Toxic flame retardants gain attention of U.S. consumer commission

Ongoing studies into flame retardant chemicals have raised a serious question: Are ANY of the polybrominated or polychlorinated flame retardants safe enough to be used in household products?

It’s a question I’ve been asking for several years while writing about these chemicals, many of which are known to disrupt hormonal functions in humans and animals. Among them are the familiar polybrominated diphenyl ethers, or PBDEs.

Now the U.S. Consumer Product Safety Commission is weighing in on the question by proposing new regulations that would ban this entire class of chemicals containing bromine or chlorine — now referred to as nonpolymeric organohalogen flame retardants. If these regulations are eventually adopted, they would prohibit the use of organohalogens in four types of products:

  • Any children’s product, including toys and baby furniture, except for car seats,
  • Any type of seat cushion or upholstered furniture,
  • Any mattress or mattress pad, and
  • Any plastic case containing an electronic device, including computers and televisions.

Banning an entire class of chemicals is a fairly radical step, because each chemical in this large group of compounds has its own toxicity profile. Even the staff of the Consumer Product Safety Commission recommended against such a broad regulation. If you are up for some dense reading on the subject, check out the 535-page briefing report (PDF 78.7 mb) or just read the summary in National Law Review.

Despite the opposition by CPSC staff, three out of five commissioners were convinced of the dangers imposed by this broad class of chemicals. They voted, 3-2, to move ahead with a total ban. Convincing documents included a petition for rulemaking (PDF 63 mb) from 12 diverse groups, ranging from the American Academy of Pediatrics to the International Association of Fire Fighters to Consumers Union. The commission also heard formal testimony from these groups and many others. (Review the videos on this page.)

“It is imperative that CPSC’s regulation cover all organohalogen flame retardants as a class when used in consumer products,” states the petition. “This class of chemicals is foreign to the mammalian body and inherently toxic, due to its physical, chemical and biological properties.

“Industry has historically responded to the dangers posed by one organohalogen flame retardant by replacing it with one or more other organohalogens that are, by virtue of their chemical properties, also harmful,” the petition continues. “This exposes consumers to a series of ‘regrettable substitutions’ from one harmful flame retardant to another… The way to end this cycle of toxicity is to ban all products in the categories at issue here if they contain any organohalogen flame retardant.”

A total ban was ultimately the position taken by the commission, although formal rulemaking will take time and may not come to pass. At least two commissioners asked on several occasions if even one of these flame retardants has been proven safe. They never received an answer that satisfied them.

After the vote, Commissioner Elliott Kaye, an attorney, issued a strongly worded written statement (PDF 262 kb): to explain why he agreed to take such a strong action.

“As a policymaker and, more importantly, as a parent, I am horrified and outraged at how chemicals are addressed in this country,” he said. “It is completely irrational that we wait for children to be poisoned before the government is allowed to step in.

“Rational and thoughtful public policy in this area would involve the government and industry coming together to agree which chemicals are safe for human exposure, especially for pregnant women and children, and which ones are not. And more importantly, rational and thoughtful public policy would have these assessments occur before these chemicals are permitted to come onto the market. Waiting to assess the safety of chemicals after they are already in consumers’ homes and our children’s bloodstreams is totally irrational public policy.”

Commissioner Robert Adler, an attorney, seemed to be troubled that he went against the commission’s staff, and he wanted to explain his position.

“As a starting point, let me say that I have little serious disagreement with staff on the science aspect of the issues,” he said in a written statement (PDF 136 kb). “To the extent that there was disagreement, it was over the legal and policy issues arising from the science.

“I note that a large part of the staff’s recommendation rested on their misgivings about treating OFRs as a broad class of chemicals given OFRs’ differing levels of toxicity and exposure to which consumers are subject. I grant staff’s point about the differing levels of toxicity for these flame retardants. But what I have not heard from staff, nor from any of the witnesses at our hearings, is credible evidence demonstrating that there are any ‘safe’ organohalogen flame retardants.”

He said all the chemicals in the class seem to have common characteristics. For example, they pass into cells freely, do not metabolize easily, inhibit a cell’s defense system, bioaccumulate in the tissues and cause harm that can be linked to the chemical structure.

“There are certainly a number of OFRs where we have no studies to provide us with proof of harm, but years of experience confirm that every time we get sufficient data to evaluate the risk of harm of any specific OFR, we always find it to be so toxic that we start to remove it from our products. In other words, the more evidence that accumulates, the stronger we see the case against the use of these chemicals.”

As part of the coming regulatory process, the Consumer Product Safety Commission agreed to convene a chronic hazard advisory panel to assess the risks of flame retardants, drawing on all available information.

Meanwhile, the commission also issued a “guidance document” that calls on manufacturers, distributors and retailers to voluntary ensure that their products do not contain added flame retardants. Consumers, especially those who are pregnant or have young children, are advised to make sure products they purchase are free of such chemicals.

While the commission appears to be moving on a course of tough action, the regulatory process can be long and filled with potential delays. In fact, through normal appointments of commission members, President Trump will be able to change the direction of the commission over the next four years if he so chooses.

Commissioner Anne Marie Buerkle, whose term was extended by seven years in February when Trump named her to chair the commission, does not support the commission’s decision on flame retardants.

“My Democrat colleagues claim that there is ‘overwhelming scientific evidence’ of toxicity across the class; indeed, we heard witnesses at our hearing last week maintain that every organohalogen that has been adequately studied has been found to cause adverse effects,” Buerkle said in a statement (PDF 626 kb). “Even if that claim is accepted at face value, do all such adverse effects result from prevailing exposures? We know that substances as benign as oxygen and water — two of the most essential requirements for human existence — can cause death when too much is inhaled or imbibed. Is there something exceptional about organohalogens such that the dose becomes unimportant?”

Buerkle said she supports formation of a chronic hazard advisory panel, but she believes the results should be available to the commission before moving forward with regulations.

As for chemical manufacturers, it appears that they are not going down without a fight over flame retardants. A statement from the American Chemistry Council (PDF 86 kb), which represents the industry, says it will inform manufacturers and other businesses that the commission’s action has no binding effect.

“The value chain should feel confident that they can continue to use these chemistries in certain applications consistent with existing national and international regulations while CPSC conducts its further analysis of these substances,” says the statement.

Environmental and consumer groups say they will push retailers not to sell products with flame retardants, and “Consumer Reports” magazine offers recommendations about how people can avoid toxic flame retardants.

Meanwhile, Washington is among a growing number of states that have banned certain flame retardants. Based on findings from the state Department of Ecology, the Legislature approve a ban on the worst chemicals in 2008, followed by others last year. See Ecology’s webpage on the PBT Initiative.

For further reading, here are some stories from the Encyclopedia of Puget Sound:

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