State legislatures are in full swing across the U.S., and lawmakers are introducing bills on a wide swath of issues from gun control to education. In more than a dozen states, elected officials are proposing to restrict certain controversial chemicals found in consumer items, including a handful of flame retardants and bisphenol A. The introduction of these bills continues a growing trend in recent years of state lawmakers acting to limit or ban certain commercial chemicals.
“States realize that we can’t sit idly by and wait on Congress to protect our children from toxic chemicals,” says James W. Hubbard, a Maryland lawmaker and chairman of the board of the National Caucus of Environmental Legislators. “The threats to public health from inaction are too great to ignore.”
State laws limiting or prohibiting specific chemicals are a bane to manufacturers of targeted substances and national or regional distributors of products made with them. Different approaches to controlling chemicals in various states can create confusion for manufacturers and distributors, says Scott Jensen, a spokesman for the American Chemistry Council (ACC), a chemical industry group. The growing patchwork of state laws sometimes conflict with each other, he says. ACC would rather see a uniform federal system for controlling chemicals, Jensen tells C&EN.
But the number of state statutes is increasing as local lawmakers don’t see action by federal authorities on what their constituents view as unsafe substances.
The root of the matter is that the Environmental Protection Agency has little ability to halt or even dial back established uses of commercial chemicals under the federal Toxic Substances Control Act (TSCA), which is the primary federal law that governs commercial chemicals. This law has been virtually unchanged since Congress passed it in 1976. Environmental and health activists and the chemical industry are calling for modernization of this statute, though they differ over how TSCA should be recast for the 21st century. Congress is divided on how best to update this law and is now focused on concerns with higher political stakes, including the federal fiscal deficit.
“With more studies showing increased exposure to toxic or untested chemicals in our homes, citizens are demanding action at the state level,” says Sarah Doll, national director of Safer States. The group is a network of environmental health coalitions and other organizations that follows chemical control legislation in states. It also provides technical assistance to states on chemical policies.
Chemical makers are tracking state legislation and are testifying at lawmakers’ behest about pending bills, says Jensen. Most states, he says, face serious budget constraints that dissuade legislators from adopting laws—such as chemical bans—that require commitments of resources at financially strapped regulatory agencies.
Nonetheless, state lawmakers are busy introducing bills to restrict a handful of substances used in consumer products.
One category of compounds getting more attention than in the past is flame retardants (C&EN, Oct. 29, 2012, page 27). Legislators in several states are proposing to control or ban specific flame-retardant chemicals. Doll says the increased popularity of these bills in 2013 is in large part due to an investigative series published last year by the Chicago Tribune. Those articles detailed shady lobbying efforts in the past by a group formed by three chemical companies—Albemarle, Chemtura, and ICL Industrial Products—against state legislation to clamp down on a handful of their products. Among actions documented by the newspaper were running attack ads aimed at lawmakers sponsoring bills to control flame retardants and providing a medical doctor to testify against the measures. The doctors told a concocted story about a child dying in a fire as justification for continued use of the compounds.
State lawmakers are responding to this information by introducing more bills on flame retardants this year, Doll says.
Legislators in a number of states are focusing on two chlorinated flame retardants often referred to as tris. One is tris(1,3-dichloro-2-propyl) phosphate (TDCPP), a chemical that was removed from children’s sleepwear in the 1970s because of concerns about mutagenicity. The other is tris(2-chloroethyl) phosphate (TCEP), a chemical under scrutiny by EPA because studies show it is mutagenic and could cause cancer.
A measure introduced in the Maryland General Assembly targets TCEP. It would prohibit the sale of products intended for children less than four years old, such as child carriers, that contain this flame retardant. A bill introduced in Washington state would ban the sale of upholstered furniture designed for residential uses as well as children’s products that contain TDCPP or TCEP. This requirement would also apply to any other flame retardants that state regulators list as “high priority” because of concern over its effects on children. Similarly, the Maine Legislature is considering a bill that would direct state regulators to evaluate TDCPP and consider adding it to the state’s list of chemicals of concern. Vermont and Massachusetts also have legislation pending on tris flame retardants.
Bryan Goodman, a spokesman for ACC’s North American Flame Retardant Alliance, says TDCPP is used in flexible foam in furniture and automobiles. While some products made with TDCPP have had to carry warning labels under California’s Proposition 65 since late last year, most furniture made with TDCPP-treated foam won’t require a label because exposure to the flame retardant is so low, he says. The listing of the chemical under Proposition 65 “has unjustifiably led other legislatures to move on banning TDCPP,” he says.
No member of the alliance currently produces TCEP, although it is often used as a component of flame retardants added to flexible polyurethane foams made in China, Goodman says. TCEP has been listed under Proposition 65 for two decades, and it is a candidate for strict regulation in the European Union.
Meanwhile, the New Jersey Legislature is considering a bill that would ban the sale, manufacture, or lease of products containing the flame retardant decabromodiphenyl ether (decaBDE). If it adopts the measure, New Jersey would become the fifth state to prohibit this substance. However,the makers of the chemical—Albemarle, Chemtura, and ICL Industrial Products—agreed after negotiations with EPA to phase out decaBDE by the end of 2012 for all but essential uses for which there are no alternatives, such as storage bins, seats, and floor panels in aircraft. EPA cites concerns about widespread exposure to polybrominated diphenyl ethers, the family of flame retardants this chemical belongs to, and laboratory experiments linking these substances to thyroid hormone disruption and neurobehavioral effects.
In California, where a new standard for furniture fire safety is being considered (see page 10), lawmakers are considering legislation that would reduce the use of flame retardants in plastic foam used for building insulation. Although flammable, plastic foam is a highly effective insulation and can lower a building’s energy use for heating or cooling.
Under building codes in California, plastic foam insulation has to be protected by a thermal barrier, such as gypsum wallboard, to provide defense against fire. The cost of adding flame-retardant chemicals to insulation, their potential adverse impacts on health and the environment, and the requirement for a thermal barrier call into question whether the flame retardants are really needed for fire safety, says the bill.
One flame retardant used in plastic foam, hexabromocyclododecane (HBCD), has long been added to polystyrene foam insulation to meet fire-safety codes for buildings. But published studies show HBCD is linked to hormone disruption, bioaccumulates, and persists in the environment. Industry is slowly abandoning this substance. In the meantime, countries are expected to decide in May whether to phase out HBCD worldwide under the Stockholm Convention on Persistent Organic Pollutants and whether to exempt the use of the substance in insulation (C&EN, Oct. 29, 2012, page 17).
Another flame retardant added to plastic foam insulation is tris(1-chloro-2-propyl) phosphate. According to the California Biomonitoring Program—a collaborative effort of three departments in two state agencies—the substance, also known as tris(2-chloroisopropyl) phosphate, is structurally similar to three other flame retardants identified as carcinogens either by California or the Consumer Product Safety Commission.
Doll says she expects other bills to restrict specific flame-retardant chemicals will be introduced by lawmakers in other states during the coming months.
In addition to flame retardants, elected officials in a number of states are focused on bisphenol A. This chemical is a known estrogen mimic that is used as a monomer in polycarbonate plastics and epoxy resins that line some food cans. Makers of baby bottles and children’s cups phased out the use of bisphenol A-containing polycarbonate about five years ago in response to consumer demand for items without the substance. At the behest of ACC, the Food & Drug Administration in 2012 formally banned the chemical from baby bottles and sippy cups. But bisphenol A is still used to make epoxy linings in the lids of baby food jars as well as lining for some cans for food, beer, and soda, and some reusable polycarbonate water bottles, Doll points out. FDA last year determined that science does not support a ban on bisphenol A in food packaging.
Several states are considering legislation that focuses on informing consumers about the presence of bisphenol A in containers made with the substance. Legislation introduced in Connecticut and Tennessee would mandate labels on food and drink products packaged in materials made with bisphenol A. A bill in South Dakota would require labeling of food containers made with the chemical.
Lawmakers in other states are considering bans instead of labeling requirements. For instance, a measure pending in New Jersey would prohibit the sale of all food and drink containers made with bisphenol A. Maine, meanwhile, is considering a ban on the chemical in packaging used for baby food and infant formula. The Maine Board of Environmental Protection in January voted unanimously for the ban, which needs the state Legislature’s approval before it can take effect.
Likewise, Arizona, Pennsylvania, and Texas are considering bills that would ban the use of bisphenol A to make infant formula cans or baby food jars. The Pennsylvania and Arizona measures would prohibit the replacement of it with any chemical classified as a carcinogen or a reproductive toxicant by EPA. The Texas legislation would also forbid the sale of children’s products containing any chemical classified as “reasonably anticipated to be a human carcinogen” in the latest “Report on Carcinogens” produced by the National Toxicology Program, a federal interagency program dedicated to testing and evaluating substances in the environment. It would also bar sales of children’s items containing chemicals that EPA identifies as causing birth defects or hormone disruption or harming human reproduction or fetal development.
Hawaii lawmakers too have introduced bills on bisphenol A. One would ban food and drink containers for young children that contain either bisphenol A or phthalates, chemicals used to soften plastic that are endocrine disrupters. It would require makers of these containers to use “the least toxic alternatives” for bisphenol A and phthalates. Another bill before the Hawaii State Legislature would ban the sale of child care products and toys that contain bisphenol A or phthalates. It also would prohibit Hawaii Health Systems Corp., which provides public health care in the state, from buying or using vinyl intravenous solution bags or tubing. These products contain diethylhexyl phthalate.
Meanwhile, the New York State Legislature is considering a ban on the manufacture or sale of receipt paper containing bisphenol A. Yet a study published in 2012 found that people are exposed to higher levels of bisphenol S, a chemical used as a substitute for bisphenol A in thermal paper receipts, than to bisphenol A. Researchers say exposure to bisphenol A substitutes that are bisphenols raise health concerns similar to those associated with bisphenol A.
In addition to bills that would ban specific chemicals in consumer goods, a new legislative trend is emerging in statehouses, Doll says. Lawmakers are increasingly introducing measures that would require safety evaluations of substitutes for banned or otherwise targeted chemicals, she tells C&EN.
These bills would create lists of chemicals of high concern, notably about children’s exposure to them, and would require state regulators to determine which compounds are safer alternatives for substances on the list. Maine already has such a law, Doll points out. Bills to create similar requirements have been introduced in Alaska and New York. Lawmakers in Connecticut, Oregon, and Vermont are expected to introduce corresponding legislation soon, Doll says.
The outcome of these bills and other chemical-related legislation is uncertain. Some bills could well become law because voters are pressing their elected representatives for action. Others may fail to gain lawmakers’ support. But it appears that the trend of state lawmakers frustrated by federal inaction and taking matters into their own hands is likely to increase.