U.S. Regulators to Start Work on Product Flame Retardant Rule

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By Martina Barash

U.S. consumer safety regulators voted Sept. 20 to convene an advisory panel and begin creating a rule to restrict a whole class of allegedly toxic flame retardants in four product categories.

The 3–2 vote by the Consumer Product Safety Commission came during a meeting to address a March 2015 petition by various health, environmental, and consumer groups.

The groups want the CPSC to ban all non-polymeric organohalogen flame retardants in a chemically “additive” form from children’s products, furniture, mattresses, and the casings of electronics.

A ban of the entire class is needed to prevent manufacturers from replacing one banned harmful chemical with another harmful chemical, they say.

“This is an incredibly significant vote” because a majority of the commission considered a large body of information on the issue and found it convincing, Rachel Weintraub, legislative director and general counsel at the Consumer Federation of America, told Bloomberg BNA after the meeting.

Eve Gartner, a staff attorney at Earthjustice, agreed. “Today’s decision by the CPSC demonstrates the immense power of a broad coalition of health, safety, consumer and civil servants to protect our families,” Gartner said in a statement.

But the American Chemistry Council took a contrary view, saying the vote ignores the importance of flame retardants for fire safety.

“We are disappointed in today’s vote by three of the commissioners at CPSC to take action on a broad and overreaching petition,” the council said in a statement. “Flame retardants are an important tool that can help products meet important fire safety standards. That is why it is so disheartening that the discussion has lacked almost any consideration of fire safety and how the petition could compromise the fire safety of consumer products.”

The CFA, Earthjustice, and other petitioners say the flame retardants are associated with numerous adverse human health effects including reproductive impairment and neurological issues, including “decreased IQ in children, impaired memory, learning deficits, altered motor behavior.”

Other health problems can include endocrine disruption, genetic harm and cancer, according to the groups.

“We commend today’s decision that will eventually rid our homes of this toxic class of chemicals that is damaging our children’s brains and robbing them of their full potential,” Gartner, of EarthJustice, said. A proposal to issue a public guidance message to manufacturers and consumers also passed by a 3–2 vote. It wouldn’t be binding on manufacturers. But Commissioner Joseph Mohorovic (R), who opposed the guidance as going too far, said manufacturers would have to pay attention to it.

The vote to grant the petition went against the recommendation of CPSC staff in briefing materials. Staff members said the data on toxicity and exposure wasn’t sufficient.

Both votes were along party lines.

Long and Short Time Horizons

Cheryl Falvey of Crowell & Moring LLP, a former CPSC general counsel, told Bloomberg BNA that setting up a chronic hazard advisory panel, or CHAP, “can take some time,” especially because of vetting on financial interests. “Once the panel is selected, there is a significant amount of work involved to assess the science critically,” she said in an email. “Realistically, we could be talking years not months.” The flame-retardant issue is complicated because it involves both the hazard of fire and the chronic hazard of exposure to chemicals that inhibit fire, then-Chairman Elliot Kaye (D) said in a December 2015 meeting.Commissioner Robert Adler (D) said he proposed the guidance because the CHAP’s work would take a long time. A guidance would address the issue in the short term, the CHAP and rulemaking in the long term, he said.“Manufacturers will get to work now to meet any guidance the CPSC issues,” Falvey said.A guidance document will “bolster” companies already moving away from OFRs, Weintraub said. Other companies have wanted to phase them out but the chemicals still appear in testing, she said. And it’s important information for consumers, she said.

Data Gaps

Much of the CPSC meeting centered on gaps in data on OFRs and whether the commission had enough evidence to proceed to rulemaking on additive, as opposed to reactive or bound non-polymeric OFRs as a class.Acting Chairman Ann Marie Buerkle (R) took the position that the gaps were too significant to proceed, whereas Adler and Commissioner Marietta Robinson said scientific methodologies were available to extrapolate across data gaps.Intensive negotiations among the commissioners in pursuit of consensus preceded the hearing. Those efforts fell short, however. So did a proposal by Buerkle to separate the votes on a CHAP, which she appeared to support, and rulemaking.

To contact the reporter on this story: Martina Barash in Washington at MBarash@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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