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CPSC Staff Recommends Rejecting Organohalogen Petition

In 2015, a group of non-government organizations (NGOs) filed a petition with the U.S. Consumer Product Safety Commission (CPSC), asking CPSC to categorically ban additive organohalogen flame retardants (OFRs) from the market in the U.S. in many significant consumer product categories. OFRs include a very broad set of diverse chemical compounds added to consumer products to retard the spread of flames, often to comply with regulatory requirements or voluntary safety standards. OFRs have been used in a large variety of consumer and household products available in the U.S. and other countries over the years.

The petitioners sought to prohibit the use of OFRs in children’s products, furniture, mattresses, and electronics casings. They claim that OFRs as a class are toxic, leading to widespread human exposure, and present a serious public health concern. Their claims were challenged by a number of groups, some of whom argued that the individual chemicals within the broad class of “organohalogens” described by petitioners were too distinct to treat as a class. Additionally, opponents asserted that the petition failed to establish that OFRs as a class pose a hazard based on the criteria the Commission must consider under the FHSA.

After nearly two years, CPSC staff submitted a 537-page briefing package to the Commission describing staff’s conclusion that insufficient evidence supported the petitioners’ claims. Accordingly, CPSC staff recommended that the Commission reject the petition for lack of evidence, as required under the Federal Hazardous Substances Act (FHSA). Chief among the reasons staff cited were:

  • The data on the hazards of OFR toxicity is insufficient “to conclude that all products defined by the petitioners with OFRs are hazardous substances under the FHSA.” Further, data indicates “that not all chemicals in this class have the same toxicity under the FHSA or the same exposure potential.”
  • The mere presence of OFRs in household dust does not establish a link to the four product categories in the petition.
  • The FHSA requires consideration of the connection between the toxicity of a substance, exposure to that substance through customary and reasonably foreseeable use of a product, and resulting substantial personal injury or substantial illness associated with the exposure. Given the varying properties of OFRs and lack of a connection between OFR measurements in environmental media and use in products in the petition, the petition does not support a conclusion that products containing any OFR are all hazardous substances under the FHSA.

The recommendations conclude with a statement that staff will continue to monitor flame retardants in children’s products and mattresses, and will work closely with voluntary standard setting organizations as well as with EPA “to coordinate activities on FR chemicals, including OFRs.”

A briefing package of this magnitude not only requires time for Commissioners and their personal staffs to review, but is often decided in an open hearing. Given the summer holidays, it will likely take several months before a decisional meeting is scheduled.

© 2017 Keller and Heckman LLP


About this Author

Sheila Millar, Keller Heckman, advertising lawyer, privacy attorney

Sheila A. Millar counsels corporate and association clients on advertising, privacy, product safety, and other public policy and regulatory compliance issues.

Ms. Millar advises clients on an array of advertising and marketing issues.  She represents clients in legislative, rulemaking and self-regulatory actions, advises on claims, and assists in developing and evaluating substantiation for claims. She also has extensive experience in privacy, data security and cybersecurity matters.  She helps clients develop website and app privacy policies,...

Nathan Cardon, Keller Heckman, product safety attorney, labor lawyer, consumer protection law, cybersecurity matters

Nathan Cardon joined Keller and Heckman in 2013.  Mr. Cardon practices in the areas of product safety, privacy, and advertising.

In his product safety practice, Mr. Cardon counsels clients on risk management and product safety strategies, as well as on compliance with Consumer Product Safety Commission (CPSC) requirements, including new requirements under the Consumer Product Safety Improvement Act of 2008 (CPSIA). 

In the privacy and advertising practice, Mr. Cardon is involved in a wide variety of privacy, data security, and other consumer protection matters.  This includes compliance with laws and regulations governing children's privacy, marketing to children, mobile apps, commercial email messages, online behavioral advertising (OBA), contests and sweepstakes, endorsements and testimonials, data breach notification, and cybersecurity.