Three Questions for Advocates of the Latest Ban on Flame-Retardants

February 5, 2013

Tomorrow, the House Environment Committee will consider HB 1294, the latest ban on flame-retardant compounds. The bill would ban a compound called Tris and would give the Department of Ecology the authority to ban future flame-retardants "unless a manufacturer demonstrates that there is not a technically feasible safer alternative to the flame retardant."

This legislation is the consequence of the legislature's decision to ban the previous flame-retardant known as PBDE. Once that compound was banned, companies looked for an alternative to meet the state's requirements for flame resistance. The environmental community now claims Tris is even more toxic than PBDEs.

Legislators looking to avoid a repeat of these consequences should ask three questions of advocates of the latest ban.

1. What will replace Tris? When the Department of Ecology advocated the ban on PBDEs, the agency's lobbyist, Ted Sturdevant, was asked what would replace them. He told the committee that he didn't know, but Maine and others were identifying possible replacements. Unfortunately, neither Ecology nor anyone else identified a replacement. As a result, manufacturers looking to comply with state law on flame resistance turned to Tris. When the legislature considered banning Tris last year, Sturdevant testified again, saying the failure to consider "whether or not a safer alternative is available hasn't even been a relevant question and I think that is crazy." Legislators should ask this important question.

2. How will the state assess alternatives? The legislation also includes authority for Ecology to ban future flame-retardant compounds, requiring manufacturers to prove there is no suitable alternative. This, however, codifies exactly the "toxic treadmill" the environmentalists claim to oppose, by telling manufacturers what they cannot use, but not what they can. Further, Ecology's record on identifying potential alternatives is quite poor. When Ecology examined potential alternatives to PBDEs, they identified 14 options. Interestingly, Tris wasn't even on the list. Even if Ecology is empowered to tell manufacturers what to avoid, Ecology is likely to encourage a repeat of the situation where current compounds are replaced with lesser-known compounds that have unknown impacts.

3. Who will be liable if the new ban increases impacts? If manufacturers are forced to switch from relatively low-impact compounds to unknown compounds with higher risks, as occurred with the switch from PBDEs to Tris, who is liable? Are the manufacturers held liable for the increased risks due to complying with the law? This is the problem with banning compounds that turn out to be safer than the alternatives. There is no going back. Even if we find that PBDEs are better than any of the alternatives, the legislature cannot unring the bell. Manufacturers have moved on. Indeed, by failing to identify "safer" alternatives, Ecology essentially admits that replacements are either more dangerous or, because they are lesser understood, may have higher risks.

The environmental community may respond than any alternative would be safer than Tris. That, of course, is what they assumed about banning PBDEs and they now claim Tris is worse. There is no reason to believe the next replacement won't repeat that error.

It is unclear whether Tris is as toxic as claimed. Other such claims, like claims about the vaccine preservative thimerosal, have proven to be false. Legislators can, however, ask some key questions in an effort to avoid making the same mistakes we made last time.