The U.S. Consumer Product Safety Commission (CPSC) is considering a petition submitted earlier this year by an NYC organization known as Earthjustice along with the Consumer Federation of America and 10 other entities including the American Academy of Pediatrics, Consumers Union, the International Association of Fire Fighters, Kids in Danger and Worksafe. Other co-petitioners include the American Medical Women’s Association, the Green Science Policy Institute, the League of United Latin American Citizens, the Learning Disabilities Association of America and the National Hispanic Medical Association.  

In this petition, these organizations—joined by a medical doctor—are asking CPSC to adopt rules under the Federal Hazardous Substances Act (FHSA) that ban the use of an entire class of flame retardant chemicals known as organohalogens when used with children’s products, upholstered furniture, mattresses and casings that surround electronics. Organohalogens are added to certain nonwovens and, if CPSC does what’s being requested, these FR chemicals would have to be replaced with some other alternative for products offered for sale to the U.S. market.

According to the petition, organohalogens are a health hazard due to their “inherent physico-chemical properties.”  They are also “toxic” and “migrate out of products regardless of how the product is used,” according to the petitioners who cite a “nexus between the mere presence of products containing these chemicals and exposures that put consumers at risk of harm.”

When used in non-polymeric additive form, the petitioners claim that organohalogen flame retardants—due to their high molecular weights­—“migrate from consumer products, leading to widespread human exposures,” which occur because of the “semi-volatile property” of these chemicals which results in “migration of the chemicals and the chemicals’ adsorption into house dust.” Even worse, there is “no way to direct consumers to use affected products in a way that would eliminate exposures.”

As a result, the petition claims that 97% of people living in the U.S. have measurable quantities of organohalogen flame retardants in their blood, as estimated by the national bio-monitoring program overseen by the Centers for Disease Control.

This presents serious public health concerns, the petitioners continue, because all organohalogen flame retardant chemicals—as a class—are toxic due to their physical, chemical and biological properties. Moreover, the petitioners claim that these chemicals have been associated with reproductive impairment (e.g., abnormal gonad development, reduced number of ovarian follicles, reduced sperm count, and increased time to pregnancy) as well as neurological impacts (e.g., decreased IQ in children, impaired memory, learning deficits, altered motor behavior, and hyperactivity); endocrine disruption, and interference with thyroid hormone action (potentially contributing to diabetes and/or obesity); genotoxicity; cancer; and immune disorders.

These chemicals also have a disproportionately negative health effect on vulnerable populations including children, according to the petitioners, and use of flame retardants in the four product categories at issue is not required by any “legally binding flammability standard.”  

Additionally, petitioners claim that exposures to flame retardants from consumer products into homes “cannot be adequately prevented or controlled with warning labels.”  Migration of these semi-volatile chemicals from common household products cannot be prevented, petitioners further claim, and “knowledge that these toxic chemicals migrate from products into the indoor environment does not give consumers the ability to take meaningful measures to avoid exposures.”

Organohalogen chemicals are created by combining carbon molecules with one of the halogen elements; and are also referred to as halogenated flame retardants. These chemicals contain bonds between carbon and the elements bromine or chlorine; and the class of chemicals also includes brominated and chlorinated phosphate ester flame retardants.

To stop future exposures and minimize the health risks, the petitioners are asking CPSC to declare, under its FHSA authority, that “any durable infant or toddler product, children’s toy, childcare article and any other children’s product (other than car seats) that contains additive organohalogen flame retardants, is a ‘banned hazardous substance;’ and 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.’”  The ban would also apply to any mattress or pad that contains additive organohalogen flame retardants.

Petitioners further claim it is imperative that CPSC regulations cover all organohalogen flame retardants as a class when used in consumer products, because this class of chemicals is “foreign to the mammalian body and inherently toxic, due to its physical, chemical and biological properties;” and industry has “historically responded to the dangers posed by one organohalogen flame retardant by replacing it with one or more other organohalogens that are, by virtue of their chemical properties, also harmful.”

The way to end this “cycle of toxicity,” according to petitioners is to “ban all products in the categories at issue here if they contain any organohalogen flame retardant.” For its part, CPSC has been accepting public comment on the petition since late August (more than 120 separate comments have been submitted) and most recently extended the deadline for filing comment to January 19, 2016.

CPSC has also scheduled a public meeting to receive oral presentations concerning the petition. The meeting will be held on December 9 at 4330 East-West Highway in Bethesda, MD, starting at 10 a.m., and requests to make an oral presentation must be submitted (along with written text) to the Office of the Secretary before 5 p.m. on December 2. Participants should limit presentations to approximately 10 minutes and CPSC reserves the right to “limit the time further for any presentation and impose restrictions to avoid excessive duplication of presentations.”

CPSC is especially interested in comments on data contained in the petition regarding adverse human health impacts including “reproductive impairment, neurological impacts, endocrine disruption and interference with thyroid hormone action, genotoxicity, cancer and immune disorders.”

Comments should cite docket number CPSC–2015–0022, and can be filed electronically through www.regulations.gov. Just type the docket number into the search engine for all available information.  Written comments can also be submitted by mail or hand delivered to CPSC if addressed to Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814

CPSC notes that all comments must include the agency name and docket number for this proposed rulemaking, and  may be posted “without change, including any personal identifiers, contact information, or other personal information provided” to regulations.gov. It is important, therefore, not to include any sensitive or business confidential information in comments filed with the Commission.   
For additional information, contact Todd Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, MD 20814; 301-504-6833.