In a split across party lines, the U.S. Consumer Product Safety Commission (CPSC or the “Commission”) recently voted on a largely unprecedented course of action: to ban an entire class of chemicals from popular consumer products. Specifically, CPSC adopted a petition for rulemaking that sought to prohibit a highly popular flame retardant from certain consumer products. Although this decision is noteworthy because of its potential reach, it is still possible that the vote could end up having no impact on manufacturers once the political balance on the Commission shifts under President Trump.
The origins of this vote go back to 2015, when a group of ten non-governmental organizations (NGOs) filed a petition for rulemaking with CPSC. In their petition, the NGOs argued that non-polymeric organohalogen flame retardants should be banned from four categories of consumer products—children’s products, mattresses, electronic casings, and furniture—because the flame retardants migrate from those products and put consumers at risk of harm.
Concern about flame retardants in consumer products is not new. Virtually every major constituent—i.e., the federal government, state governments, and manufacturers—has voiced an opinion about it in the past. For example, CPSC banned a class of flame retardants from children’s clothing in 1977; California began requiring labels on upholstered furniture in 2014 if the product included a flame retardant; and the nation’s largest furniture manufacturer stopped adding flame retardants to its foam cushions in 2015. This petition nonetheless remains rare because of its application to an entire class of chemicals rather than specific chemicals shown to have particular risks of harm.
Indeed, CPSC staff issued a brief on May 24, 2017, recommending that the Commission deny the petition because of its breadth. Based on the research that was available, the staff wrote that organohalogen flame retardants demonstrated varying degrees of toxicity and exposure potential. Therefore, the staff found that “under the [Federal Hazardous Substances Act] . . . one cannot conclude that all products in the four categories containing any [organohalogen flame retardants] are ‘hazardous substances.’”
Despite the staff’s recommendation, CPSC voted on September 20, 2017 to adopt and begin the rulemaking process described in the petition. The vote was strictly along party lines: the three Democratic-appointed commissioners voted in favor of the petition while the two Republican-appointed commissioners voted against the petition. In addition, the same Democratic majority voted to issue a sweeping guidance letter directed towards manufacturers, importers, distributors, retailers, and consumers. The message was very clear: one should not use, make, or sell children’s products, furniture, mattresses, or electronic casings with organohalogen flame retardants during the pendency of the rulemaking process. And “consumers, especially those who are pregnant or with young children, [should] inquire and obtain assurances from retailers that such products do not contain” organohalogen flame retardants.
Although the guidance letter is broad and forceful, it is not a binding or enforceable rule. Nor does CPSC’s vote on the petition mean that the ban has taken place or necessarily will take place. Rather, an advisory panel will begin to gather data and draft proposed regulations, and any final rule would need to pass through the customary notice and comment period. In addition to those customary procedural hurdles, this particular rule’s fate faces a stern test from the political arena.
As we wrote last week, President Trump has nominated Dana Baiocco to replace current CPSC Commissioner Marietta Robinson, who had been appointed by President Obama. If Ms. Baiocco is confirmed, the makeup of the CPSC will shift from Democratic majority to Republican, making promulgation of the proposed rule unlikely given the breakdown of the vote. Accordingly, this episode likely represents a last stand by the Democratic-appointed commissioners in the face of change, rather than a signal that this class of flame retardants will be banned in the near future.