Judge Tosses Challenge to Flame Retardant Rules  |  Chicago Tribune

By Michael Hawthorne, Tribune reporter
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August 29, 2014, 7:05pm

Consumers nationwide are closer to being able to buy furniture made without toxic, ineffective flame retardants after a California judge on Friday threw out a legal challenge from the chemical industry.

Chemtura Corp., one of the world’s largest manufacturers of flame retardants, sued in an attempt to block a new flammability standard that the furniture industry says it can meet without using the chemicals in products sold throughout the United States.

The regulations, scheduled to take effect Jan. 1, will require upholstery fabric to resist smoldering cigarettes, which federal statistics show are by far the leading cause of furniture fires.

California Gov. Jerry Brown ordered the updated standard after a 2012 Tribune investigation documented how the chemical and tobacco industries promoted flame retardants for decades with flawed data and questionable claims about the effectiveness of the chemicals.

The chemicals provide no meaningful protection from furniture fires, according to federal researchers and independent scientists.

Chemtura and the American Chemistry Council, the chemical industry’s chief trade group, argued that California officials overstepped their legal authority by changing a flammability standard first adopted in 1975. The old regulations required foam cushions to withstand a candlelike flame for 12 seconds, a standard that most furniture manufacturers met by adding flame retardants to the foam. But if furniture fabric stops a fire from starting in the first place, federal and independent scientists say, there is no reason to keep adding flame retardants to the foam underneath.

In a preliminary ruling Thursday, California Superior Court Judge Michael Kenny said state officials acted within their authority in changing the flammability regulations. Chemtura’s legal reasoning, Kenny wrote in a six-page decision, “would produce absurd results.”

The judge made his decision final Friday after a hearing featuring lawyers for Chemtura and the chemical industry on one side and those representing the state, firefighters groups and public health advocates on the other.

Chemtura said it has not decided whether it will appeal.

“It is clear to us and others in the fire safety community that the new … standard is a step backwards and will ultimately adversely affect fire safety for the entire nation,” the company said in a statement posted on its website.

The decision comes a day after California lawmakers sent Brown legislation that would require labels on new furniture containing flame retardants.

State Sen. Mark Leno, a San Francisco Democrat, said he sponsored the bill because the new flammability regulations do not ban flame retardants. Furniture industry leaders say most manufacturers plan to comply without using the chemicals. Leno said the Tribune investigation broke a long deadlock between advocates concerned about the health risks of flame retardants and those arguing that the chemicals were necessary to save lives.

The newspaper’s series documented how the chemical and tobacco industries waged a decadeslong campaign of deception that loaded upholstered sofas and chairs with pounds of chemicals linked to cancer, neurological deficits, developmental problems and impaired fertility.

Some furniture makers 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 the chemicals.

The nonprofit Center for Environmental Health has created a website, http://www.ceh.org/campaigns/flame-retardants, that lists companies already selling products made without flame retardants.

“We are pleased that the judge upheld California’s right to protect our children and families from harmful, unnecessary flame retardant chemicals,” Michael Green, the group’s executive director, said after Friday’s court decision. “Despite the industry’s bogus arguments, this ruling shows again that we can have safer furniture made without these harmful chemicals.”

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