preempted or no longer passed. The Occupational Safety and Health Administration rule on indoor air quality no longer requires separate ventilation in order to accommodate smoking.

Federal legislation passes on data sharing only. We get the Fontham study and prove it does not show any association between ETS [environmental tobacco smoke] and disease. These results prevent Occupational Safety and Health Administration from acting and stops/repeals smoking bans.

Tobacco companies have not succeeded in turning back a tide of regulation banning smoking in public places, but other industries have eagerly adopted the DQA as a tool to fight regulation of their products. The Washington Post’s Rick Weiss reports that in the first 20 months since the act’s implementation, 39 petitions with potentially broad economic impact were filed – 32 of them by regulated industries, business or trade organizations, or their lobbyists. He cites several examples:

• The American Chemistry Council and others challenged data used by the Consumer Product Safety Commission (CPSC) as it sought to ban wood treated with heavy metals and arsenic in playground equipment.
• Logging groups challenged Forest Service calculations used to justify restrictions on timber harvests.
• Sugar interests challenged the Agriculture Department and the Food and Drug Administration over dietary recommendations to limit sugar intake.
• The Salt Institute and the U.S. Chamber of Commerce challenged data that led the National Institutes of Health to recommend that people cut back on salt.
• The Nickel Development Institute and other nickel interests challenged a government report on the hazards of that metal.
• The Association of Home Appliance Manufacturers petitioned the CPSC to retract data that ranked the risk of lint fires in various clothes dryers.

The Data Quality Act was merely one more step in a broader effort to make it harder for regulatory agencies to do their jobs. The example of the Chamber of Commerce’s petition on EPA’s chemical databases may seem innocuous since it didn’t result in any major changes in agency activities, but imagine how much time EPA staff have to devote to these and other petitions from trade groups. Agencies may also be slower to issue new regulations or publish new information knowing that DQA challenges are bound to follow. Safer water, air, and workplaces may just have to wait while agencies pursue “quality.”

Liz Borkowski works for the Project on Scientific Knowledge and Public Policy (SKAPP) at George Washington University’s School of Public Health and Health Services.

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