A federal agency in the United States took action last month to ban an entire class of toxic flame retardants from being added to a wide variety of consumer products, from baby toys to televisions. It’s a first for the U.S. — and it could be done in Canada too.
In its review of the science, the U.S. Consumer Product Safety Commission found there was “overwhelming” evidence that halogenated flame retardants, also known as organohalogens, present a “serious public health issue.” As a result, these flame retardants will be prohibited in all children’s products and toys (but not car seats), upholstered residential furniture, mattresses and the plastic casings on electronics.
Notably, and appropriately, the commission also found that “precautionary labelling” would not provide adequate protection against the potential hazards. Instead of merely warning consumers, the commission opted to prohibit the presence of these chemicals in consumer products.
These flame retardants pose serious health risks, particularly to vulnerable populations. They migrate easily out of consumer products, regardless of how they are used, and accumulate in people.
Flame retardants have been linked to hormonal disruption, including lower sperm counts and infertility, neurological impacts, cancer, immune disorders and other health effects. They are known endocrine disruptors that can have significant impacts on health, even at very low doses, especially during fetal development, puberty and pregnancy.
In Canada, polybrominated diphenyl ethers, or PBDEs, have been detected in the breast milk of almost all women tested. These results are worrying given that even though PBDEs have been banned internationally under the Stockholm Convention, they are built into many long-lasting consumer products and furniture in our homes, schools and workplaces. Computers, couches, mattresses and carpets will continue to expose us to PBDEs for years to come.
And yet, Canadian regulators are all over the map with respect to flame retardants. On PBDEs, Canada infamously refused to take meaningful regulatory action. The government found most PBDEs to be toxic substances in 2006, but it declined to ban or restrict them in consumer products in 2008 or in 2016.
Conversely, Canada took strong (albeit much belated) regulatory action on the flame retardant hexabromocyclododecane (HBCD) in 2016, banning it in all consumer and industrial products with minor, time-limited exemptions.
Currently, Canada is completing a risk assessment for a grouping of 10 halogenated flame retardants. These regrettable substitutes are being used by industry as replacements for PDBEs and other controlled chemicals, but contain the same worrisome chemical structures.
In a haphazard and incomplete draft assessment in 2016, Canada proposed to declare only some of these flame retardants toxic, shielding the rest from regulation. Thus, Canada’s proposed regulatory approach for this large group of flame retardants is significantly at odds with the new U.S. approach, where almost all of these 10 flame retardants will be banned.
Canada could take a more coherent, precautionary path on flame retardants under current law. It could follow the U.S. lead and ban toxic flame retardants in entire classes of consumer products.
Our legal research shows the federal government could act in one of two ways. (In the future, there may also be a third option.)
The first option is for the federal government to simply ban classes of products containing halogenated flame retardants under the Canada Consumer Product Safety Act (CCPSA), a similar approach to that taken in the U.S.
Canada has done this before, when it banned products made of polyurethane foam containing tris (2-chloroethyl) phosphate (TCEP) that were intended for children younger than three. Likewise, existing CCPSA regulations limit – but do not ban – the use of flame retardants in some products such as children’s pyjamas.
One drawback to this option is that the aim of CCPSA is only to protect human health and safety. The act is not meant to protect ecosystems or wildlife like killer whales and belugas whose survival is also jeopardized by the flame retardants that enter waterways and bioaccumulate in the food web. Still, keeping toxic consumer goods off shelves stops new sources of exposure, and has clear benefits for humans and wildlife.
The second option is for the federal government to ban consumer products containing toxic flame retardants under the Canadian Environmental Protection Act (CEPA). The government typically implements this law on a chemical-by-chemical basis, but CEPA does allow broader approaches. For example, the government has the ability to ban or regulate toxic substances in any product, and it has done so, with exceptions, for PCBs. However, for Canada to ban a class of chemicals under CEPA, each chemical must first go through a lengthy toxicity assessment, which would take years to complete.
There is, however, a solution. Catherine McKenna, the minister of environment and climate change, could make an “interim order” to ban halogenated flame retardants in consumer products before finding each substance to be toxic, provided that she and the health minister “believe that immediate action is required to deal with a significant danger to the environment or to human life or health.”
If cabinet approved an interim order, it could stay in effect for two years. This would allow time for individual flame retardants to be declared toxic.
It would also allow Canada to review the findings of the Chronic Hazard Advisory Panel, which the U.S. Commission is convening to further study the effects of halogenated flame retardants on consumers’ health.
But there may also be a third option in the future. After hearing from experts and stakeholders, a House of Commons committee report urged amendments to the act so that Canadians would be better protected from endocrine-disrupting chemicals like flame retardants. In her Oct. 6 response to the report, Minister McKenna does not commit to amending CEPA, unfortunately. However, she does promise to evaluate potential amendments. Strengthening CEPA remains an option on the table.
None of these three options, by itself, is a perfect solution to the hazardous and ubiquitous exposure to toxic flame retardants we encounter everyday. Yet perfection need not be the enemy of protection. With its decision to ban these harmful substances in consumer products, the U.S. Commission has embraced the need to take precautionary action. Canada should do the same.