Everything you need to know about aquatic toxicity

Published on
March 28, 2022
aquatic toxicity
animal testing
aquatox paradox
aquatic environment
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AJ Kenny
AJ Kenny
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Many consumer brands have made a commitment to themselves and their customers that they will not support or perform animal testing for ingredients they use or products they formulate. This is bold, inspirational, and challenging. A large, but relatively unknown, part of the challenge is regulatory authorities that require animal testing in order to assess aquatic toxicity for waste management. If you do not test, then your product must be managed as toxic to the aquatic environment. In this strange scenario, cruelty-free = toxic…hence, the aquatox paradox.

It should be noted that testing is not inherently bad, and this is especially true when introducing novel chemical constituents to the environment. That being said, testing does not always need to involve live animals and testing products for the sake of testing, regardless of how well studied, needs to be re-evaluated.

Aquatic Toxicity

Imagine a laboratory room filled with tanks of water, 10 fish per tank, all being dosed at various concentrations of chemicals or products to determine lethality. The objective of this test is to assess aquatic toxicity or, in some cases, prove that a product is not toxic. Each test requires a minimum of 40 fish (2 concentrations, performed in duplicate, with 10 fish per sample) in order to determine the lethal concentration that will kill 50% of the test population in a 96-hour period (a.k.a. LC50). If the results are not conclusive then additional testing is necessary.

This test method, also known as the “fish kill test”, is not pleasant to imagine and immediately prompts two questions:

1. Why is this being done?
2. Isn’t there an alternative?

Why is this being done?

Simply put, select regulatory authorities have decided that physical testing is the only way to truly determine if a waste or a potential waste could be hazardous to the aquatic environment. No ifs, ands, or buts about it. If you do not perform this test, then your product will default to being toxic and that brings a whole suite of obligations as well costs to developing and managing a product.

For example, toxic products become subject to regulation, which requires extensive documentation, reporting, training, and pass-through costs to manage incineration (destruction with high heat) in order to remain compliant. For a product like a cosmetic, failure to perform a test will automatically classify the item as toxic, and it will be incinerated regardless of whether it truly is toxic or not.

Here's where it gets messy. Sending non-toxic products to incineration is much more expensive than other waste management methods like landfilling, recycling, and donation. Furthermore, incinerating products and their packaging creates unwanted persistent organic pollutants (POPs) such as dioxins, which are known carcinogens according to the EPA.

In summary, some authorities require that the fish kill test be performed in order to prove a material is not toxic. However, for the vast majority of consumer products, this test is unnecessary and inhumane — we can do better than this.

Isn’t there an alternative?

These testing requirements have been around since the 1980s and have not been seriously reviewed since that time. Meanwhile, in the past 20 years, the UN has developed and advocated for a reduction in animal testing through the use of pre-existing toxicity data and mathematical equations. Using math, one can estimate the aquatic toxicity based on relevant ingredients and the available toxicity data for those ingredients.

Smarter Sorting champions this approach and is already doing this at scale. Our tech services consume ingredients and concentration ranges, fetch statistically valid ecotox data from our databases, model the concentrations within each authority’s approved calculation method (see images below), and provide a classification that can be used in lieu of testing on animals.

Regulatory action

Today there are only two US states that use aquatic toxicity to determine hazardous waste characteristics, Washington and California. However, only Washington has taken regulatory action to allow for aquatic toxicity to be calculated as an alternative to physically testing every product formulation.

One interesting aspect to California is that other toxicological endpoints for dermal, oral, and inhalation toxicity already allow for calculation using ingredient-level data. It is unclear why the line has been drawn for calculating aquatic toxicity, especially given the acceptance for such methods both internationally and domestically. In addition to Washington, the EU has adopted the calculation methods that were developed through the UN and the Globally Harmonized System of Classification and Labelling of Chemicals (GHS) — arguably the world's foremost chemical classification scheme.

As is typical in the world of regulations, consumer demand and science are ahead of the curve and interested stakeholders need to proactively seek change. Changing regulations and accepting new science takes time, effort, and the budget to do so…but it is worth it. Data alone is not enough to drive change and make the world better. This is why Smarter Sorting is leading the discussion on regulatory reform to eliminate unnecessary animal testing. Right now we are supporting Assembly Bill 1793 in California (AB-1793 Quirk) to enable the use of humane, math-driven methods to determine aquatic toxicity.  

Additionally, with the passage of this bill, non-toxic products will be diverted away from incineration in favor of more sustainable end-of-life pathways such as recycling and donation. Not only will this drastically reduce a retailer’s waste bill, but it will also reduce the overall environmental impact of the product and increase its circularity. Retailers and brands can communicate this positive impact to their customers and investors to further promote their ESG strategy and goals.

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September 16, 2022
5 min read

Governor Newsom signs legislation to revisit necessity of aquatic toxicity testing

California Governor Gavin Newsom signed into law National Stewardship Action Council sponsored AB 1793 by Assembly member Bill Quirk to stop testing on fish

This press release was originally published by the National Stewardship Action Council on September 15th, 2022

For Immediate Release:


Retailers, Environmental, Clean Air, and Animal Protection Groups Thank Legislature and Governor for Taking Steps to End Unnecessary Fish Testing and Incineration.

(SACRAMENTO) – Tuesday afternoon, Governor Gavin Newsom signed into law California’s Assembly Bill 1793 by Assembly member Dr. Bill Quirk, which will require the Department of Toxic Substances Control (DTSC) to review the continued value of acute aquatic toxicity testing, or “aquatox” testing on live fish, which determines if waste is hazardous to the aquatic
environment. The law will also require DTSC to evaluate alternative testing methods such as calculation-based methods (otherwise known as computational toxicology) and submit a report to the Board of Environmental Safety that includes recommendations on next steps.

“We were happy to sponsor a bill that benefits so many, including the communities most impacted by incineration plants or hazardous waste landfills where these products have previously been burned or buried,” said Heidi Sanborn, Executive Director of NSAC.

Currently, retailers must understand both federal and state toxicity regulations to sell and manage consumer products compliantly or are subject to hefty fines. When faced with California’s complicated hazardous testing criteria, many retailers will skip the hazardous evaluation process altogether and the waste must be presumed as toxic. Therefore, instead of conducting “aquatox” testing, the status quo for many retailers is to “play it safe” and consider all potentially hazardous waste as “hazardous”, which includes returned, cruelty-free, and unsellable products.

“The replacement of the “aquatox” test with a new calculation-based methodology means Smarter Sorting’s retail clients stand to save millions of dollars a year on the unnecessary incineration of returned and non-saleable products, plus the ability to divert some of these products away from waste altogether and donate or reuse them. Moreover, brands soon could accurately classify their product without the requirement of animal testing” said Jacqueline Claudia, Chief Executive Office for Smarter Sorting.

California is the only state that still requires the “aquatox” test on live fish, with other states having already taken action to allow for toxicity to be calculated rather than physically tested. An antiquated 30-year-old California testing requirement, AB 1793 will finally result in an evaluation of whether modern, calculation-based methods are more appropriate.

“The fish test was last updated over three decades ago. It leads to innocuous products being treated as hazardous waste,” said Assemblymember Dr. Bill Quirk. Specifically, preliminary data demonstrated that many household products fail the “aquatox” test, including nearly all soaps and shampoos. Requiring that these relatively innocuous products be managed as hazardous waste increases businesses’ costs and the burden on low-income communities where hazardous waste facilities are often located.

California already had plans to broadly reevaluate its hazardous waste testing criterion via The Budget Act of 2022, which was signed into law in June and includes a Budget Change Proposal for DTSC to add 8 positions and $1.5 million annually to evaluate all existing California hazardous waste criteria. AB 1793 simply ensures the existing hazardous waste evaluation will include consideration of the “aquatox” criteria and alternatives such as calculation-based methods. AB 1793 received unanimous votes on both the Senate and Assembly Floors, and was signed by Governor Newsom on Tuesday, September 13th

Media contact:
Heidi Sanborn, Executive Director
National Stewardship Action Council
(916) 217-1109

Original Release published on: https://www.nsaction.us/

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