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New Turn for Asbestos Reporting Under TSCA

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A court ruling in the final days of 2020 for asbestos reporting under the Toxic Substance Control Act (TSCA) may finally steer the EPA’s review of asbestos back in the right direction.

How the incoming Biden Administration responds to these developments will impact whether asbestos is finally labeled a toxin under TSCA and the extent of new asbestos reporting requirements for continued industry use of asbestos.

Background

A 2016 bipartisan amendment to TSCA created an agency review standard that seemed likely to result in asbestos finally being identified by the EPA as a toxin.  However, the EPA under the Trump Administration created a very narrow analysis based on too little information.  Legal challenges to that approach, coupled with the COVID-19 pandemic, slowed the final scope and status of the EPA’s asbestos risk analysis. Though the EPA released the first part of its risk evaluation on December 30, 2020, a federal district court decision handed down on December 22, 2020 could force the EPA to drastically change its assessment.    

Court ruling involving asbestos reporting

The federal district court ruling involved two cases – one brought by the Asbestos Disease Awareness Organization (ADAO) and a second filed by several states attorney generals.  Judge Edward Chen, in his 36-page ruling, found that the asbestos-containing products identified by the agency during the rule making process “appear to be only the tip of the iceberg.” Chen also held that gaps in the agency’s information create risk evaluation models which don’t have the ability to “make accurate assessments that capture all ‘reasonably available’ data.”

The Court ordered the EPA to make significant changes to its TSCA Chemical Data Reporting (CDR) Rule to close several loopholes. These include considering more in-depth information about potential uses of asbestos for its risk evaluation.  Judge Chen’s order also addressed closing two additional loopholes:  ending the reporting exemption for products with “impurities” (like asbestos contaminated talc products) and requiring current processors of asbestos products to report those uses. 

What happens next?

Assuming the Biden Administration chooses not to appeal Judge Chen’s order,  the district court’s opinion will require EPA to amend its TSCA Chemical Data Reporting (CDR) Rule to require additional asbestos reporting from companies using asbestos and raw material that may be contaminated with asbestos – such as talc-based cosmetics. The data gathered through additional reporting may require the EPA to revise its conclusions or conduct yet another evaluation.  

This will impact not only the EPA’s Part 1 – risk evaluation of current asbestos uses, but Part 2 as well – risk evaluation for legacy uses of asbestos. Safer consumer products and cosmetics could also be the upshot of more stringent asbestos reporting requirements.

World Cancer Day for Awareness, Education, and Action

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Today is World Cancer Day, a multifaceted project begun in 2000 by the Union for International Cancer Control (UICC). This organization is a long-time leader in uniting people and governments in ways to reduce cancers globally. Their mission encompasses the world to provide cancer diagnoses, treatments, and care to all people – without regard to location, income, ethnicity or gender.

February 4th, 2000 was the day of its adoption at the World Summit Against Cancer for the New Millennium in Paris. Since that day, World Cancer Day is observed every February 4th as a day throughout the world for people to recommit to striving for a world without cancer.

What can be done?

• Individuals: It starts with one person, ourselves. Get regular checkups. Keep current on new developments for diagnosing and screening for cancers. Notice any signs or symptoms and have them checked. Many cancers are survivable if diagnosed early.

• Health professionals: If you are a health professional, keep abreast of innovative and up-to-date medical news about cancers. Since early detection is critical, a symptom could go unnoticed, or even misdiagnosed, if outdated knowledge led to a wrong conclusion.

• Governments: Through the ability to educate large population segments, governments can emphasize awareness, early detection, and screening. In fact, February is National Cancer Prevention Month in the US. This creates awareness throughout the country.

Because cultural beliefs can vary among countries and populations, communities have the ability to allay fears and teach good health practices.

What actions can you take for World Cancer Day?

On the World Cancer Day website is a 21 day challenge in which you can participate. It takes 21 days to create a habit, so for each of these days you’ll be sent emails with suggestions on how best to succeed at your commitment. There are five challenges from which you can choose:

• Focus on my health

• Support someone I know with cancer

• Speak up about cancer

• Get informed about cancer

• Help eliminate cervical cancer

An important point to remember, written in the World Cancer Day website:

“Whoever you are – a cancer survivor, co-worker, a carer, a friend, a leader, healthcare worker, teacher or student – you have the power to take action for a cancer free world.”

What Can You Do to Reduce Your Risk of Cancer?

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There are many ways to possibly reduce your risk of cancer. The good news is that since 1991, cancer deaths have declined 31%. That is good news, but there were still over 1,785,000 newly diagnosed cancer cases in the US in 2020. According to an American Cancer Society study, at least 42% of these – 750,000 – were potentially preventable. Today is the first day of National Cancer Prevention Month, held every February. This is a good time to assess your health and determine ways you can reduce your risk of cancer.

How can you reduce your risk of cancer?

According to the Mayo Clinic, there are seven tips that anyone can do and at the top of the list is taking charge of your own health. Review these known guidelines and see if you can make changes in your lifestyle.

  1. Limit exposure to toxins: About 90 percent of lung cancer is caused by smoking or by spending time with others who do smoke. Another source for lung cancer is through inhalation of asbestos fibers. Asbestos can also lead to mesothelioma, a deadly disease. This can be through certain occupations, products – even cosmetics – that still contain asbestos. It can also occur through renovations of homes built before 1980. If there is a chance of asbestos in any products, contact an abatement professional. There is no safe level of exposure to asbestos, but limit your exposure to any toxin.
  2. Eat a healthy diet: Fill your plate with fruits, vegetables, whole grains, and beans. Meanwhile, alcohol can increase your chances of getting liver, breast, and colorectal cancers. Eating processed meats can also increase risks of some types of cancer.
  3. Be active and watch your weight: For best results physically and reducing your risk of cancer, have at least 30 minutes of daily physical activity. More is better. Not maintaining a healthy weight can increase the possibility of breast, prostate, lung, colon and kidney cancers.
  4. Watch your time in the sun: That includes tanning beds. Use sunscreen of at least an SPF or 30 and reapply generously every two hours. Cover up with dark or bright loosely fitting fabrics when possible. These reflect more ultraviolet radiation. Between 10 a.m. and 4 p.m. the sun is strongest and most dangerous. If possible, stay in the shade.
  5. Utilize the vaccines available: Hepatitis B has a vaccination to lessen the risk of acquiring this disease that can lead to liver cancer. Ask your doctor if this vaccine is right for you. There is also a vaccine for human papillomavirus (HPV). HPV can lead to cervical and genital cancers in addition to squamous cell cancers of the head and neck. This vaccine is geared to both boys and girls aged 11 and 12. There is also a newly approved vaccine, Gardasil 9, for males and females aged 9 to 45.
  6. Stay away from risky behaviors: Don’t share needles as this can result in HIV as well as hepatitis B and hepatitis C – these can heighten the risk of liver cancer. Practice safe sex by limiting sexual partners and use condoms. With many contacts, the chance of acquiring HIV, AIDS, or HPV rises. These diseases can lead to a number of cancers.
  7. Visit your doctor: Pay attention to your body so you can quickly recognize changes. This, plus regular checkups and screenings, can catch many cancers at an early stage which leads to more positive outcomes.

National Cancer Prevention Month: An opportunity to learn and improve our health

Every February is an opportunity to revisit out successes and failures in dealing with all types of cancers. This is an exciting time of progress as researchers make new discoveries and develop new treatments. It’s also a time to think of new ways to involve people in their own healthcare solutions.

To access more information on the statistics from 2020, the American Cancer Society website is a great resource. Below is the latest news on current and future developments to reduce your risk of cancer from the Cancer Network:

  • Over the next century, successful implementation of the World Health Organization (WHO) elimination strategy could reduce cervical cancer mortality by almost 99% and save more than 62 million women’s lives.
  • A recent study determined circulating tumor cells were associated with melanoma relapse, suggesting that this form of liquid biopsy could help identify patients who would benefit from adjuvant therapy.
  • According to researchers, when individuals quit smoking it not only stops further damage from accruing, but it also may lead to the reawakening of lung cells that were not damaged by tobacco carcinogens.
  • A new AI system could possibly surpass human experts in the prediction of breast cancer, potentially leading to enhanced screening results and earlier identification of the disease. 
  • Online and digital videos were found to play a key role in cancer education, leading to increased knowledge and interventions, however access for vulnerable populations needs to be improved. 
  • Engaging in the recommended amount of leisure-time physical activity (7.5-15 MET hours/week) was found to be associated with a lower risk for 7 different cancer types.
  • Greater adherence to the World Cancer Research Fund (WCRF)/American Institute for Cancer Research (AICR) cancer prevention recommendations appeared to be associated with decreased colorectal cancer (CRC) risk for both African Americans and whites.
  • A blood-based screening test, presented at the 2020 Gastrointestinal Cancers Symposium, held from January 23-25, in San Francisco, California, could potentially diagnose multiple cancer types earlier, including gastrointestinal cancers across stages at high sensitivity.

Potential for great progress in cancer prevention

So much good news, but still a huge number of people suffering and dying from cancer. You have read of steps which could prevent, or get an early and more treatable diagnosis. Each one of us has a responsibility to do what we can to stay healthy and to encourage our family and friends. While we cannot prevent every cancer with our due diligence, much can be accomplished.

If you recognized yourself in the seven tips from Mayo Clinic, make a plan to reduce your risk of cancer by changing at least one bad habit or behavior before the 2022 National Cancer Prevention Month.

Final Rule: Independent Contractor Status under the Fair Labor Standards Act

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29 CFR Parts 780, 788, and 795

A final rule clarifying the standard for employee versus independent contractor status under the Fair Labor Standards Act (FLSA) was announced by the Department of Labor (Department) on January 6, 2021. The effective date of the final rule is March 8, 2021 and includes a multi-factor test for determining whether workers are independent contractors, meaning that the business they perform work for doesn’t have to pay minimum wage or overtime that the Fair Labor Standards Act requires for employees.

Clarifications in the final rule

  • Sets forth an “economic reality” test to determine whether an individual is in business for him or herself (independent contractor) or is economically dependent on a potential employer for work (FLSA employee.)
  • Identifies and explains two “core factors” that are most probative to the question of whether a worker is economically dependent on someone else’s business or is in business for him or herself:
    • The nature and degree of control over the work.
    • The worker’s opportunity for profit or loss based on initiative and/or investment.
  • Identifies three other factors that may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification. The factors are:
    • The amount of skill required for the work.
    • The degree of permanence of the working relationship between the worker and the potential employer.
    • Whether the work is part of an integrated unit of production.
  • Provides that the actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
  • Provides six fact-specific examples applying the factors.

The final rule was published in the Federal Register on January 7, 2021.

Will the independent contractor status Rule be permanent? 

The rule clarifying independent contractor status is scheduled to become effective on March 8, 2021. However, a spokesperson for the Biden administration called out the rule as one that the administration is likely to revise in the days before its publication, bringing into question whether it will ever be permitted to take effect. In addition, independent contractor/employee status has been the topic of a great deal of litigation in recent years, so we can expect to see challenges should the rule is permitted to take effect.

Record Decline in U.S. Cancer Death Rates

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According to a report by the American Cancer Society, data from 2017-2018 shows a record decline in U.S. cancer death rates – a drop of 2.4%. The year 2016-2017 cancer deaths dropped 2.2%. In general, the death rate has been declining since 1991 – a decline of 31% from 1991 to 2018. Death rates also decreased for prostate, colorectal and breast cancer. This is great news and positive news as we approach National Cancer Month in February. But what is the cause?

Why the decline in U.S. cancer death rates?

Since almost half of the decline is due to one form of cancer, lung cancer, we can point to a decrease in smoking over this time. While this is a large factor, there are also improvements in surgery, diagnostics, new pharmaceuticals, and more targeted radiation that have contributed to the decline. These factors, as well as immunotherapies, have helped decrease the other cancers as well. For those who suffer from lung cancer, including those who suffer from asbestos-related lung cancer, this report should be encouraging.

Dr. Deborah Schrag, chief of population sciences at Dana-Farber Cancer Institute stated, “Both men and women who are diagnosed with lung cancer are surviving longer, and that’s really fantastic news.”  While acknowledging the improvement, Dr. Schrag also commented, “We have a lot of good progress. We should celebrate that, but we shouldn’t declare victory.”

Why not declare victory?

With this steady decline in U.S. cancer death rates, why not declare victory? Cancer is still the second leading cause of death behind heart disease. Cancer led to the deaths of 599,000 Americans in 2018. It is projected there will be 609,000 cancer deaths in 2021. Obviously, there is still much research ahead. However, there are also other factors that won’t be helped by scientific research and high tech treatments. To improve statistics in the following problem areas there will need to be more education, individual awareness of lifestyle and cultural challenges, medical personnel, and state and city planning.

• Though cervical cancer is virtually preventable with medical screenings and the HPV vaccine, 2018 had 4,000 women die from this cancer.

• Black patients’ survival rates are below that of white patients’ for almost all cancers.

• There are geographic differences in death rates, including: statewide detection differences, and areas with societal activities leading to smoking or obesity.

• There’s a concern that the death decline seen in colorectal and breast cancers have slowed in the past few years and progress for prostate cancer has actually stopped.

Possible effects of the coronavirus pandemic on cancer deaths

The fear, and difficulty, of going to medical facilities for routine exams or tests when unusual symptoms appear are often delayed or skipped entirely. This can lead to later diagnoses and, potentially, more deaths. The effects will probably not be known quickly. As Rebecca Siegel, senior scientific director of surveillance research at the American Cancer Society and lead author of the referenced report, said, “This will be an impact that will be felt slowly over the next decade.”

With vaccinations in process for Covid-19, cancer doctors anticipate, and hope, the pandemic will be a minor interruption in the decades- long progress made in the fight against cancer deaths.