On Monday, the Consumer Product Safety Commission will close the comment period for a proposed rule related to chemicals used to make soft and pliable plastics. While they claim to do this in the name of children’s health, it’s not clear that the rule will do more good than harm.
The process and the “scientific” review that brings us to this proposed rule has been controversial, to say the least. I detail some of those issues in comments that I will submit on Monday and will post some of that here on Monday as well.
Unfortunately, not enough attention has focused on the fact that the agency-commissioned study—referred to as the Chronic Hazard Advisory Panel (CHAP) report—failed to fully consider the potential implications of substitute products that will replace those they ban.
Before initiating a rulemaking that may remove chemical technologies from the marketplace that have been safely used for decades, CPSC should consider whether replacement products pose greater risks. The CHAP allegedly addresses replacement products by reviewing data on the potential environmental health effects of other chemical substitutes. But the CHAP did not address whether or not the substitutes that might actually win a place in the market would affect product performance in ways that help or harm public health and safety.
The rule should ensure net safety, considering all factors. It is incumbent that regulators don’t inadvertently increase risks with short-sighted decisions. Based on the CHAP, we lack reasonable assurance that regulatory action will increase net safety and, in fact, such actions might accidentally introduce new hazards and even greater public health and safety risks.
Still, some people argue that we should at least seek substitutes to “be on the safe side,” employing a precautionary approach. They forget that every product on the market prevailed because it is the best to perform the job at an acceptable price. Politically driven substitutes by definition will always be inferior. Unnecessary regulations and product substitutions also reduce consumer choice by eliminating safe and effective products. In some cases, many valued brands and products completely disappear. Such policies waste investment, discourage innovation, and divert resources from useful enterprises into production of second- best substitutes.
In the case of children’s toys, CPSC did not consider whether product failures associated with substitute products might increase risks for children. For example, journalist Jon Entine points out that substitute products might increase choking hazards. He notes:
The forced conversion to non-phthalates would force reformulation to products that will cost more or offer poorer performance or both,” professor Godwin [Allen Godwin, chemist with Texas A&M] told me. “The poorer performance could mean reduced product lives. They won’t last as long. Because the substituted additives are more volatile, as the plasticized PVC product ages, it becomes brittle. If this were a childcare article or toy, it could potentially become a choking hazard. If it’s made from organic materials, it could develop an unpleasant oily finish and odor.
The CPSC does not consider the potential for adverse “spill-over” effects of their rule. When one use of a product is regulated, the product may lose market share for other uses because such regulations often create misperceptions about risk. In this case, phthalates still have valuable uses for electric wiring and have an excellent safety record. Entine points out that if wire manufacturers respond to hype about phthalates, replacement products could prove dangerous. “The new products could also be more hazardous,” Entine quotes Godwin explaining. “For example some alternatives are more volatile than the higher molecular weight phthalates.”
A similar example already exists for the phthalate DEHP, which Congress banned in amounts more than 0.1 percent in toys. While it is not banned in medical applications, hype about DEHP risks has led the medical community to seek alternatives for such vital products as blood bags. This is occurring despite the fact that the chemical is very valuable in medical applications, and risks are very minute from such exposures. As researchers in one journal article note: “For RBCs [red blood cells], however, there are few convincing alternatives offering RBC the same protecting qualities of DEHP and allowing their long-term storage with equal qualities.” The sad reality is that our blood supply can be placed in jeopardy because of misinformation and hype about the risks of these valuable chemicals. Regulators should not contribute to such alarmism by acting on weak science and unsubstantiated claims about risk.
Forced product reformulations for the children’s products regulated under the rule, along with resulting market deselection of other products, threatens to undermine public health, innovation in the marketplace, and economic wellbeing. Accordingly, the CPSC should not impose any regulations in addition to those already mandated under the Consumer Product Safety Improvement Act of 2008 (CPSIA) because such regulations are likely to do more harm than good.