On November 15, 2023, the NAM filed an amicus brief asking the D.C. Circuit to review an EPA rule concerning the treatment of confidential business information reported to or obtained by EPA under the Toxic Substances Control Act. TSCA requires EPA to maintain an inventory of chemicals manufactured, imported, and processed in the United States for non-exempt commercial purposes. Accordingly, companies must report a new chemical substance or a new use of an existing substance to EPA. Companies that manufacture the substance can claim confidentiality for the submitted information when reporting to EPA.
In this case, EPA's final rule allows third-party waivers of TSCA’s confidentiality protections when a third party, such as a chemical customer or processor, reports a new use of a substance that a manufacturer claimed was confidential. This could allow downstream customers or processors of a chemical who submit information to EPA to waive manufacturers’ confidentiality claims and rights. We argue in our amicus brief that TSCA does not authorize third party waiver of a manufacturer’s confidentiality protections in the fashion contemplated by EPA in its final rule. Protecting confidential business information is important to the competitive strength of the chemical industry to bring innovative solutions and new products to market. Making confidential business information freely available to other companies will disincentivize companies from investing in product development.