Wasting Away: Why Federal Environmental Statutes Are Currently Unable to Regulate Radio Frequency Identification Chip Disposal and Prevent Widespread Environmental Harm

• Date: 01 March 2009

39 ELR 10186 ENVIRO NMENTAL LAW REPORT ER 3-2009

Imagine a world in which reta ilers and manufacturers

know where every consumer item is at all times. From

manufacture to the point of sale, every consumer item

can be tracked individually along the supply chain. Out-of-

stocks are virtua lly eliminated. Imagine nding every item on

your list, every time you go into a store—any store. Would

you spend less? According to the retail industry you would.1

Retailers claim that radio frequency identication (RFID)

technology w ill transform the way business is done and the

shopping experience itself by reducing out-of-stock merchan-

dise and tracking inventory throughout the supply cha in.2

Accordingly, shoppers will pay less for items, because the cost

of doing business will be less.

RFID technology allows retailers to track manufacturers’

items from a distribution center, through transit, and on to

individual stores. Once at the store, RFID tells managers how

many items a re in stock a nd exactly where those items a re,

right down to the particular shelf the item is sitting on.3 To

that end, retailers are promoting “item-level tag ging,” where

every item’s packaging is axed with an RFID ta g.4

In American consumer society, item-level tagging could

result in tens of billions of tags used annually in the retail

1. Mark Robert, RFID’s Consumer Benets, RFID J., http://www.rdjournal.com/

article/articleprint/398/-1/2/ (last visited Jan. 28, 2009).

2. Laura Hildner, Defusing the reat of RFID: Protecting Consumer Privacy rough

Technology-Specic Legislation at the State Level, 41 H. C.R.-C.L. L. R.

133, 135 (2006).

3. Jerry Brito, Relax Don’t Do It: Why RFID Privacy Concer ns Are Exaggerated and

Legislation Is Premature, 5 UCLA J.L. T. 4 (2004).

4. Id.; see also Lars S. Smith, Symposium Review: RFID and Other Embedded Tech-

nologies: Who Owns the Data?, 22 S C C  H T. L.J.

695, 696 (2006) (the smaller sizes of RFID tags make item-level tagging possible

in the future).

industry alone.5 American consumers are used to instanta-

neous gratication. Consumers want it now and want it cheap.

Unwanted goods, along with their packaging, are placed curb-

side on the designated day and magically disappear. In 2005,

Americans sent approximately 4.5 pounds (lbs.) of waste per

person, per day, to landlls.6 In the future, that waste wil l

include packaging and used goods containing RFID tags.

Alone, each chip, which can be t he size of a grain of sand,

poses no undue risk. But tens of billions of these chips, each

containing heavy metals and small amounts of hazardous ele-

ments such as arsenic and germanium, will end up in America’s

landlls, left to slowly leach out their hazardous components.7

e best way to ensure that the toxic constituents in RFID

chips do not make their way into our nation’s soils, ground-

water, or surface water is to regulate RFID chip disposal to

prevent harm to human health and the environment. Pos-

sible regulating authorities include federal, state, and local

agencies. Currently, no federal agency has chosen to regulate

5. Rob Glidden, RFID: e Next Big Little ing, http://www.fcc.gov/realaudio/

presentations/2004/100704/RobGlidden.pdf (last visited Jan. 28, 2009); see also

Smith, supra note 4, at  n.18; Gilbert, infra note 50 (the second-largest RFID

application—behind retail use—will be in the postal industry with potentially

one trillion postal items tagged yearly by 2020).

6. U.S. Environmental Protection Agency (EPA), Basic Facts: Municipal Solid Waste

(MSW), http://www.epa.gov/garbage/facts.htm (last visited on Jan. 28, 2009).

7. Marshall Brian, How Semiconductors Work, H S W, http://computer.

howstuworks.com/diode.htm/printable (last visited Jan. 28, 2009); see also

U.S. G A O, R  C R-

, I S: R F I T-

   F G 26 (2005) (GAO-05-551) [hereinafter

GAO-05-551] (tags contain silicon, adhesives, and nickel and the antennae are

typically made from copper, aluminum or silver); Semiconductor Materials, S

J S U, http://www.engr.sjsu.edu/WofMatE/Semiconductors.

htm (last visited Feb. 19, 2009) (there are three semiconducting elements: (1)

Silicon (Si); (2) Germanium (Ge); and (3) Tin (Sn), with Si and Ge the most

widely used. Another important material is GaAs, a compound of Gallium (Ga)

and Arsenic (As)).

Wasting Away: Why Federal

Environmental Statutes Are Currently

Unable to Regulate Radio Frequency

Identication Chip Disposal and Prevent

Widespread Environmental Harm

By B Jennifer Lemieux

B Jennifer Lemieux is a J.D. Candidate, Roger Williams University, 2009. She would like to thank Prof. Jared

Goldstein for his helpful comments and suggestions on the many drafts of this Article, and Prof. Anne Lawton,

Megan K. Maciasz, and Timothy Mahoney for their assistance with editing comments and suggestions.