Last Chance for the 115th: Common-Sense Guidance on Regulating Flame Retardants


This June here at OpenMarket we’ll be looking at what the 115th Congress, which began January 3, 2017 and runs through January 3, 2019, has accomplished so far and what might still be achieved for limited government and free markets before it’s over. Read more about the Competitive Enterprise Institute’s recommendations for legislative reform here

In “Free to Prosper: A Pro-Growth Agenda for the 115th Congress,” CEI recommended that Congress hold oversight hearings regarding the Consumer Product Safety Commission (CPSC), specifically the Commission’s consideration of an activist petition calling on the agency to ban an entire class of flame retardants. We had already pointed out in a study why banning an entire class of chemicals is contrary to sound science and common sense—and is potentially dangerous, because it contributes to fire risks. The CPSC voted to proceed with the rulemaking last October, but opportunities remain for Congress to provide oversight or to help reverse the decision by approving pending nominations of CPSC commissioners.

First, some background: this issue started in July 2015, when a coalition of environmental activist groups petitioned the Consumer Product Safety Commission to ban the use of all organohalogen flame-retardant products in upholstered furniture sold for home use, in mattresses and mattress pads, and in the plastic casing of all electronic devices. The CPSC has received comments and held hearings. It is now deliberating on whether such a ban is necessary.

The petitioners claim that trace exposures to these chemicals pose health risks and that products that contain them provide no benefits. Both claims fall apart under scrutiny. The evidence is scant that human exposures to organohalogens in consumer products poses a significant public health risk, whereas fire risks are real, verifiable, and substantial. Moreover, because not all organohalogens are the same, banning that entire class of chemicals makes no scientific sense.

Banning even a limited number of uses for an entire category of flame-retardant chemicals is not only unwarranted, but will eliminate currently valuable uses and future market developments. The regrettable result could be an unnecessary and preventable loss of life from fires that spread faster in the absence of these products.

Last October, the CPSC’s five commissioners voted to proceed with a rulemaking, the final result of which remains unknown. They also charged the CPSC staff with producing a study, known as a Chronic Hazard Advisory Panel (CHAP), of the issue to aid in the decision-making process.

Congress should:

  • Confirm Anne Marie Buerkle as the Chairman of the the CPSC. Buerkle has been acting chairman for nearly a year, as the Senate has failed to bring her nomination to a vote. Buerkle, a former member of Congress from New York, is well qualified for the job and has a proven track record of faithfully serving the Commission.
  • Advance and approve the nomination of Peter Feldman to take the Commissioner seat left open when Joe Mohorovic left the agency last October. Feldman’s work on the Senate Commerce Committee with a focus on consumer product liability well prepares him for work at the CPSC.
  • Unless the commissioners vote to reverse their decision to proceed with a rulemaking, Congress should hold oversight hearings to ensure that the CPSC staff rely on the “best available, peer-reviewed science” for conducting the CHAP. The findings of that study may prove crucial to whether these chemicals are banned and Congress should ensure that it meets rigorous scientific standards

Read previous posts in the “Last Chance for the 115th” series: