By Jackie Guzman*
In the typical case, chemical regulation in the United States does not require rigorous testing of the chemicals that are allowed into consumers’ homes until after harm has been detected. It is necessary to break out of the cycle that fails to discover harm from chemicals until the damage is done and fixes the problem with new chemicals that could present similar or even greater risks. The dysfunction of this cycle is perhaps nowhere better illustrated than in the 40-plus year history of flame retardant regulation.
In 1975, California passed Technical Bulletin 117 (TB117), an administrative regulation that required furniture companies and manufacturers to lace upholstered furniture with flame retardants.[i]The goal of this regulation was to prevent fires that were being started from neglected cigarettes.[ii]Cigarette companies were at a crossroads: either they could prevent fires by creating self-extinguishing cigarettes that would be less likely to start a fire, or they could push for legislation that would put the responsibility on the furniture manufacturers.[iii]They chose the latter.
Because California has such a huge market, once TB117 was passed, furniture manufacturers decided to equip all furniture sold within the US with flame retardant chemicals.[iv]
One of the main classes of chemicals used as flame retardants were polybrominated diphenyl ethers (PBDEs) which have since proven to be a very harmful to human health.[v]In studies done on rats and rabbits, PBDEs have been found to critically affect neurobehavioral development and to have harmful effects on the thyroid and liver.[vi]At very high doses, PBDEs are carcinogenic in adult animals.[vii]However, because conclusive studies have not been conducted on humans, the EPA has only classified some PBDEs as “suggestive evidence of carcinogenic potential.”[viii]
Despite only a suggestion of cancer, in 2003 California decided to ban PBDEs from being used as flame retardants.[ix]The Environmental Protection Agency (EPA) followed suit and implemented rules to encourage the phase-out of most PBDEs in 2014.[x]
In 2008, a flame-retardant chemical mixture called “Firemaster 550” was developed to replace PBDEs. Firemaster was tested on rats as well and was found to be an endocrine disruptor, causing extremely rapid weight gain in offspring whose mothers were exposed to the chemicals. It also was found to cause early puberty, thyroid disruption, cardiovascular problems, and glucose regulation difficulties.[xi]While Firemaster was intended to be a replacement for PBDEs, a study measuring household concentrations of the two sets of chemicals before and after implementation of the California’s PBDE ban found that the level of Firemaster chemicals had increased more than the level of PBDEs had decreased.[xii]This suggests that “replacing” one flame retardant with another, without further remedial measures, serves mostly to increase the overall amount of flame retardants we are constantly being exposed to, rather than to genuinely replace one with another. Results from the study on the PBDE phase-out “highlight the evolving nature of [flame retardant] exposures and suggest that manufacturers continue to use hazardous chemicals and replace chemicals of concern with chemicals with uncharacterized toxicity.”[xiii]This is an important issue, as states continue banning specific chemicals while remaining silent on new sets of chemicals. Firemaster 550 is still used today, despite its known harms.[xiv]
In 2013, California updated their furniture flame resistance standards through TB117-2013.[xv]The new standards required a smolder test for fabrics rather than an open flame test, which would make flame retardants unnecessary in many cases.[xvi]However, as discussed above, harmful flame retardants continue to be in use. California’s attempt to eradicate flame retardants by eliminating the requirement did not go far enough to actually protect consumers against the harmful chemicals.
Then, in September 2018, California made the move to ban outright a broad class of flame retardants through Assembly Bill No. 2988.[xvii]The bill bans “Persistent Organic Pollutants” (POPs) which are “chemicals [that] accumulate in our bodies and in the environment, persist in the environment for long periods of time, are capable of long-range transport, and are toxic to humans and animals.”[xviii]The bill further acknowledges that these types of chemicals have traveled to the Arctic and deep into the sea and have polluted our “atmosphere, seawater, freshwater, sediments and a variety of wildlife.”[xix]The bill bans flame retardants from new children’s products, mattresses and upholstered furniture. The new standards will be fully enforced beginning January 1, 2020.[xx]
Although California’s newly passed regulation is a major step in the right direction, two problems will still persist if even stricter action is not taken.
The first problem involves eliminating the flame retardants still in our homes and in our environment. PBDEs are ubiquitous and persistent. They have been found in human breast milk and in wildlife, with particularly high accumulation in marine mammals (e.g., whales) and fatty fishes.[xxi]Despite the fact that PBDEs are even in the food we eat, we are currently doing nothing to eliminate them from our bodies and our environment. Although their levels in our households have been on the decline since PBDEs stopped being used in new product, the harmful chemicals still persist.[xxii]This means that the negative effects of PBDEs will continue to plague us.
The second, more pressing problem, is that the 2018 California regulation does nothing to prevent similar problems from occurring in the future. Administrative agencies should be using their power to protect their constituency. Here, this would mean having more prudence when it comes to the types of chemicals allowed into people’s homes. Current American regulatory structure allows, and sometimes forces, chemicals to be used before the consequences are known, requiring time to pass and experience to develop. If it turns out the original chemical application was harmful, we replace and repeat. We allow faulty laws and regulations to be enacted, then wait for the law to catch up as knowledge of harmful consequences arises. To prevent this problem in the future, this cycle needs to change. Greater caution needs to be applied when assessing broad risks to the environment and public health before allowing potentially harmful chemicals to be used on a wide scale.
*Jacquelin Guzman is a Junior Editoron MJEAL. She can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i]Markham Heid, You Asked: Can My Couch Give Me Cancer?, Time(Aug. 24, 2016), http://time.com/4462892/couch-cancer-flame-retardants/.
[iii]Patricia Callahan & Sam Roe, Big Tobacco Wins Fire Marshalls as Allies in Flame Retardant Push, Chicago Tribune(May 8, 2012), https://www.chicagotribune.com/ct-met-flames-tobacco-20120508-story.html.
[iv]Heid, supranote 1.
[v]Yuning Ma et al., Has the Phase-Out of PBDEs Affected Their Atmospheric Levels? Trends of PBDEs and Their Replacements in the Great Lakes Atmosphere, 47 Envtl. Sci. & Tech. 11,457, 11,457 (2013); Per Ola Darnerud, Toxic Effects of Brominated Flame Retardants in Man and in Wildlife, 29 Env’t Int’l841, 841 (2003).
[vi]Darnerud, supranote 5, at 843.
[viii]U.S. Dep’t of Health & Human Servs.,Toxicological Report for Polybrominated Diphenyl Ethers (PBDEs)5 (Mar. 2017).
[ix]Jennifer Lee, California to Ban Chemicals Used as Flame Retardants, N.Y. Times(Aug. 10, 2003), https://www.nytimes.com/2003/08/10/us/california-to-ban-chemicals-used-as-flame-retardants.html.
[x]Assessing and Managing Chemicals Under TSCA: Polybrominated Dyphenyl Ethers (PBDEs), Envtl. Protection Agency, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/polybrominated-diphenyl-ethers-pbdes (last visited Oct. 29, 2018).
[xi]Matt Shipman, Study: Flame Retardant ‘Firemaster 550’ is an Endocrine Disruptor, NC State News(Oct. 24, 2012), https://news.ncsu.edu/2012/10/wms-patisaul-firemaster/.
[xii]Robin E. Dodson et al., After the PBDE Phase-Out: A Broad Suite of Flame Retardants in Repeat House Dust Samples from California, 46 Envtl. Sci. & Tech. 13056, 13056 (2012).
[xiv]Amanda Cuda, Study: Removing Flame Retardants From Nap Mats May Lower Chemical Exposure, ctpost(Apr. 25, 2018), https://www.ctpost.com/local/article/Study-Removing-flame-retardants-from-nap-mats-12864668.php.
[xv]Amy Westervelt, California’s Fire Code Update: The End of Toxic Flame Retardants?, Forbes (Feb. 8, 2013), https://www.forbes.com/sites/amywestervelt/2013/02/08/californias-fire-code-update-the-end-of-toxic-flame-retardants/#5d807bde198d.
[xvii]Home Furnishings and Thermal Insulation Act, AB No. 2998 (2018) (signed into law Sept. 29, 2018).
[xx]AB No. 2998 (2018).
[xxi]Darnerud, supranote 5, at 842.
[xxii]Dodson, supranote 12.