Continued Pressure to Confiscate and Redistribute Private Property in the Chemical Field

    The Fifth Amendment to the Constitution is part of the Bill Of rights, and is therefore considered part of the Constitution. It says in part, "[No person] shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
    Therefore, it is government's responsibility to protect the private rights of individuals from confiscation either by itself or by others.
    I started this essay with the above quote from the Constitution, because of its applicability to an article by Cheryl Hogue entitled, "Protecting Trade Secrets", in the March 19 Issue of Chemical and Engineering News. Before we proceed, we also need to understand that a company or corporation is legally regarded as an individual or person.
    Cheryl's article refers to the procedure by which the EPA gives approval to an individual or company for the manufacture or use of a new chemical substance and processes by which it is manufactured. This comes about through the Toxic Substances Control Act (TSCA), from which the EPA has administration responsibility. When a company now desires to manufacture a new product, it submits an application to the EPA. At its discretion, the EPA may immediately give approval or request certain data, usually with respect to health and safety. When the EPA gives its approval, it places a substance on its TSCA Inventory list. That means the substance has been approved for manufacturing/use, but it does not indicate what the substance is, who will manufacture/use it, or what data has been presented. The reason for the secrecy is that the company requesting listing has spent considerable time and capital in developing the product for commercial use, and in some cases a large expanse for determining health/safety. Congress recognized the right of private property, when it activated TSCA, and included a limitation that the EPA must not publicly reveal and and must hold confidential information which the submitting company considers trade secrets.
    The justification for trade secrets confidentiality is the basic right of private property. The submitting company has gone to considerable research expense in developing a new chemical substance, which it anticipates will have market value. The right of private property ownership is that it should not be made available to others, including the general public in its usual socialistic ideology. The EPA is starting to take issue with that concept.
    There are three aspects of private property ownership and the need for secrecy in this context. If a company's name is revealed, that usually is a help to competitors in determining what new product is coming to market and will help in the competitors sales strategy. The second aspect is that if the chemical substance is identified by name and structure, a potential competitor can immediately shorten his research effort to obtain modified chemical substances which likely would still be useful and yet outside patent limitations of the original inventor. The third aspect is that if the EPA makes available health and safety data to competitors, those competitors have then been given a significant time and cost advantage.
    A complicating factor is that environmental and health groups do not trust the judgment of the EPA by a blanket approval for manufacture/use of a new chemical substance, and there is likely some justification for that, which is the basis of the Freedom of Information Act.
    I propose that the confidentiality of know-how can be maintained, while simultaneously satisfying the health/safety concerns of the public and related organizations. When a company submits a request for approval to manufacture/use a new chemical substance, the EPA should assign a consecutive number to the substance and the consecutive letter to the company. Related health/safety data should then be connected only to the substance number and the company's letter number. Whereas the EPA may require health/safety data in fine detail, such as who performed the work and the dates over which the work was performed and other details connected with the technique of data generation, it should be allowed to reveal only the conclusions. For example, it might say that the substance is not explosive when mixed with air, or no noticeable affect on breathing capacity down to a limit of some indicated parts per million in air, etc.. The Manufacturer Safety Data Sheets (MSDS) is a good guide on what basic information could be revealed. If a second company desires to register a compound which might be identical to a substance already having a number on the TSCA Inventory List, EPA should not reveal that information and should require the second entry company to supply all basic health/safety data as it did for the first company. In addition, EPA should be required to notify the original registering company of the competitors application and ask whether it desires to negotiate with the second entrant on sale of the basic health/safety data.
    Cheryl's article also mentions that in addition to the EPA's apparent desire to socialize private property, a similar effort is being done globally. The Third International Conference on Chemicals Management will be held in Nairobi, Kenya in September and there will be a proposal to endorse sharing chemical information among all "stakeholders". The definition of stakeholders is not included, but I suspect that this will be another effort internationally to confiscate and redistribute private property.