Flame retardants are used in countless products to prevent or delay  ignition of a fire and slow or end the combustion process. Many  of these products, which include building materials, furniture and  electronics, are "consumer products" regulated by the Consumer  Product Safety Commission (CPSC).

Numerous government entities in the United States have been  studying the use and safety of flame retardants and the potential for  bans or regulations of flame retardants is a significant possibility.  Accordingly, it is important for manufacturers to be aware of  developments at both the federal and state level that could affect  the use of flame retardants in their products.

One size fits all?

The confirmation of Alexander Hoehn-Saric as chairman of the  Consumer Product Safety CPSC on October 7, 2021, is significant  as it marks the first time in more than four years that the CPSC  has had a permanent chairman. Prior to Chairman Hoehn-Saric's  confirmation, the Commission was briefly comprised of two  Republican commissioners and only one Democrat.

That unusual ratio allowed Republican Commissioners Dana  Baiocco and Peter Feldman to amend the Commission's FY22  Operating Plan1 by a 2-1 vote over the opposition of then-Acting  (Democratic) Chairman Robert Adler.

The potential for bans or  regulations of flame retardants  is a significant possibility.

Of the of several dozen amendments to the Operating Plan, one  pertained to the CPSC study of organohalogen flame retardants  (OFRs) and replaced the word "classes" with "subclasses"  throughout the relevant paragraph. A closer look at the emphasis  on "subclasses" gives us a perspective on the state of affairs — and  the prospect of regulation — for this particular group of chemical  substances.

In 2017, the CPSC granted a petition submitted by several  organizations and individuals to ban the use of all additive, non-polymeric OFRs in durable infant or toddler products, children's  toys, child care articles, or other children's products; residential  upholstered furniture; mattresses and mattress pads; and the  plastic casings of electronic devices.

The CPSC directed staff, in cooperation with the National Academy  of Sciences, Engineering, and Medicine (NASEM) to develop a  scientifically based scoping plan to identify the potential health  hazards associated with additive, nonpolymeric OFRs as a class.  In May 2019, NASEM issued its report,2  with the main finding being  that OFRs cannot be treated as a single class. NASEM identified  14 subclasses of OFRs based on chemical structure, physicochemical  properties of the chemicals, and predicted biologic activity.

There continues to be a push,  from advocacy groups and at the state  level, to regulate all OFRs  as a single class.

Based on the NASEM findings, the CPSC staff developed proposals  for methods to collect and analyze data and other information to  perform risk assessment. Last year, staff began to implement the  NASEM plan to assess the potential risks of the OFR classes.

According to the CPSC's FY 2022 Operating Plan,3  CPSC staff  contemplates that it will complete a literature screening on the  14 OFR subclasses, begin drafting scope documents, and begin  work on an exposure assessment in 2022. Any potential regulation  that would affect how OFRs could be used in consumer products  could follow the completion of this risk assessment.

A multi-agency approach

CPSC activity on OFRs had a cross-agency impact; it was the stated  impetus for an EPA rule that took effect earlier this year. Under  the TSCA Health and Safety Data Reporting rule4  manufacturers  (including importers) of 30 specific OFRs are required to submit  unpublished health and safety studies. The deadline for compliance  was originally September 27, 2021 but has been extended to  January 25, 2022. Failure to comply is a violation of the Toxic  Substances Control Act (TSCA).

EPA stated that it intends to use the gathered information not  only to aid the CPSC in its efforts to evaluate the 14 subclasses of  OFRs, but also to inform TSCA-related activities such as future  prioritization efforts and new chemical reviews.

Flame retardants are clearly the center  of government attention, and specifically  their use in electronics and  electronic casings.

However, despite the pronouncement from NASEM that all OFRs  cannot be treated as a single class and the CPSC adoption of a  subclass approach, there continues to be a push, from advocacy  groups and at the state level, to regulate all OFRs as a single class.

State activity

While the CPSC and the EPA, for the time being, are focused on  studying specific chemistries or subclasses of flame retardants,  some states have opted to take a one-size-fits all approach,  regardless of NASEM's findings.

Earlier this year, the New York State Legislature passed S4630B/ A5418B,5  The Family and Fire Fighter Protection Act. The legislation  prohibits the sale of any new upholstered furniture or mattress  containing any flame-retardant chemical. Additionally, the bill  prohibits the sale of any electronic display containing any OFR  chemical in its enclosure or stand and requires annual reporting of  any replacement flame retardants used in electronic displays. To  date, the bill has not yet been signed by Governor Kathy Hochul.

The State of Washington is currently contemplating regulating  flame retardants in specific products. The Pollution Prevention for  Healthy People and Puget Sound Act6  was enacted with a stated  goal to reduce the use of toxic chemicals in products by restricting  or eliminating those toxics when safer alternatives are available. The  Washington State program that implements the law is called "Safer  Products for Washington."

Under the program, the Washington Department of Ecology is  required to identify priority consumer products that are significant  sources of the priority chemical classes. Flame retardants are  considered priority chemicals, and recreational polyurethane  foam and electronic enclosures containing flame retardants were  identified as priority products for further research and potential  regulation. Washington currently plans to report its determinations  concerning where regulatory action is needed to the legislature by  June 2022, with the adoption of rules to be implemented by June  2023.

Flame retardants are clearly the center of government attention,  and specifically their use in electronics and electronic casings.  Companies that manufacture, import or sell consumer products in  the U.S. that utilize flame retardants, and particularly electronics,  will need to closely follow federal and state OFR activity so that they  have an opportunity to engage with the appropriate agencies as  well as prepare for any new regulatory requirements.


1 https://bit.ly/3qD9iG8 

2 https://bit.ly/3Hh5joy 

3 https://bit.ly/3cfBvdS 

4 https://bit.ly/3ChQ1wb 

5 https://bit.ly/3ChKC8u 

6 https://bit.ly/3qzlYOm 

This article was published on Westlaw Today on November 17, 2021.

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.