August 4, 2020
CPSC staff recently announced a series of next steps in what could lead to an eventual regulation concerning certain flame retardant chemicals, specifically those additive, non-polymeric organohalogen flame retardants called OFRs. This CPSC effort would take years and millions of dollars to complete.
The upholstered furniture industry is specifically mentioned in the staff report. The steps set forth by CPSC staff are detailed and, if followed and funded, would still take years of work to see to completion. The 93 page full report is available here (PDF).
Next Actions
The Commission itself will now need to decide whether to adopt these CPSC staff recommendations in its operating plan and Congress will need to decide whether to fund them in the agency’s annual operating budget. This is not guaranteed. The CPSC has requested a recurring $1.5 million from Congress above its standard baseline appropriations request to complete this work. This work would begin, if funded in the CPSC’s 2021 fiscal year, beginning in October 2020.
This particular issue has historically become a partisan issue and one whose result would almost definitely be impacted by the pending nomination of Nancy Beck to serve as Chair of the CPSC. A toxicologist herself, Ms. Beck has faced intense criticism for her work at the American Chemistry Council (ACC) and the EPA on, among other chemicals, flame retardants, where she has been viewed as an in favor of the use of such chemicals and has been seen by some as working on behalf of the chemical manufacturers. Facing intense questioning on these topics in her recent nomination hearing, two Republican Senators have already announced they will not support her nomination, which is seen as troubled. The Commission is currently split 2 – 2 between Democrats and Republicans, with an Acting Democratic Chairman.
This proposed rulemaking – to regulate classes of OFRs – is particularly controversial because no federal government agency has ever regulated a group of chemicals together, by class. Instead, regulations, such as Toxic Substances Control Act (TSCA) and the Federal Hazardous Substances Act (FHSA), have limited chemicals individually, resulting in what critics have called a “whack a mole” approach, because chemical manufacturers can simply substitute or slightly change the molecular structure, thereby avoiding the federal regulation. More history is available below.
Process
In order to be science-based and withstand scrutiny, these sorts of federal efforts historically take a long time. CPSC staff propose to first use contractors, CPSC staff, and interagency agreements to create analyses of various classes of OFRs, which they will then use as they prioritize classes to begin hazard and exposure assessment tasks. They will then place their work out for public comment while complete hazard identification and exposure assessment work in parallel. Each class-specific risk assessment draft will be peer reviewed. Staff will then make recommendations on whether to proceed with class-based risk assessment after each class-specific scope document is completed. Ultimately, staff will recommend whether to proceed with rulemaking after each class-specific risk assessment is completed. If necessary, staff may recommend returning to outside experts, a so-called Chronic Hazard Advisory Panel (CHAP). Each step in this process will take months and some may take years.
History
In September 2017, the U.S. Consumer Product Safety Commission itself (not the staff) voted to initiate rulemaking on “classes” of certain flame retardants, specifically the OFRs. They specifically noted their health concerns with various product areas, including upholstered furniture sold for use in residences. Since that time, the National Academy of Sciences, Engineering, and Medicine (NASEM) published its initial report in partnership with the CPSC, scoping out the issue, in “A Class Approach to Hazard Assessment of Organohalogen Flame Retardants,” in May 2019. The Committee identified an inventory of 161 different OFRs, and identified more than 1,000 analogue chemicals. Ultimately, they grouped those into 14 subclasses of OFRs, based on chemical structure, physicochemical properties of the chemicals, and predicted biologic activity
The Commission also directed staff to publish a guidance document on OFRs. That non-binding guidance document Commission Guidance Document on Hazardous Additive, Non-polymeric Organohalogen Flame Retardants in Certain Consumer Products was published in the Federal Register on September 28, 2017 (82 Fed. Reg. 45268).
These efforts were undertaken while there was still a Democratically-controlled Commission. Now that the Commission is more evenly split, there is uncertainty around the funding and length of these efforts. UFAC will continue to monitor this closely and keep you posted. Should you have any questions or comments, please reach out to us at info@ufac.org.
