CPSC Review of Additive, Non-Polymeric Organohalogen Flame Retardants
In 2015 a coalition of health, firefighter, consumer and science groups filed a petition asking the U.S. Consumer Product Safety Commission (CPSC) to classify four categories of consumer products under the Federal Hazardous Substance Act (FHSA) as “banned hazardous” substances — children’s products, furniture, mattresses and the casings around electronics — if they contain any additive, non-polymeric organohalogen flame retardants. Petitioners included the American Academy of Pediatrics, the National Hispanic Medical Association, the International Association of Fire Fighters, the Learning Disabilities Association of America, Consumers Union, Consumer Federation of America, the League of United Latin American Citizens, Worksafe, and the Green Science Policy Institute.
The FHSA requires precautionary labeling on the immediate container of hazardous household products to help consumers safely store and use those products and to give them information about immediate first aid steps to take if an accident happens. The Act also allows the Consumer Product Safety Commission to ban certain products that are so dangerous or the nature of the hazard is such that the labeling the act requires is not adequate to protect consumers. More information regarding FHSA requirements and the criteria for determining a “hazardous substance” under the FHSA is available at: http://www.cpsc.gov/Business--Manufacturing/Business-Education/Business-Guidance/FHSA-Requirements/.
The American Chemistry Council and its North American Flame Retardant Alliance (NAFRA) has been engaged on this issue over the last two years. As part of its engagement, ACC and NAFRA conducted educational briefings for the CPSC Commissioners and technical staff, coordinated downstream user input into the CPSC and submitted formal comments on the petition.
On May 24, 2017 the CPSC staff released its technical review of the petition in which Commission staff recommended that the Commissioners deny the petition and specifically concluded that:
- These substances cannot be treated as a class for assessment under the FHSA due to their differing physicochemical properties and toxicological profiles.
- The CPSC cannot determine that the product categories named in the petition are “hazardous” substances under the FHSA.
The CPSC held two public meetings on the petition. The first public meeting solicited stakeholder input on the petition and the second solicited stakeholder input on the CPSC staff technical review of the petition under the FHSA and its recommendation to deny the petition. NAFRA, ACC and a range of downstream users testified at the meetings in opposition to the petition and submitted follow-up information for the CPSC including scientific research, data and questions for the record.
On September 20,, 2017 the CPSC voted 3-2 (three Democratic Commissioners to two Republican Commissioners) to:
- grant the NGO petition;
- initiate rulemaking, which may include additional steps for evaluating and potentially regulating additive, non-polymeric organohalogen flame retardants (including formation of a Chronic Hazard Advisory Panel to further evaluate the science around these substances); and
- issue guidance to consumers and manufacturers regarding concerns about the use of additive, non-polymeric OFRs in certain products.
This unexpected, political decision was taken despite a very strong recommendation from the CPSC’s own technical staff that the NGO petition should be denied based on the state of the science and the fact that all OFRs could not be treated as a class and cannot be found to be “hazardous substances” under the Federal Hazard Substances Act. This decision was also taken despite strong opposition to these actions from other Commissioners, and despite the fact that this issue is currently not included in the CPSC 2018 operating plan or budget, indicating that there had been no intention or resources to support this activity.
This has unfortunately become a political issue as the Democratic majority of Commissioners advanced this decision before the term of one of the Democratic Commissioners is scheduled to end early as October 27, 2017. This issue will be further assessed and ultimately decided by a different slate of Commissioners – hopefully with a more science-based perspective. The Commissioners have the authority in the future to redirect and even discontinue any further work on this issue if they deem appropriate.