By Michael Hawthorne
The Chicago Tribune
CHICAGO — As furniture makers move to phase out toxic, ineffective flame retardants, the chemical industry is waging an aggressive last-ditch campaign to preserve a lucrative market that reaches into virtually every American home.
One of the world's leading manufacturers of flame retardants is suing California to block a new flammability standard that starting next year will allow furniture manufacturers to eliminate the chemicals from new upholstered sofas and chairs sold nationwide. The lawsuit, scheduled to be argued Friday in a Sacramento courtroom, is backed by the American Chemistry Council, the industry's chief trade group.
The trade group also lobbied fiercely to thwart a California bill that would require labels on any new furniture that still contains flame retardants. Ads in the online editions of local newspapers urged people to tell state lawmakers "to oppose legislation that misleads consumers about weakened fire safety standards."
Philadelphia-based Chemtura, the chemical company leading the legal challenge, commissioned a poll that described flame retardants as safe chemicals "used to make different materials more difficult to catch fire and help slow the spread of fire."
Based on the questions asked, the poll found that consumers "see a clear link between fire safety and flame retardants" and "view CEOs who … discontinue use of flame retardants to be putting customers at risk and putting profits first," according to a summary prepared for Chemtura.
But much like earlier tactics embraced by the chemical industry, the latest legal and political maneuvers rely on flawed data and questionable claims about the effectiveness of flame retardants. A 2012 Tribune investigative series documented how the chemicals actually fail to provide meaningful protection from furniture fires.
There are signs that after years of success, the industry's latest efforts aren't having the same effect.
With the furniture industry declaring that it can maintain fire safety without using worrisome chemicals, a California judge signaled in a preliminary ruling Thursday that the state was within its legal authority to adopt a new flammability standard. The state Legislature overwhelmingly approved the labeling bill this week, sending it to Gov. Jerry Brown for his expected signature.
"These are the last gasps of a fraudulent war the chemical industry has been battling to protect their billions of dollars of sales," said California state Sen. Mark Leno, a San Francisco Democrat and chief sponsor of the labeling bill. "They know that with adequate information, consumers will move away from chemical-filled products."
The Tribune's "Playing With Fire" series documented how the chemical and tobacco industries waged a decadeslong campaign of deception that loaded upholstered sofas and chairs with flame retardants linked to cancer, neurological deficits, developmental problems and impaired fertility.
For decades, manufacturers have added the chemicals to furniture sold nationwide largely because of a California flammability standard that required foam cushions to withstand a candlelike flame for 12 seconds.
When Brown ordered a new standard last year, the action broke a long deadlock between advocates concerned about the health hazards of flame retardants and those arguing that the chemicals were necessary to save lives.
Leading the defense of the old standard was a front group for makers of flame retardants that tapped into the public's fear of fire.
Known as Citizens for Fire Safety, the now-defunct group took out full-page newspaper ads and distributed videos featuring ominous music and footage of burning houses. It made flame retardants a racial issue by arguing that poor minority children would be disproportionately harmed if flame retardants were removed from household products.
The group, led by a former tobacco industry lobbyist, also sponsored a retired burn surgeon who told lawmakers stories about horrifically burned babies. The Tribune investigation found that the infants he described did not exist.
Under the new flammability standard, expected to be adopted for furniture sold nationwide, upholstery fabric must resist a smoldering cigarette, which federal statistics show is by far a bigger cause of furniture fires than small open flames.
Phased in during the past year and officially effective Jan. 1, the new rule is modeled after a voluntary standard adopted by the furniture industry and a national smolder standard proposed by the U.S. Consumer Product Safety Commission.
The safety commission has found that specially designed furniture fabric is far more effective at preventing fires than adding flame retardants to the foam underneath. Though the California standard does not ban chemical flame retardants, furniture industry leaders say many manufacturers plan to comply without using the chemicals.
Some companies already have changed their manufacturing processes but aren't yet advertising the availability of flame retardant-free furniture — in part because retailers are allowed under the California rule to sell off inventories of products that could still contain flame retardants.
As a result, it is a confusing time for consumers in the market now for new furniture.
The nonprofit Center for Environmental Health has created a website that lists companies selling furniture and baby products made without flame retardants.
But when the group asked major retailers in late July if they offered such products, several companies responded that flame retardant-free furniture was not available.
"Although we cannot provide specifics about our confidential business plans, please know that we are committed to refining our approach as laws, regulations and science evolve over time," a Pottery Barn customer service representative wrote in an email to one of the group's staff members.
"When our component suppliers have completed testing and evaluation, it is reasonable to expect that we will offer upholstered furniture with less or no fire retardant," wrote a representative from Ethan Allen, another furniture retailer. "We are hoping to begin production of reduced fire retardant and fire retardant free upholstery later this year."
Andy Counts, chief executive officer of the American Home Furnishings Alliance, the furniture industry's main trade group, said he expects some retailers to make a "huge marketing push" next year for products that meet the new flammability standard.
"As a consumer, I would feel pretty good that there are plenty of products out there, both now and in the future, that are free of flame retardants," Counts said in an interview. "If you are interested in that sort of thing, you can certainly request it from your retailer."
Chemtura, the chemical company challenging the California standard, contends the state overstepped its authority by changing furniture flammability regulations first adopted in 1975. The company is asking a California Superior Court to throw out the new rule, known as Technical Bulletin 117-2013, and reinstate the old regulations.
"As longtime advocates for fire safety standards, we believed that the (state) … weakened fire safety when it removed the open flame requirement from the California flammability standard," Marshall Moore, Chemtura's director of innovation and sustainability, wrote in an email. "The result is a standard that we — and many others in the fire prevention community — believe goes against public safety interest, putting families and children at risk."
Federal officials say a sharp drop in fire deaths and property damage nationwide can be attributed to declining smoking rates, increased use of smoke detectors and the development of cigarettes that self-extinguish.
Testing by the Consumer Product Safety Commission and Northbrook-based Underwriters Laboratories has found that flame retardants provide no meaningful protection from small open flames — the type used in tests that industry relied on to meet the old California flammability standard.
In the safety commission tests, scientists in a federal laboratory touched a candlelike flame to a pair of upholstered chairs — one with a flame retardant in the foam and one without. Both were engulfed in flames within four minutes.
The amount of smoke produced by both chair fires was similar, said researchers, who noted that most fire victims die of smoke inhalation, not the fire itself.
The chair with a flame retardant in the foam contained a chemical made by Chemtura known as Firemaster 550, according to federal records obtained by the Tribune under the Freedom of Information Act.
Chemtura says Firemaster 550 is safe and has promoted it for years as an eco-friendly chemical. But signs of the flame retardant are showing up in people, and the U.S. Environmental Protection Agency has targeted it as a potential health hazard.
On websites and in public testimony, the chemical industry cites other government-sponsored studies as proof that flame retardants can give people enough time to escape a fire. The lead author of one of the studies told the Tribune that the industry has misrepresented his findings and that the amount of flame retardants added to household furniture doesn't work.
In another study, the key finding cited by industry relied not on upholstery fabric but on cloth used in theatrical curtains that are designed to self-extinguish in case of fire, the Tribune found.
With many consumers clamoring for more information about their exposure to toxic substances, California lawmakers approved legislation that would require labels on new upholstered furniture that contains flame retardants.
The bill passed the state Assembly 56-17 on Wednesday after the furniture industry announced its support. The Senate sent it to Brown on a 28-5 vote.
Ads taken out by the American Chemistry Council directed readers to a website that contends the proposed labels would "include misleading information about flame retardants, making sweeping generalizations about these important chemistries." The site urges people to support an open flame standard like the old California rule that increased the use of flame retardants.
The labeling bill "would negatively impact consumer safety by requiring furniture labels to contain inaccurate and incomplete information about flame retardants and fire safety," Bryan Goodman, a spokesman for the trade group, said in an email.
Sharp differences remain among government and independent researchers about whether furniture fires started by open flames are common enough to demand a standard that would address them. California officials are conducting a study, but advocates say that shouldn't prevent lawmakers from acting now.
"Consumers have a right to know when unnecessary, untested and harmful flame retardants are used in furniture," said Judy Levin of the Center for Environmental Health. "That is what the labeling bill would do, which is why the chemical industry is opposing this important consumer bill."
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