The HBO documentary Toxic Hot Seat (2013) — a damning indictment of toxic fire-retardant chemicals in our furniture, environment and bodies (spoiler: It’s California’s fault) — ends on a triumphant note. It’s 2013 and Gov. Jerry Brown is talking, vaguely, about how “every reform needs a reform,” pledging to support regulatory updates that will end the state’s de facto fire-retardant requirement in furniture manufacturing (the original regulation, Technical Bulletin 117, was implemented during his first term in the 1970s).
Pulitzer-winning investigative reporters and the original scientists behind TB 177 handily deflate the chemical industry’s claims that its products are indispensable to fire safety. A firefighter who survived cancer — one of a disproportionate number afflicted from exposure to toxic fumes worsened by burning fire retardants — smiles and rides his bike through a slice of California sunshine. It feels like progress.
But five years later, at a time when more than two-thirds of furniture manufacturers have phased out the chemicals, activists are still struggling to pry the industry’s necrotic grip from the market. Last month, they scored an historic victory when AB 2998 (sponsored by Richard Bloom, D-Santa Monica) passed out of the Assembly with bipartisan support. With some exemptions and compromises (leveraged to tame opposition from the mattress industry), the bill bans the sale of toxic flame-retardant chemicals in furniture, mattresses and juvenile products.
“Getting it through the Legislature is a significant victory,” said Alvaro Casanova, California policy manager at the Center for Environmental Health, a co-sponsor of the bill. “We’re fighting a very wealthy industry that has a demonstrated record of intimidating lawmakers, lying to committees of the Legislature and intimidating furniture stores that wanted to display information.”
That may help answer the question: Why has California, a progressive leader in environmental policy, taken so long to address reform?
Over the past decade, efforts to ban or even restrict or label toxic fire retardants — usually led by indefatigable State Senator Mark Leno (D-San Francisco) — have repeatedly failed. This despite the fact that state and federal governments acknowledge the causal link with a grim raft of afflictions — including cancer, endocrine and thyroid disruption, adverse fetal and child development, and neurological damage. These chemicals marinate our couches, beds and baby products by the pound, not parts-per-million. They easily escape and collect in the dust we breathe. They bio-accumulate, working their way up the food chain, showing up in far-flung ecosystems — and in our breast milk. (That’s just the conservative view, from the National Institutes of Health). Of course, babies are particularly susceptible, and California children have some of the highest exposure levels in the world.
Implemented in 1975, TB 117 came at a time when most Americans smoked and fire deaths were rampant. Under pressure to create self-extinguishing cigarettes, the tobacco industry deflected attention to furniture manufacturers. TB 117 was ground zero for the commercial proliferation of toxic flame retardants, setting a standard that would be adopted nationwide, in the continuing absence of laws to regulate chemicals in consumer products. (The U.S. Consumer Product Safety Commission last year published non-binding recommendations to discourage consumers from buying furniture with organohalogen flame retardants.)
Since TB 117, reformers argue, fire-related deaths have decreased significantly because of other factors such as improved sprinkler systems and self-extinguishing cigarettes. Moreover, research by state and federal bodies has shown that fire retardants, when tested properly for real-world conditions (which include upholstery fabric and fire barriers in addition to just the underlying foam) are ineffective — and, reform advocates argue, unnecessary.
An unprecedented fire season, in which Cal Fire spent a quarter of its annual budget in July alone to fight rampant wildfires, may be an inopportune time to pass legislation that opponents characterize as a threat to fire safety. It also comes when the Trump administration is on a deregulation binge, rolling back environmental and consumer protections.
Casanova attributes AB 2998’s success to a combination of “the science being on the side of public health and safety and a coalition that included firefighters, consumer groups, parents, environmental, public health leaders and courageous lawmakers. And the exposé of the really rotten tactics this industry has used to turn things around.”
Those tactics — including a preposterously shallow industry front group, now disbanded — were exposed in 2013 by a Chicago Tribune investigative series.
Richard Holober, executive director of the Consumer Federation of California, described AB 2998 as the culmination of a decade of incremental gains — including an exemption several years ago for juvenile products (e.g., cribs, nursing pillows, baby mattresses) led by Sen. Leno following a Consumer Product Safety Commission investigation finding zero deaths attributed to fires originating in that product category.
“Getting juvenile products exempted from this legislation that allowed toxic saturation … it was a very huge, hard-fought battle to win that one. It was not conceivable at that time to pass something bigger in scale,” Holober said.
“The industry hired big lobbying firms, created a front group, they scared lawmakers,” Holober said. “At the time, I lived in San Mateo County and my state senator was thinking about voting the right way on the bill, and I got what looked like campaign mail — a picture of a firefighter with a crying infant in his arms racing out of a house. It said, “Your senator is about to make a tragic mistake and children will die, contact him now….’”
AB 2998 proponents say the chemical industry been lobbying hard this time, flying out representatives from D.C., albeit without the same theatrics. The bill passed with bipartisan support (Assembly by 52-12 and the Senate by 29-9). Among Democrats who abstained, representatives offered explanations: Sen. Ben Hueso “would have likely supported the legislation if he had been on the Senate floor at the time the vote was taken”; Rep. Tom Daly “voted for the bill when it first came up for a vote in late May”; and Rep. Susan Eggman voted in favor the first time but happened to miss the vote on concurrence. An inquiry to Rep. Blanca Rubio was not returned.
In response to an inquiry for a phone interview, a spokesperson for the American Chemical Council sent an opposition letter and a statement calling flame retardants an important fire-safety tool that “help save lives, reduce fires and limit property damage,” and that laws like AB 2998 “arguably increase fire risk” and rely on “outdated or inaccurate claims.”
Opponents interrogate the bill for equating the presence of chemicals with harm, offering such a broad definition as to restrict future innovation, and for bypassing existing regulatory frameworks.
“That a product contains a ‘flame-retardant chemical’ does not necessarily mean that the product is harmful to human health or the environment or that there is any violation of existing safety standards or laws. Risks associated with a chemical in a product are dependent upon the potency of the chemical and the magnitude, duration and frequency of exposure to the chemical,” the letter reads.
A rather tepid challenge, even if this were not a state expected to err on the side of caution when considering human and environmental health.
“The thing is, they’ve had 30 to 40 years to innovate a green fire retardant,” Casanova said, responding to the claim that AB 2998’s overly broad prohibitions will kill innovation. “Seventy percent of manufacturers don’t use them already because consumers don’t want them. So we’re just trying to move the rest of the market to a level playing field. … It will be good for business.”
Responding to a request for a phone interview, the California Chamber of Commerce, which joined the chemical industry, toy and mattress manufacturers in opposition to AB 2998, deferred to the American Chemistry Council.
Production won’t cost any more without fire retardants, which will still be used in products such as plastic and circuit boards, Casanova said. “So it’s not like the fire-retardant industry will be obliterated overnight. But in terms of exposing millions of people to these chemicals unnecessarily, that will stop, and that’s a good thing for public health and for business.”
In its opposition letter, the American Chemical Council argues that California legislation should be contingent on the results of ongoing federal studies, including by the CPSC, and that the bill ignores efforts by California’s existing Safer Consumer Products program.
Casanova counters that CPS looks at more narrow product categories (like sofas) and considers alternatives for hazardous chemicals. “There are already alternatives because 75 percent of the market is already not using fire retardants. We know they’re harmful, we don’t need an alternative analysis. Industry will always say we’re sidestepping that program. We’re not.”
The governor’s office did not respond to requests for comment on the pending legislation. Brown has until the end of this month to sign or veto the bill.
If AB 2998 becomes law, proponents are hoping the decision will be a landmark for states’ rights in setting environmental and health policy, and trickle down — much the same as TB 117 did — to other markets across the country.
As burn survivor and activist Andrew McGuire put it in Toxic Hot Seat, “California in a sense has caused the poisoning of the country, and Canada — and maybe the world. We should stop it here.”
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