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 identication (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 axed 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 Benets, RFID J., http://www.rdjournal.com/
article/articleprint/398/-1/2/ (last visited Jan. 28, 2009).
2. Laura Hildner, Defusing the reat of RFID: Protecting Consumer Privacy rough
Technology-Specic 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 gratication. 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 landlls.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
landlls, 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.
howstuworks.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
Identication 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.