Products Liability Law Daily Commissioners react to CPSC ban on all additive, non-polymeric organohalogen flame retardants
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Wednesday, September 27, 2017

Commissioners react to CPSC ban on all additive, non-polymeric organohalogen flame retardants

By Colleen Kave, J.D.

Last week, the Consumer Product Safety Commission (CPSC) voted three to two to grant a petition requesting that the agency ban organohalogen flame retardants (OFRs) in four classes of products and to convene a Chronic Hazard Advisory Panel (CHAP) pursuant to the procedures set forth in the Consumer Product Safety Act (CPSA) to assess and issue a report on the risks to consumers’ health and safety from use of these chemicals in the enumerated product categories. Additionally, CPSC staff were directed to issue guidance to the public on the hazards of OFRs. While Commissioners Robert S. Adler and Elliot F. Kaye issued statements praising the actions as necessary and reasoned judgments based on imperfect information, Acting Chairman Ann Marie Buerkle blasted the measures for being excessive, inefficient, and inappropriate.

Background. In July 2015, Earthjustice and the Consumer Federation of America filed the petition at issue pertaining to OFRs. The two organizations were joined in the petition by the American Academy of Pediatrics; the American Medical Women’s Association; Consumers Union; the Green Science Policy Institute; the International Association of Fire Fighters; Kids In Danger; Philip Landrigan, M.D., M.P.H.; the League of United Latin American Citizens; the Learning Disabilities Association of America; and Worksafe. The petition specifically asked CPSC to declare that: (a) any durable infant or toddler product, children’s toy, child care article, or other children’s product (other than children’s car seats) that contains additive OFRs is a "banned hazardous substance"; (b) any article of upholstered furniture sold for use in residences and containing additive OFRs is a "hazardous substance" and a "banned hazardous substance"; (c) any mattress or mattress pad with additive OFRs is a "hazardous substance" and a "banned hazardous substance"; and (d) any electronic device with additive OFRs in its plastic casing is a "hazardous substance" and a "banned hazardous substance" [see Products Liability Law Daily’s August 19, 2015 analysis].

According to the petitioners, based on the physico-chemical properties of additive OFRs, all such chemicals in the class will migrate out of consumer products and persist in the indoor environment. They also contended that because OFRs are, as a class, foreign to the human body and inherently toxic due to their physical, chemical, and biological properties, human exposure to these chemicals will result in adverse human health impacts. In addition, the petitioners believed that declaring the specified categories of products containing additive OFRs to be "banned hazardous substances" is necessary to adequately protect public health and safety, that action short of a ban under the FHSA would not adequately protect the public health and safety, and that the ban must apply to the entire class of additive OFRs.

Vote to ban OFRs. CPSC staff recommended that the agency deny the petition, in part because they had misgivings about treating OFRs as a broad class of chemicals given their differing levels of toxicity and the range of exposure to which consumers are subject. However, Commissioner Adler contended that while the research has not proven that some of these chemicals are harmful, neither have the studies shown that there are any "safe" OFRs. Further, Adler cited Dr. Linda Birnbaum, Director of the National Institute of Environmental Health Sciences and the nation’s preeminent toxicologist, in arguing that because there are so many of these substances, and because they bioaccumulate and exist in mixtures of things like household dust, it defies common sense to regulate them one-by-one. Consequently, as a matter of law and policy, Adler defended his decision to fill in any data gaps with analysis of known data and, therefore, to address OFR risks as a class. By convening a CHAP and publishing a guidance, Adler believes the agency can fulfill its duty by informing and advising the public and industry stakeholders while research on OFRs continues.

Commissioner Kaye echoed Adler’s rationale, stating that CPSC should "act based on what we know, not on what we do not know." Based on the data presented in the petition and the public hearing, Kaye described the evidence of health hazards associated with OFRs as overwhelming, and he asserted his duty to address the potential for harm rather than "wait for children to be poisoned." While acknowledging that CPSC is a small agency with too few funds to assess adequately and quickly the safety of all chemicals before they enter the market, Kaye stressed the agency’s responsibility to play as meaningful and effective a role as possible to protect consumers.

Acting Chairman Buerkle’s dissent. Expressing her displeasure with the Commission’s decision, Chairman Buerkle challenged the majority’s treatment of OFRs as a homogenous class of chemicals, calling to mind CPSC’s recent work on phthalates and the differences in molecular structure within that family of chemicals. Additionally, Buerkle noted that even benign substances such as oxygen and water can be lethal in excessive doses, and that European regulators, known for their precautionary principle, have chosen not to regulate some OFRs. Consequently, Buerkle opined, a CHAP might be useful to advise CPSC on the risks associated with specific OFRs, but banning the subject chemicals and issuing guidance recommending against the use of OFRs before receiving the CHAP’s determination is illogical and premature. Buerkle also expressed concern about the effect a ban on OFRs will have on fire safety, and she suggested that adopting California’s recently revised furniture flammability standard (TB 117-13) as a federal standard would have been more effective and efficient than initiating a CHAP, which can take up to a decade to complete. Finally, Buerkle accused her colleagues of hoping to achieve the same results as a ban on OFRs without affording due process to the industry stakeholders whose products contain the chemicals, and she suggested that the EPA would be a better agency to address the petitioners’ concerns.

MainStory: TopStory CPSCNews BabyProductsNews ChildrensProductsNews HouseholdProductsNews ChemicalNews

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