On September 20, 2017, the U.S. Consumer Product Safety Commission (“CPSC” or the “Commission”) voted to adopt a rulemaking process that will effectively ban an entire class of chemicals – non-polymeric organohalogen flame retardants (“OFRs”) – from certain consumer products.
In 2015, several NGOs (including, among others, the American Academy of Pediatrics, American Medical Women’s Association, International Association of Fire Fighters, and League of United Latin American Citizens) filed a petition for rulemaking requesting the Commission to initiate rulemaking to declare four categories of consumer products containing additive OFRs to be banned hazardous substances under the Federal Hazardous Substances Act (“FHSA”). The NGOs argued that the OFRs should be banned from four types of products as the additives could be harmful to consumers: (1) durable infant or toddler products, children’s toys, child care articles or other children’s products other than car seats; (2) upholstered furniture sold for use in residences; (3) mattresses and mattress pads; and (4) plastic casings surrounding electronics.
Despite a May 24, 2017 CPSC staff recommendation to deny the ban as overly broad, three Democratic-appointed commissioners voted in favor of the petition while the two Republic-appointed commissioners voted against it. The Commission has directed staff to convene a Chronic Hazard Advisory panel pursuant to the Consumer Product Safety Act to assess and issue a report on the risks to consumers’ health and safety from the use of OFRs as a class of chemicals for the four types of products. The staff will review data to assess the toxicity of and exposure to this class of chemicals.
Under the FHSA, the Commission has the authority to address products containing OFRs on a class-wide basis. In order to determine that OFRs as a class constitute a “hazardous substance” under the FHSA, the Commission only needs to determine that OFRs are toxic – that they have the capacity to produce injury or illness through ingestion, inhalation, or absorption through any bodily surface, and may cause substantial illness during or as proximate result of any customary or reasonably foreseeable handling or use of those products.
The report and guidance, however, is not a binding or enforceable rule. Furthermore, the adoption of the petition is simply the first step and the ban has not commenced. The advisory panel still needs to gather data and draft proposed regulations. A notice and comment period will then follow before the final rule is passed. And in yet another obstacle to the process, the Trump administration has recently nominated Dana Baiocco to replace the current CPSC Commissioner appointed by the Obama administration. The replacement has shifted the balance of the Commission to a Republican majority and the adopted petition will most likely face even more challenges in moving forward.