Chemicals as Regulatory Objects

• Published date: 01 July 2014
• DOI: http://doi.org/10.1111/reel.12081
• Author: Elizabeth Fisher
• Date: 01 July 2014

Chemicals as Regulatory Objects

Elizabeth Fisher

This reflective article explores how different regula-

tory regimes concerned with the industrial use of

chemicals conceptualize chemicals as regulatory

objects in different ways. The United States Toxic Sub-

stances Control Act characterizes chemicals as risky

objects, the European Union’s REACH regime charac-

terizes chemicals as market objects and the Califor-

nian Green Chemistry Initiative characterizes

chemicals as scientific objects. The malleability of

chemicals as regulatory objects has implications for

debates about international chemicals regulation,

including the need for a more nuanced debate and

greater regulatory imagination.

INTRODUCTION

What is the object being regulated in chemicals regula-

tion? Such a question seems to verge on the idiotic. A

‘chemical’ is ‘a distinct substance or compound’1and

thus appears a very obvious object to regulate. In this

exploratory article I argue that the identity of chemicals

as regulatory objects is malleable. By ‘regulatory object’

I mean a thing that is understood by regulatory actors

as the ‘thing’ to be regulated. For something to be a

regulatory object it must be capable of being under-

stood as a material item that can be governed.

The malleability of chemicals as regulatory objects

occurs because understandings of chemicals are

co-produced alongside the legal structures for regulat-

ing them.2I explore three examples of this process of

co-production: the United States (US) Toxic Substances

Control Act 1976 that characterizes chemicals as risky

objects; the European Union REACH (Registration,

Evaluation, Authorization and Restriction of Chemi-

cals) regime that characterizes chemicals as market

objects; and the Californian Green Chemistry Initiative

that characterizes chemicals as scientific objects. I

argue that there is a need for lawyers and scholars to

develop deeper understandings of the role that law

and regulatory strategy play not only in regulating

behaviour but also in framing understandings of what is

being regulated. This is particularly significant for how

scholars, policy makers and lawyers envisage the future

development of international regimes for chemicals

regulation.

Three caveats should be made before starting. First,

there is a deep theoretical literature about co-production

and associated ideas, but I only refer to these in passing.3

I do that because the purpose of this article is not to

explore that literature, but to get lawyers and legal schol-

ars to think critically about what it is we regulate when

we regulate chemicals. What is striking in this regard is

that while ideas of co-production4and actor network

theory5may seem alien to mainstream lawyers, the idea

that law frames understandings of the world is definitely

not, and much of legal education is focused on educating

lawyers about the different ways that legislation, case

law and legal institutions shape our understanding of

the world.6Second, much could be said about the three

regimes that I discuss here, but my analysis is very much

focused on a single question – what is understood as the

‘regulatory object’ that each regime regulates? This

article should thus not be read as a definitive account of

these regimes. Third, this article is a thought piece and

so also does not attempt to be the last word on the idea of

chemicals as ‘regulatory objects’. My purpose is to get

lawyers and legal scholars thinking, and that means my

analysis raises many questions and provides few

answers. But raising questions and starting discussion is

exactly what this article is about.

THINKING ABOUT CHEMICALS

REGULATION . . .

A decade ago, chemicals regulation seemed to me to be

the rather dry and pedestrian part of environmental

law. While other issues such as nature conservation or

1Oxford English Dictionary.

2S. Jasanoff, ‘The Idiom of Co-production’, in: S. Jasanoff (ed.),

States of Knowledge: The Co-Production of Science and Social Order

(Routledge, 2006), 1.

3Besides the pieces cited below, see also: A. Barry, ‘Technological

Zones’, 9:2 European Journal of Social Theory (2006), 239; S.

Jasanoff, ‘A New Climate For Society’, 27:2–3 Theory, Culture and

Society (2010), 233; and B. Latour, ‘From Realpolitik to Dingpolitik or

How to Make Things Public’, in: B. Latour and P. Weibel (eds.),

Making Things Public: Atmospheres of Democracy (MIT Press,

2005), 14.

4See S. Jasanoff, n. 2 above.

5B. Latour, Reassembling the Social: An Introduction to Actor-

Network Theory (Oxford University Press, 2007).

6For example, this is the typical issue explored in discussions about

statutory interpretation. See J. Adams and R. Brownsword, Under-

standing Law,4

th edn (Sweet and Maxwell, 2006), at Chapter 4.

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Review of European Community & International Environmental Law

RECIEL 23 (2) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12081

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