A recent, groundbreaking decision by the Consumer Product Safety Commission may signal a major shift in how consumer products are regulated to keep us safe from toxic chemicals.
For the first time ever, federal regulators have called for banning an entire class of flame retardants used in consumer products that don’t protect against fires but do cause harmful effects in humans. Regulators will now start working out the details of this comprehensive ban, which was pushed for by a diverse coalition including Earthjustice. Once the ban is enacted, flame retardant manufacturers can no longer simply swap one toxic flame retardant for another—a common practice that leads to regulatory whack-a-mole and regrettable chemical substitutions.
The chemical swap goes like this: Scientists discover an existing flame retardant is harmful. There’s a public outcry, so the industry replaces the old chemical with a new, less-studied one that’s structurally similar but has a different name. Problem solved, except that the new flame retardant is often later found to be just as harmful—or sometimes even more harmful—than the chemical it replaced.
Unfortunately, chemical swaps like this aren’t limited to flame retardants; they’re widespread in the chemical industry. The market is flooded with these regrettable substitutions, and regulators are struggling to keep up. To date, there are more than 80,000 chemicals on the market, the vast majority of which have never been fully tested for safety. Last year’s updates to our nation’s chemical safety law, the Toxic Substances Control Act, are a big step toward eventually ensuring that the products we use and the chemicals in them are a whole lot safer. But in the meantime, consumers are left holding the (chemically-lined) bag, clueless about which products are actually safe.
That’s why the commission’s recent decision to ban an entire class of flame retardants known as organohalogens is so significant, says Earthjustice attorney Eve Gartner. She’s been working for years with a broad coalition of health, safety and consumer groups to limit or ban the use of these chemicals, which migrate easily out of household products, settle into our air and dust, and eventually turn up in our bloodstreams. Today, 97 percent of U.S. residents have measurable quantities of toxic flame retardants in their blood. These chemicals are linked to endocrine and thyroid disruption, impacts to the immune system, reproductive toxicity and cancer. Worse, they don’t protect against most fires, as was revealed in 2012 by a Chicago Tribune investigative series.
“These chemicals are unsafe, and they serve no purpose,” says Gartner. “So why are we taking the risk of having them in our products?”
Back when Gartner first started researching the flame retardants issue, she knew it would take more than just science to convince lawmakers to regulate them. She began reaching out to diverse groups like firefighters, pediatricians and communities of color, which are disproportionately impacted by flame retardants.
“We wanted to go after this in every possible way,” says Gartner.
Years ago, Earthjustice joined a coalition of stakeholders working to change a decades-old California flammability standard that effectively required manufacturers to use flame retardants in furniture and children’s products. Because California’s market is so big and manufacturers didn’t want to make two separate products, the state standard had in effect become a national standard. In 2013, after a major public outcry, California regulators revised the standard so that manufacturers could meet it without adding flame retardants to furniture. We later successfully defended that standard in court, on behalf of the California Professional Fire Fighters union.
The same coalition then sponsored legislation in California to require manufacturers to label their products indicating whether they meet the California standard with flame retardants. That way, consumers could make their own decisions about whether to purchase products with these chemicals. That legislation was passed in 2014, but making flame retardants optional was not good enough. It was time to ban them altogether.
In 2015, working with Consumer Federation of America and a coalition of key stakeholders, we submitted a legal petition to the Consumer Product Safety Commission, asking it to ban consumer products containing organohalogen flame retardants. After two years, with multiple public hearings, a lot of expert testimony, and comments from thousands of consumers, the commission granted our petition.
“The expertise of witnesses who described the extensive harms associated with this chemical class could not be denied,” says Gartner, adding that the only witnesses who supported the continued use of these flame retardants were from the chemical industry itself.
The commission’s staff will now begin working on the details for a full-on ban. The commission also put out an official warning to consumers, especially women and children, to avoid certain products that contain these flame retardants. Finally, it’s calling on manufacturers to eliminate flame retardants in certain products, and for retailers to obtain assurances from suppliers that products don’t contain organohalogens.
Unfortunately, there’s no deadline for when the ban takes effect, and in the meantime there’s no binding way to force manufacturers to eliminate flame retardants. Consumers can reduce their exposure by choosing furniture labeled “contains no added flame retardants,” but other products containing organohalogens are not yet labeled. For now, consumers should ask retailers whether their products are organohalogen-free, and should urge them to stock only organohalogen-free products.
“We can’t shop or wet mop our way out of this problem,” says Gartner, adding that government regulations, in addition to market pressure, are necessary to enact change. “The commission must make this proposed ban a reality.”