Lawsuit challenges chemical safety regs

California’s ongoing battle over new regulations has an interesting twist: a chemical company is asking a judge to keep in place an older tougher standard that’s been weakened by state regulators.

For nearly four decades, furniture manufacturers have been required to pass an “open-flame” test, which requires furniture be able to withstand 12 seconds of exposure to an open flame. As of January 1, a new regulation approved by the Department of Consumer Affairs, Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation took effect that requires a much-lower threshold of fire safety.

Known within the industry as Technical Bulletin 117, the open-flame test has been in place since 1975 and essentially served as the de facto national standard that “effectively required furniture manufacturers to inject flame-retardant chemicals into all upholstered furniture sold in the state.”

Fire fatalities down since open-flame test

Since the regulation has been in effect, state regulators admit that fire fatalities are down significantly.

“According to existing fire statistics, residential upholstered furniture fires have declined significantly in California and across the nation over the last two decades,” state regulators wrote last year in their “Initial Statement of Reasons” for revising the regulation. “National fire incidents related to upholstered furniture have dropped 80 percent resulting in a significant reduction in consumer deaths.”

Yet, the growing concern over exposure to chemicals has flipped the opinion of regulators, who now say that “flame retardant foam can actually increase smolder propensity.” In its place, the state will require the less strict smolder test, which can be passed without the use of chemical fire retardants.

Chemical company suing to maintain regulation

Enter one of the nation’s leading chemical companies, which says that its products have helped keep consumers safe from house fires. Chemtura Corporation believes that the revised rules impose weaker fire safety standards and diminish the progress in fire safety for upholstered furniture.

“The revised rules require furniture makers to pass only a cigarette ‘smolder test,’ and eliminates a vital requirement — required by the law mandating the Bureau to establish fire safety standards — that all filling material used in upholstered furniture pass an ‘open-flame’ test to replicate a candle, match or lighter flame,” Anne Noonan, Senior Vice President at Chemtura, said in a recent press release. “If left unchallenged, California’s revised, weakened fire safety standard could tragically lead to more fires and more injuries, deaths and property damage nationwide.”

The chemical company points to the relatively common occurrence of open flames causing structure fires. Earlier this year, a house fire in Escondido sent one person to the hospital after “a lit candle burst into flames in the guest home and quickly spread.”

To thwart regulators’ plans, the company has filed a lawsuit to preserve the nearly four decade old rules that govern upholstered furniture flammability.

“Our lawsuit asks the court to overturn the new regulation on the grounds that the Bureau overstepped its statutory authority first, by narrowing the standard to exclude open flame testing requirements and, second, by basing its rationale to change the standard on human health concerns with respect to flame retardants, an area of regulation well outside the jurisdiction and expertise of the Bureau,” Noonan said on behalf of Chemtura in a recent press release.

Public fear of chemicals

The role reversal — with regulators weakening regulations and industry defending tougher standards — is a byproduct of a new emphasis on the chemical industry. Since a blistering series published by the Chicago Tribune in 2012 that detailed the industry’s political tactics, the chemical industry has been a prime target of government regulators. Shortly after the Tribune’s report, Gov. Jerry Brown announced plans for the regulatory overhaul of flame retardants.

“Toxic flame retardants are found in everything from high chairs to couches and a growing body of evidence suggests that these chemicals harm human health and the environment,” Brown said in June 2012. “We must find better ways to meet fire safety standards by reducing and eliminating—wherever possible—dangerous chemicals.”

Despite the growing public fear of chemicals, many toxicologists and medical experts caution against the rush to ban chemicals.

Tom Osimitz, a toxicologist and chair of the scientific advisory committee of the North American Flame Retardant Alliance, defended the important role that chemicals play in fire safety in an interview with PBS NewsHour. He also delivered an important reminder: exposure to a chemical doesn’t inherently cause injury.

“I think if you look at the CDC, the Center for Disease Control, which measures chemicals on a routine basis in blood, they’ll point out quickly too that the mere presence of a chemical does not necessarily lead to you to conclude that there’s an adverse effect, or even that it could eventually cause an adverse effect,” he said. “So one has to be very careful looking at that, generally speaking.”

He added, “There are two or three classic chemicals in the past that may have had some issues, but as everything gets better, and there’s continuous improvement in chemical design — design with reduced toxicity, increased biodegradation. Those are things that have been happening over the last decade.”

For more on California’s obscure regulatory system, check out CalWatchdog.com’s July 2012 investigation into how California’s regulations are being exported overseas.