A History of Regulatory Capitulation to the Chemical Industry
Mercury pollution offers us a well-lit window into the failed system
of chemical regulation in the U.S.
Mercury was discovered harming humans in Japan starting in 1953 -- 53 years
ago. Hundreds of people were affected by severe brain damage, blindness, and
horrendous birth defects -- all from eating fish heavily contaminated with mercury
dumped into Minimata Bay by the Chisso Corporation. Birds and cats were afflicted
with the same symptoms.
Ten years later, researchers in Sweden were systematically scouring the countryside,
finding dead birds with elevated mercury in their blood. This time the culprit
was seeds treated with mercury-containing fungicides. In 1966 Swedish researchers
held a conference in Stockholm to present their findings and issue warnings
-- mercury levels in the environment were rising ominously, partly because of
the use of mercury in pesticides, and partly for reasons unknown. The U.S. government
sent representatives to the Stockholm conference, but they returned home without
making a peep.
In 1969, Environment magazine told the story of mercury in Japan and Sweden
and openly speculated that mercury would be found throughout the environment
of the U.S. if anyone took the time to look for it. No one did.
Then in February, 1970, the Huckleby family in Alamogordo, New Mexico was poisoned
by a batch of mercury-treated seed that they had fed to their hogs, which provided
the family's ham and bacon. Three Huckleby children were severely injured --
one deafened, another was blinded, a third arriving at the hospital raving mad.
The story made national news and within 24 hours the U.S. Department of Agriculture
(USDA) wrapped up "10 years" of research on the dangers of mercury
and declared mercury-containing pesticides an "imminent hazard." Within
days USDA canceled the registration of mercury-containing pesticides and demanded
that the manufacturer recall the product from store shelves.
A month later. Norvald Fimreite -- a graduate student at Western Ontario University
-- revealed that fish in many lakes along the U.S.- Canada border were contaminated
with mercury at high levels (7 parts per million, for example). Ohio closed
its portion of Lake Erie to commercial fishing. On June 18, 1970 Secretary of
the Interior Walter Hickel declared mercury "an intolerable threat to the
health and safety of the American people" -- a statement so true and bold
that it remains the quintessential summary of the mercury problem 35 years later.
Later that same year, 1970, a public interest research organization in Albuquerque,
New Mexico -- Southwest Research and Information Center (SRIC) -- arranged to
take samples from the stack gases emitted from the Four Corners coal-burning
power plant and analyze them for mercury. SRIC's staff scientist, Charles Hyder,
was convinced that burning coal was the major source of mercury in the natural
environment. The Four Corners tests proved him right. The Associated Press reported
the results -- that burning coal releases enormous quantities of mercury --
but no one with any authority raised an eyebrow, much less a finger. (Disclosure:
I worked with Hyder on that project.)
Meanwhile, Norvald Fimreite's lonely work around the Great Lakes had aroused
the world. Researchers began looking for mercury in fish everywhere. Soon everyone
knew that big fish -- fresh and saltwater, both -- contain dangerous amounts
of mercury: big walleye, big swordfish, big tuna, big grouper, big pike. Obviously,
mercury was concentrating as it moved up the food chain. People began to realize
that at the top of the food web you find big bears, large birds, and humans.
Soon the U.S. Food and Drug Administration established an "interim"
standard, setting 0.5 parts per million (ppm) as the maximum allowable concentration
for mercury in fish. It seemed as if science and good sense had prevailed to
protect the public.
But then the U.S. regulatory system began to work just as it was designed to:
in 1977, the nation's swordfish distributors took the FDA to court, demanding
that FDA stop seizing swordfish that exceeded the 0.5 ppm limit. The trial lasted
four days and when it was over a federal judge had effectively doubled the nation's
allowable limit on mercury in fish, to 1.0 ppm.
Instead of building a scientific and precautionary case to protect the public,
to prevent harm, the FDA caved in to the food distribution industry. In 1979,
the FDA announced in the Federal Register that it was formally adopting 1.0
ppm as the new standard for mercury in fish, based in new data provided by the
Commerce Department, showing that Americans didn't eat as much fish as the FDA
Relaxing the acceptable level of mercury in fish, the Commerce Department said
(and the FDA repeated), would "provide a significant economic benefit to
those industries most seriously affected" by the more stringent limit and
"enhance the future development of a number of presently underutilized
fisheries." Moreover, Commerce and FDA said, a less restrictive rule "would
significantly increase consumer confidence in seafood."
As the public grew more health-conscious, the consumption of seafood steadily
rose, and the FDA turned a blind eye to questions of safety. The FDA essentially
went to sleep for 12 years until a
report from the National Academy of Sciences embarrassed it again in 1991.
At that point FDA began testing fish to see how much mercury they contained,
and the agency repeatedly promised to revisit its 1.0 ppm limit on mercury in
fish, but it never actually got around to it. That 1979 limit still holds today.
In 1997, U.S. EPA set a mercury limit in fish that was four times as strict
as the FDA's, but EPA only had the power to inform consumers of the danger of
eating mercury-contaminated fish. In 2000 the National
Academy of Sciences endorsed EPA's findings. Once again, FDA was being shamed
into reviewing its 1979 mercury limit. But again the food distributors had their
tentacles deep inside FDA. As Peter Waldman of the Wall Street Journal (WSJ)
reported August 1, 2005,
"When the FDA issued a revised mercury advisory in 2001, it urged women
of childbearing age to shun four high-mercury species: swordfish, shark, king
mackerel and tilefish from the Gulf of Mexico. It didn't mention tuna. Yet cumulatively,
according to data provided by the EPA, the four species it urged avoiding account
for less than 10% of Americans' mercury ingestion from fish, while canned tuna
accounts for about 34% of it." And FDA concluded that it should stick with
its 1979 recommendation, outlawing the sale of fish containing over 1.0 ppm
Why did the FDA not mention canned tuna? The WSJ points out, "Food companies
have long lobbied to mitigate any FDA action on canned tuna, one of the top-grossing
supermarket items in revenue per unit of shelf space."
The WSJ reported that even some EPA scientists concluded that FDA was coddling
the fishing industry: "They really consider the fish industry to be their
clients, rather than the U.S. public," says Deborah Rice, a former EPA
toxicologist who now works for the state of Maine.
But in April 2003, FDA caved in to mounting evidence of harm to children, announcing
that it would consider adopting the EPA's stricter guidelines for mercury in
fish. Later that year FDA and EPA proposed issuing a joint-agency advisory for
consumers. The WSJ reported what happened next:
"At the hearing, FDA scientists said they had put fish in three categories:
high in mercury, medium and low. The level for the low- mercury group was that
of canned light tuna, explained FDA official Clark Carrington. 'In order to
keep the market share at a reasonable level, we felt like we had to keep light
tuna in the low-mercury group,' he said, according to the meeting's official
"Later, the FDA's Dr. Acheson (director of food safety and security) reiterated
that point. He told the meeting the fish categories 'were arbitrarily chosen
to put light tuna in the low category.'...
"Says Maine's Dr. Rice: 'Here's the FDA making what are supposed to be
scientific decisions on the basis of market share. What else is there to say?,'
The joint FDA-EPA advisory was finally released and it did warn against eating
too much albacore tuna but it did not identify other high-mercury species like
yellow fin tuna, orange roughy, grouper, marlin and walleye.
In late 2005, the Chicago Tribune investigated FDA's history of work on mercury
and concluded, "The Tribune's investigation reveals a decades-long pattern
of the U.S. government knowingly allowing millions of Americans to eat seafood
with unsafe levels of mercury."
The Tribune revealed that the tuna industry often packages a high- mercury
fish (yellow fin tuna) but labels it "light tuna" which falls into
FDA's "low mercury" category (because, as we have seen, FDA created
its categories specifically to make sure "light tuna" ended up in
the "low mercury" category). So far, this yellow fin deception has
escaped the notice of the FDA.
Although FDA has the legal authority to seize fish that exceed 1.0 ppm mercury
it almost never does so because it almost never tests any fish -- especially
not imported fish, which makes up about 80% of all the fish sold in the U.S.
The Chicago Tribune tested 18 fish from each of eight Chicago supermarkets,
conducted some simple calculations using formulas provided by FDA, and concluded,
"Some samples of grouper, tuna steak and canned tuna were so high in mercury
that millions of American women would exceed the U.S. mercury exposure limit
by eating just one 6-ounce meal in a week."
The Tribune reported,
"Many experts now believe that even tuna-fish sandwiches -- a favorite
of the American diet -- can be risky for children.
"'The fact that we poisoned our air and our oceans to such an extent
that we can't eat a damn tuna sandwich is just diabolical,' said Ayelet Waldman,
a noted mystery author whose daughter was diagnosed with mercury poisoning
at age 5 after frequently eating tuna."
She was eating one tuna sandwich per week made from albacore tuna.
It turns out that mercury poisoning far more common than you might think. In
early 2004, EPA revised its estimate of the number of newborn babies with enough
mercury in their blood to cause learning disabilities, sluggishness, and other
neurological problems. Prior to 2004, EPA thought "only" 8% (1 in
12) newborns were in danger if having their brains damaged by mercury. Now EPA
believes 16% of U.S. newborns, 1 in 6, may be victims of mercury poisoning.
In real numbers, this means that 630,000 newborns each year (out of 4 million)
may be somewhat impaired even before they start the long journey of life.
Furthermore, a small study by Ellen Silbergeld at Johns Hopkins University
seems to indicate that adults can be harmed by mercury as readily as children
can. "Adults may be just as sensitive to mercury as children," says
Silbergeld, who studied neurological function in 52 men and 77 women living
in fishing villages downstream of gold mines in Brazil.
In the U.S. mercury contamination is widespread, just as Environment magazine
predicted in 1969. In 2002, at least 43 states issued mercury warnings for fish
covering 12 million acres of lakes and 400,000 miles of rivers.
You might think that keeping mercury out of the natural environment, to the
extent possible, would be a top public health priority of U.S. chemical regulators,
but you would be mistaken.
Everyone now agrees with Charles Hyder that the biggest single human- created
source of mercury in the natural environment is coal-burning power plants, which
emit 48 tons of mercury each year in the U.S. This is a technical problem --
the mercury can be removed from the coal before burning, or it can be captured
before it escapes up the smoke stack. But of course the coal industry -- famous
for claiming it is now the "clean coal" industry -- resists every
effort to try to clean up its mercury emissions. The issue? Just money.
Early in 2005, two researchers calculated that the average reduced IQs of U.S.
babies caused by mercury in their mothers could be translated into dollars of
lost earnings over their lifetimes: $8.7 billion per year is the price tag on
diminished IQs, they concluded.
When EPA considered issuing new rules to force coal-burning power plants to
reduce their mercury emissions, EPA hid the results of a study they had commissioned
by Harvard University researchers. The Harvard study had concluded that reducing
mercury emissions carried a huge public health benefit and therefore EPA would
be justified in clamping down hard on the coal-burners. By hiding this study
from the public, EPA tried to claim that the health benefits would be minimal
and therefore the power industry shouldn't be required to spend large sums.
When asked about all this by the Washington Post in early 2005, EPA officials
simply lied, saying the Harvard study had arrived late and was flawed. Neither
claim was true and EPA officials knew it at the time they said it.
EPA had said the cost to the coal-burners would be $750 million per year, but
the health benefit would be only $5 million per year, so cleaning up mercury
emissions from coal plants wouldn't be worth it. The Harvard crew calculated
that the health benefit would be $5 billion each year -- making it well worth
everyone's while to clamp down on mercury emissions from coal.
Without apology, EPA and FDA continue to waffle, fudge and fake it -- doing
their best to protect the coal industry at the expense of the nation's children
and the nation's future. That's chemical regulation, U.S. style.
Peter Montague is editor of the indispensable Rachel's
Health and Democracy, where this essay originally appeared. He can be
reached at: email@example.com