This paper provides an update of legislative and regulatory activities in U.S. states and federal agencies around the use of flame retardants in upholstered furniture, children’s products, building insulation and other uses. Annex 1 provides a key to the abbreviated flame retardant names used in this paper.
Forty bills related to flame retardants were introduced in state legislatures during 2017. To date, only two were enacted into law. Maine LD 1821 will restrict the use of any chemical compound for which “flame retardant” appears on the substance safety data sheet in residential upholstered furniture, as defined, in a concentration greater than 0.1% by mass. The prohibition is effective January 1, 2019. The restriction applies only to the foam used in upholstered furniture. Washington SB 51982 directs the Department of Natural Resources (DNR) to develop a report listing long-term fire retardants, foams and gels used in forest fire suppression, use criteria, use practice, instance of use in the last three years, and recommend changes to state policies. The prohibition is subject to available appropriations, and directs the DNR to provide a report to the legislature by December 31, 2017.
In general, state regulation of flame retardants has tended to focus on six substances—DecaBDE, PentaBDE, OctaBDE, HCBD, TCEP, and TCDPP—that have been regulated or are being phased out by many flame retardant manufacturers and users (Table 1). The scope of these regulations tends to focus almost exclusively on upholstered furniture and some children’s products.
Washington’s regulation of additive TBBPA, which is used primarily in acrylonitrile butadiene styrene plastic casings for electronics, is an outlier. It is noteworthy that consumer and children’s electronics are exempt from the restrictions articulated in the statute. While most state regulation has focused largely on specific substances, the recently enacted Maine legislation defines flame retardants broadly as: “a chemical or chemical compound for which a functional use is to resist or inhibit the spread of fire. ‘Flame-retardant chemical’ includes, but is not limited to, halogentated, phosphorus-based, nitrogen-based, nanoscale flame retardants, and any chemical or chemical compound for which ‘flame retardant’ appears on the substance safety data sheet (SDS)” as required by the Occupational Safety and Health Administration’s hazard communication regulations.
In addition to legislative activity, there are several other state programs affecting flame retardants and/or products containing flame retardants. A brief update on each program is provided in Table 2.
The federal government has regulations in place that restrict specific flame retardants, including TDBPP, PentaBDE, OctaBDE, DecaBDE, and HBCD in specific applications.12 There are also important federal regulations in place for the development and introduction of new substances, including new flame retardant substances. New substances are subject to rigorous evaluation by the U.S. Environmental Protection Agency (EPA) before they can be manufactured commercially.16 The evaluation includes requirements for companies to submit pre-manufacture notices to the EPA with information on physical/chemical characteristics, any available health or environmental effects data, and anticipated use and exposure information, including any information on potential byproducts and disposal. As part of the new chemicals process, EPA can prohibit the manufacture of the new substance entirely, impose restrictions on its use, or require additional testing.
U.S. Consumer Product Safety Commission
In 2016, NAFRA submitted comments to the U.S. Consumer Product Safety Commission (CPSC or Commission) on a petition to declare several categories of products containing additive organohalogen flame retardants in non-polymeric form be “banned hazardous substances” under the Federal Hazardous Substance Act (FHSA).13 By the Petitioners’ own admission, the precise number of substances that would be impacted by their proposed ban is not known, but is at least 83.14
The petition asked the Commission to initiate a rulemaking under the FHSA and declare that:
• 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 organohalogen flame retardants, is a ‘‘banned hazardous substance’’;
• Any article of upholstered furniture sold for use in residences and containing additive organohalogen flame retardants is a ‘‘hazardous substance’’ and a ‘‘banned hazardous substance’’;
• Any mattress or mattress pad with additive organohalogen flame retardants is a ‘‘hazardous substance’’ and a ‘‘banned hazardous substance’’; and
• Any electronic device with additive organohalogen flame retardants in its plastic casing is a ‘‘hazardous substance’’ and a ‘‘banned hazardous substance.’’15
The Petitioners argued that all non-polymeric, additive organohalogen flame retardant chemicals are alike in physicochemical properties and toxicity. NAFRA argued that such generalization is flawed and each substance must be considered individually and assessed based on the available scientific data. NAFRA also summarized numerous government studies that concluded the potential risk to consumers from several highly studied additive, organohalogen flame retardants to be negligible across all endpoints and for all exposure scenarios.16
Furthermore, NAFRA argued that contrary to the Petitioners’ declarations, non-polymeric additive organohalogen flame retardants do provide clear benefits to public health and safety and strongly urged CPSC to consider existing fire safety standards for the products covered by the petition in its analysis. NAFRA noted in its comments that the use of flame retardants is supported by researchers in the fire science community. In an open letter signed by 18 fire scientists, leading scientists in the field note that flame retardants are an important part of fire safety.17
They also explain that flame retardants represent a very “broad range of products with differing characteristics, formulations and intended uses,” designed for specific applications that require specific chemical and performance attributes, making it inappropriate to seek to ban a broad class of flame retardant chemicals.18 Additionally, the book Fire and Polymers VI: New Advances in Flame Retardant Chemistry and Science presents peer-reviewed summaries of research from 32 national and international studies concluding that the application of flame retardants in furniture, home insulation, and electronics helps prevent or slow the spread of fire.19 When commenting on the position that flame retardants do not work, the editors of the volume state unequivocally that the claim:
flies in the face of decades of work by thousands of fire scientists, chemists, and others, reported in thousands of peer reviewed papers, showing that from laboratory to full scale tests that flame retardants and flame retardant materials are effective [and] . . . effectively states that decades of peer reviewed work confirmed by thousands of scientists in multiple countries is worthless and that opinion trumps data.20
NAFRA emphasized that granting the petition would dismiss years of well-documented fire safety science and could potentially lead to increased risk of fire-related injury and death. CPSC must consider consequences to increased fire risk to fire-vulnerable groups such as children and senior citizens, as well as existing and ongoing work by other Federal agencies and foreign governments in making its determination. CPSC cannot ignore these risk assessments when considering the petition.
The CPSC Staff published a 547-page briefing package in response to the petition on May 24, 2017.21 The staff recommend that the Commission deny the petition due to “insufficient toxicological and exposure data supporting the Petition.” A public hearing on the petition was scheduled for September 14, 2017. A meeting of the Commissioners to discuss the petition was scheduled for September 20, 2017.
Additional federal regulatory activity has centered on implementation of the Frank R. Lautenberg Chemical Safety Act, which was enacted in June of 2016. The Lautenberg Act mandates more rapid prioritization and decision making by EPA, and some of the short-term actions called for in the Act could affect EPA’s regulation of flame retardants that EPA included in its Work Plan Chemicals Program.
The Work Plan Chemical Program was launched in 2012 and in 2014 U.S. EPA added four “clusters” of flame retardant chemicals to the program.22 The four clusters are:
• Chlorinated Phosphate Esters Cluster (e.g., TCEP, TCPP, TDCPP);
• Cyclic Aliphatic Bromides Cluster (e.g. HBCD);
• Tetrabromobisphenol A and Related Chemicals Cluster; and
• Brominated Phthalate Cluster (e.g., TBB, TBPH).
The four clusters cover a total of 20 chemicals. It is worth emphasizing that during its flame retardant prioritization process, EPA identified approximately 50 flame retardants that it concluded are unlikely to pose a risk to human health, but it has not made any more detailed information publicly available.23 On August 18, 2015, EPA released for public comment draft problem formulation and assessment scoping documents for the chlorinated phosphate ester, cyclic aliphatic bromide, and TBBPA clusters and a data needs assessment for the brominated phthalates cluster.24
It was EPA’s intent to complete the flame retardant assessments in 2016, but the passage of the Lautenberg Act changed that plan. Instead, the agency was required to designate 10 substances from the 2014 Work Plan Chemical Program as high priority for risk evaluation. The 10 chemicals were announced on December 16, 2016, and the scope of the evaluations was published on June 22, 2017. The first ten chemicals for risk evaluation included the Cyclic Aliphatic Bromides Cluster (HBCD). The final risk evaluation must be completed no longer than three years after the designation of a substance as high priority.
Section 6(h) of the amended TSCA requires EPA to take expedited regulatory action on persistent, bioaccumulative and toxic (PBT) chemicals.25 EPA identified five chemicals for expedited action under TSCA 6(h), which included DecaBDE and Phenol, isopropyl, phosphate (3:1). EPA has established public dockets for each of the five chemicals identified and requests any information be submitted to the dockets by December 9, 2017.
Flame retardants were an important chemical management topic for state legislators and federal agencies in 2017. Although 40 bills were introduced in state legislatures in 2017, only two were signed into law. Flame retardant manufacturers and users should expect a similar level of activity in 2018.
1 See http://legislature.maine.gov/legis/bills/bills_128th/billtexts/HP013801.asp.
2 See http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Bills/5198-S.pdf.
3 Sources: CQ StateTrack – Legislative Tracking and NCSL State Regulation of Flame Retardants.
4 See http://www.dtsc.ca.gov/SCPRegulations.cfm.
5 See http://www.bearhfti.ca.gov/industry/bulletin.shtml.
6 See http://www.maine.gov/dep/safechem/.
7 See http://www.maine.gov/sos/cec/rules/06/096/096c889.docx.
8 See http://www.health.state.mn.us/divs/eh/hazardous/topics/toxfreekids/.
9 See https://public.health.oregon.gov/HealthyEnvironments/HealthyNeighborhoods/ToxicSubstances/Pages/Toxic- Free-Kids.aspx.
10 See http://healthvermont.gov/enviro/chemical/cdp.aspx.
11 See http://www.ecy.wa.gov/programs/hwtr/RTT/pbt/caps.html.
12 40 C.F.R. § 721.10000 (significant new use rule for several brominated diphenylethers); 40 C.F.R. § 721.10281 (significant new use rule for HBCD); 42 Fed.Reg. 18850 (1977) (while the ban was proposed, it did not survive judicial challenge. CPSC went after manufacturers individually, and there was a “voluntary” removal of Tris from sleepwear).
13 80 Fed. Reg. 50,239 (Aug. 19, 2015). The public comment period was extended to January 19, 2016. 80 Fed. Reg. 65,174 (Oct. 26, 2015). The Petitioners are Earthjustice, the Consumer Federation of America, the American Academy of Pediatrics, the America Medical Women’s Association, Consumers Union, the Green Science Policy Institute, the International Association of Fire Fighters, Kids in Danger, Philip J. Landrigan, the League of United Latin American Citizens, Learning Disabilities Association of America, the National Hispanic Medical Association, and Worksafe.
14 Letter of November 23, 2015, from EarthJustice and Consumer Federation of America to Chairman Elliot F. Kaye, Commissioner Robert S. Adler, Commissioner Ann Marie Buerkle, Commissioner Joseph Mohorovic, Commissioner Marietta S. Robinson, and Consumer Product Safety Commission. Docket ID: CPSC-2015-0022- 0135.
15 80 Fed. Reg. at 50,239.
16 Comments of the North American Flame Retardants Alliance: Petition HP 15–1 Requesting Rulemaking on Products Containing Organohalogen Flame Retardants; Docket No. CPSC–2015–0022. Submitted January 19, 2016. Docket ID # CPSC-2015-0022-0198.
17 The letter and video testimonials are available at http://flameretardants.americanchemistry.com/Videos-on-Flame- Retardants/Video-Demonstrations/Fire-Scientists-Flame-Retardants-Play-an-Important-Role-in-Fire-Safety.pdf.
19 Morgan, A.B., Wilkie, C.A., and Nelson, G.B. (eds.). 2012. Fire and Polymers VI: New Advances in Flame Retardant Chemistry and Science. American Chemical Society, Washington, DC.
20 Id. at 4.
21 Consumer Product Safety Commission. Staff Briefing Package: In Response to Petition HP15-1, Requesting Rulemaking on Certain Products Containing Organohalogen Flame Retardants. May 24, 2017. Available at https://www.cpsc.gov/s3fs-public/PetitionHP15- 1RequestingRulemakingonCertainProducts
22 For more information about EPA’s TSCA work plan, see USEPA. 2015. TSCA Work Plan Chemicals. Available at http://www.epa.gov/assessing-and-managing-chemicals-under-tsca/tsca-work-plan-chemicals#strategy.
23 U.S. Environmental Protection Agency. 2013. EPA Announces Chemicals for Risk Assessment in 2013, Focus on Widely Used Flame Retardants. Press release dated March 27, 2013. Available at http://yosemite.epa.gov/opa/admpress.nsf/bd4379a92ceceeac8525735900400c27/c6be79994c3fd08785257b3b0054e 2fa!OpenDocument.
24 80 Fed. Reg. 49,997 (Aug. 18, 2015).
25 See https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/persistent-bioaccumulative-and-toxic-
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This paper was orignally published October 2017. “Reprinted with permission from the American Chemistry Council’s Center for the Polyurethanes Industry.”