Reducing cancer and noncancer risks from flame retardants (a broad category of chemicals) has become a priority, to one degree or another, of the Environmental Protection Agency (EPA), the European Union's (EU), the State of California ( California's Proposed Green Chemistry Rule — Sometimes The Best Of Intentions Are Not Enough), and other regulatory programs,  but it has proven and will continue to prove to be a difficult task balancing that goal with the goal of minimizing risks from fires. 

The purpose of a flame retardant is to reduce the risk of injury or even death from a fire.  The Consumer Product Safety Commission (CPSC) staff concluded  that adopting a small, open flame performance standard for upholstered furniture could effectively reduce the risk of death, injury, and property loss resulting from small flame ignitions and is considering a testing standard (CPSC, Flame Retardant Chemicals That May Be Suitable for Upholstered Furniture 63 Fed. Reg. 13,017 (March 17, 1998)).  California and other local jurisdictions already mandate flame retardant testing.

In addition to the EPA and EU regulatory actions against flame retardants, other drivers are in play:  one private California Proposition 65 enforcer alone has filed over 50 enforcement notices involving 19 products seeking penalties and labeling of products containing flame retardants.  Many private sector sustainability programs emphasize reducing the use of toxic chemicals in products, including flame retardants.

These conflicting (or at least not entirely harmonized) initiatives place companies in a difficult position.  As the Furniture Flame Retardancy Partnership (an EPA and furniture industry partnership) noted in its 2012 draft alternatives assessment for decabromodiphenyl (a flame retardant) "[s]witching to an alternative chemical is a complex decision that requires balancing all of" a variety of hazard characterization factors, performance, economic, and social considerations "as they apply to a particular company's cost and performance requirements."

Decisions regarding flame retardant use are indeed complex.  For example, the 2012 draft report (cited above) screened ten separate human health hazards, aquatic hazards, and the environmental fate (bioaccumulation and persistence) of thirty-five alternative flame retardants, each alternative has different relative merits for each screening criteria used and thus different tradeoffs.  The product using the alternative flame retardant must meet flammability standards (including the associated rigidity, compression strength, weight requirements), which is not necessarily easy.  Id.  The report also articulated the uncertainties and the inevitable tradeoffs and recognized that economic factors are best addressed by decision-makers within the manufacturing company since cost estimations "must be company-specific" and the "impact of substituting chemicals on complex product formulations can only be analyzed in-house."  Id.

Further complications arise because alternatives with similar physical and chemical properties (which could be used without significant modifications to the product and production processes) often "are likely to have similar hazard and exposure profiles."  Id.  The 2012 Furniture Flame Retardancy Partnership contemplates the alternative selection being made by the manufacturer, however, increasingly regulators (particularly pursuant to the California Safer Consumer Products draft regulation and EPA's new Toxic Substance Control Act chemical action plans) or even retailers may seek to second guess the private sector product design decisions, even where there is no significant regulatory risk from the existing flame retardant being used.

The impact of these regulatory developments goes beyond chemical manufacturers and reaches importers, as well as retailers of all sizes, although each entity may have a different interest.  Given the ubiquitous use of flame retardants, it may be prudent for potentially impacted companies (alone or in combination with similarly situated companies or their trade associations) to:

  • Determine if flame retardants are in the products that they manufacture, import, distribute, sell or purchase and, if so, whether the specific flame retardant chemical is currently regulated or scheduled to be regulated;
  • Determine whether there is an existing reliable evaluation of the relevant tradeoffs involving the chemicals in the product, such as discussed above.  However, an evaluation of flame retardants used in, for example, furniture may not be directly applicable to other products (although it may provide some useful data).  Therefore a company (alone or in conjunction with other companies) may decide to have a substitution evaluation produced.  Obviously, competitive issues arise in any joint effort.
  • Make a company- and product-specific decision on the appropriate balancing of all the hazard, performance, economic, and social factors.  A company may decide that, given all relevant circumstances, it should take early action to find a substitute or to engage in the regulatory process (e.g.,  a company's sustainability program may drive such a review).  Such an evaluation should include consideration of whether there are litigation risks or regulatory transaction costs that could be avoided by early action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.