September 28, 2017
TO: Interested Customers, Downstream Users and Value Chain Organizations
RE: Recent CPSC Decision on Additive, Non-Polymeric Organohalogen Flame Retardants
In 2015, a coalition of non-governmental organizations 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.
On September 20th, the CPSC voted to 2-3 (three Democratic Commissioners to two Republican Commissioners) to:
- grant the NGO petition;
- initiate rulemaking which will include additional steps for evaluating and potentially regulating additive non-polymeric organohalogen flame retardants in certain products(This process will include formation of a Chronic Hazard Advisory Panel to further evaluate the science around these substances); and
- issue guidance to consumers and manufacturers regarding potential concerns about the use of additive, non-polymeric organohalogen flame retardants in children’s products, upholstered furniture sold for use in residences, mattresses (and mattress pads), and plastic casings surrounding electronics.
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.
Perhaps the most concerning aspect of the vote is CPSC’s plan to issue guidance discouraging the use of additive, non-polymeric flame retardants in children’s products, upholstered furniture sold for use in residences, mattresses (and mattress pads), and plastic casings surrounding electronics. That guidance is expected to be issued in the Federal Register on September 28th. This is an unprecedented action that has the potential to create confusion in the marketplace, given that the CPSC is continuing to evaluate these substances and the fact that there has been no formal regulatory determination by the CPSC.
In terms of the overall CPSC action, it is important to note the following facts:
- At this time, the CPSC is only initiating a rulemaking process to further study additive, non-polymeric organohalogen flame retardants. This will be conducted according to CPSC processes, including evaluation of these substances consistent with the Federal Hazardous Substances Act.
- The CPSC guidance is not a final regulatory action and there is no restriction or ban on these substances by the CPSC.
- The planned CPSC guidance is non-binding and only represents the views of three commissioners who voted to proceed with further evaluation of these substances.
- The CPSC decision is not consistent with the state of the science and ignores the CPSC Staff’s own science-based review which recommended that this petition be denied 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 has not properly considered the potential impact on fire safety of consumer products in rendering its decision. This will be something the CPSC will need to consider in its ongoing review, with particular attention paid to fire safety.
- The CPSC decision runs counter to and is in conflict with regulatory assessments and determinations by US EPA under the new Lautenberg Chemical Safety Act and regulatory authorities around the world. In this regard, consumers, manufacturers, importers, distributors and retailers are urged to carefully consider this issue and guidance being issued by the CPSC in the context of the overall regulatory systems in place for chemicals in the US and globally.
- Consumers, manufacturers, importers, distributors and retailers also need to evaluate the CPSC guidance in the context of the political nature of the decision, the state of the science and the need to fully consider all aspects of product safety, including fire safety.
- The value chain should feel confident that they can continue to use additive, non-polymeric organohalogen flame retardants in specific applications consistent with existing national and international regulations while the CPSC conducts its further analysis under the FHSA.
- The chemical industry, through the American Chemistry Council and its North American Flame Retardant Alliance, will continue to engage in the CPSC regulatory process as it evaluates these substances and is exploring all options to ensure the CPSC’s planned guidance conveys accurate, factual information on product safety to consumers and businesses.
Attached for your information is a more detailed overview of this issue and a question and answer document that could be helpful as this issue develops. Additional information and supporting resources will also be available shortly at www.FRfacts.com and www.chemicalsafetyfacts.org. We would encourage you to share this information with you respective members, trade groups and other appropriate value chain stakeholders.
ACC and its North American Flame Retardant Alliance are available to provide briefings, webinars and any additional information that you think would be valuable. We will be following up with you to coordinate such efforts.