The Women’s Bar Association of the State of New York (WBASNY) supports A.4741 and the identical S.3703, which ban the sale of child care products containing the flame retardant TDCPP (Tris(1,3-dichloro-2-propyl) phosphate). This ban covers items such as baby products, toys, car seats, nursing pillows, crib mattresses, and strollers that contain TDCPP, and it goes into effect on December 1, 2015. It does not apply to the sale or distribution of child care products resold or offered for resale, or distributed by consumers for consumer use.
This ban on TDCPP in child care products is accomplished by adding TDCPP to the definition of Tris in the TRIS-Free Children and Babies Act (Article 37, Title VII of the N.Y. Environmental Conservation Law). Environmental Conservation Law § 37-0703 currently defines Tris as TCEP (Tris(2-chloroethyl) phosphate), which is another flame retardant, and § 37-0705 bans the sale of child care products containing Tris. The current ban on TCEP becomes effective December 1, 2013. A.4741 and S.3703 expand the definition of Tris to also include TDCPP, with the expanded definition becoming effective on December 1, 2015.
The expansion of the TRIS-Free Children and Babies Act will help protect children’s health without compromising safety, as described below. WBASNY fully supports the bills but recommends one change to the current Act to make it internally consistent. Environmental Conservation Law § 37-0703 defines “child care product” as a consumer product intended for use by “children under three years of age.” But Environmental Conservation Law § 37-0705 bans the sale of any child care product intended for use by a “child three years of age or younger” containing Tris. WBASNY recommends that the “child care product” definition in Environmental Conservation Law § 37-0703 be revised to mean a consumer product intended for use by “children three years of age or younger” to be consistent with § 37-0705 and eliminate any potential ambiguity.
The use of both TCEP and TDCPP in consumer products increased after another chemical, pentaBDE, was banned in New York State in 2004 and was phased out nationwide. New York State then enacted its ban on TCEP in 2011. The Assembly passed a bill during the last legislative session to expand the ban to include TDCPP, but the Senate did not vote on the legislation. The TDCPP ban is now being sought in this legislative session through A.4741 and S.3703.
TDCPP is a carcinogen and has been linked to genetic damage. In addition, it is metabolized to several chemicals identified as carcinogens by the International Agency for Research on Cancer and the California Environmental Protection Agency. TDCPP was phased out from use in children’s pajamas in the late 1970s, but it is still used today in many foams, resins, latexes and textile coatings in child care products. TDCPP and other flame retardants are not bound to materials, so children are exposed to flame retardants when they put toys in their mouths, or when the chemical leaches into the air and ends up in household dust. Children then inhale or ingest flame retardants by crawling and playing on floors, as well as by their contact with crib mattresses, play mats, high chairs, car seats and other treated products. Flame retardants also pass through placentas to fetuses and through mother’s milk to babies. One study found flame retardant chemicals in 100% of newborns tested. In another study, young children had a three-times higher level of flame retardants in their blood as their mothers, probably due to the children’s frequent hand-to-mouth behavior, exposures from breast milk, and dietary preferences. A 2012 study found flame retardants in the blood of every toddler tested.
Flame retardants are added to the foam in upholstered furniture to comply with a 1975 California requirement that the foam inside upholstered furniture withstand exposure to a small flame, such as a candle or lighter, for at least 12 seconds before igniting. The California standard applies not only to items such as couches and chairs, but also to infant and baby products such as car seats, changing pads, highchairs, infant swings, play yards, floor play mats, crib mattresses and bassinets. Because the California market is large and manufacturers do not want separate inventories for different states, manufacturers sell products meeting the California standard in New York and elsewhere across the county. However, tests conducted on upholstered furniture show that foam treated with flame retardants ignites just as easily as untreated foam. In an actual fire, upholstery cover fabric ignites first and once the cover burns through to the foam inside, the flame is much larger than that used in the current small flame testing method and fire retardants in foam have little effect at that point. A 2012 U.S. Consumer Product Safety Commission report stated that its open-flame ignition tests on upholstered chairs showed that “fire-retardant foams did not offer a practically significantly greater level of open-flame safety than did the untreated foams.” The President of the Fireman’s Association of the State of New York testified at a September 2012 hearing held jointly by the New York Assembly Environmental Conservation and Health Committees that there is a growing body of evidence that many flame retardants are ineffective and contain carcinogens and other harmful ingredients. He stated his “first comment is any product that hurts children should be removed from the market voluntarily or the government should ban it.”
The California agency that oversees that state’s flammability standards acknowledges the studies that find no significant differences between flame retardant foams formulated to pass its standard and untreated foams. That agency also acknowledges that flame retardant foam can actually increase smolder propensity. California has now proposed a new flammability standard that provides improved fire safety and also “significantly reduces or eliminates manufacturers’ reliance on materials treated with flame retardant chemicals” by imposing a smolder test on fabrics that can be met without the need for added flame retardants.
WBASNY recognizes that if TDCPP is banned, another harmful flame retardant might be substituted in its place. However, with California poised to revise its standards, many items will no longer need added flame retardants. A New York ban on TDCPP in children’s products will push manufacturers of items that do not already meet the proposed new California standards to reformulate their products through the use of smolder-proof fabrics, batting or barriers to meet the standards without the need for flame retardants.
WBASNY recommends that the ambiguity in the current TRIS-Free Children and Babies Act be eliminated by revising the definition of “child care product” to mean a consumer product intended for use by “children three years of age or younger.” Subject to that recommendation, WBASNY urges swift passage of the bills by the Assembly and Senate and further urges Governor Cuomo to sign the legislation when it is passed.