Profile on the Corporate-Regulatory State

This article from the Chicago Tribune on fire retardants has everything, from regulations that benefit a small industry group to tort lawyers effectively forcing the propagation of a bad standard to playing the race card and the "for the children" card in policy debates.   Here is a bit of history I did not know:

These chemicals are ubiquitous not because federal rules demand it. In fact, scientists at the U.S. Consumer Product Safety Commission have determined that the flame retardants in household furniture aren't effective, and some pose unnecessary health risks.

The chemicals are widely used because of an obscure rule adopted by California regulators in 1975. Back then, a state chemist devised an easy-to-replicate burn test that didn't require manufacturers to set furniture on fire, an expensive proposition.

The test calls for exposing raw foam to a candle-like flame for 12 seconds. The cheapest way to pass the test is to add flame retardants to the foam inside cushions.

But couches aren't made of foam alone. In a real fire, the upholstery fabric, typically not treated with flame retardants, burns first, and the flames grow big enough that they overwhelm even fire-retardant foam, scientists at two federal agencies have found.

Nevertheless, in the decades since that rule went into effect, lawyers have regularly argued that their burn-victim clients would have been spared if only their sofas had been made with California foam. Faced with the specter of these lawsuits — and the logistical challenge of producing separate products just for California — many manufacturers began using flame retardant foam across their product lines.

The "if only the manufacturer had used technology X, little Sarah would not be dead" argument should be very familiar to readers of Walter Olson's blog.  Part II of the story argues that the Tobacco industry helped reinforce this story to shift the blame for fires started by cigarettes to the furniture (can't any of this be, you know, the person's fault who dropped burning items onto flammable items?)

It also, by the way, has plenty of elements of environmental panic in it.  For example:

"When we're eating organic, we're avoiding very small amounts of pesticides," said Arlene Blum, a California chemist who has fought to limit flame retardants in household products. "Then we sit on our couch that can contain a pound of chemicals that's from the same family as banned pesticides like DDT."

I am open to believing that flame retardant chemicals pose some harm to humans, though one must posit some way for them to get out of the foam and into people for it to be harmful (just existing nearby is not enough).  Further, being from the "same family" as another chemical is meaningless, particularly as compared to DDT which was banned for suspected thinning of bird eggs and not for demonstrated harm to humans.

I finally read through all four parts  of the story, and its interesting to compare the approaches to science.  The authors make a really good case that the science of flame retardants effectiveness is deeply flawed and that lobbying pressure and actions in tort cases have led to their expanded use rather than any particular benefit.

But the authors' scientific standards change wildly when it comes to their own side's science (I write it this way because the authors clearly have  a horse in the race here, they want these chemicals banned). I kept waiting for their bombshell study that these chemicals posed a danger, but we never get it.  All we get is the typical journalistic scare quotes about trace quantities of these chemicals being found in house dust and in certain animals.

OK, but with improving detection technology, we are constantly finding traces of chemicals at tiny levels we did not know were there before.   How much risk do they pose?  We never find out.  It would be nice to know.  I'm convinced I would rather not have this crap in my couch, but there has to be a better standard for legislation than this.  Ironically, the whole point of their story is to highlight regulation pushed by small groups based on bad science, and their response is to ... mobilize a group to push different legislation based on bad science.    There is a heck of a lot of "OK for me but not for thee" here.

Here is what is really going to happen:  After years of being stampeded by tort lawyers into putting these chemicals into furniture as a defense against "you should have..." lawsuits based on bad science, these same furniture makers are now going to be sued by people claiming the chemicals make them sick based on bad science.   And yet another industry will find itself in a sued-if-you-do-sued-if-you-don't trap.

The one group never interviewed in all four parts were furniture makers.  It would have been fascinating to get an honest interview out of them.  I am sure they would say something like "legislatures just need to tell us what they freaking want, chemicals in or out, and then shield us in the courtroom when we follow the law."

Update:  The updates to the story are classic.  After describing how the race card was abused in what should have been a straight up fight over chemical effectiveness and safety, the authors then pen a story called "Higher Levels of Flame Retardants in Minority Children."  It's OK, I guess, to play the race card in a scientific debate if it is for your own side.

  • Smock Puppet, 10th Dan Snark Master

    >>>> the person’s fault who dropped burning items onto flammable items

    OF COURSE NOT. Don't be silly! How can ambulance chasing attorneys make a living with this kind of folderol!?!?

    They might have to do something ridiculous, like get a job flipping burgers or something.

  • http://elysiumecon.blogspot.com/ Aaron McNay

    What I found really amusing is the authors critique of the misuse of scientific findings. In one section of their report they criticize the flame retardant industry for picking the studies that confirm the outcomes they want, while ignoring the reports that do not, even though they seem to do the same thing in their report. For example, here is a quote from the Distorting Science section:
    'The industry has twisted research results, ignored findings that run counter to its aims and passed off biased, industry-funded reports as rigorous science.'
    An yet, here is what the authors wrote in the next section:
    '...2008 risk assessment by the European Union found "no concerns for consumers in relation to carcinogenicity from potential inhalation or exposure to children via the oral route."
    But several other major health and regulatory agencies have identified the flame retardant as a cancer risk, including the World Health Organization, National Cancer Institute and National Research Council.'

  • Steven Schmitt

    Funny how the Trib series doesn't examine the role the media played in this shift to including retardants in everything.

  • Russ R.

    “Higher Levels of Flame Retardants in Minority Children.”

    Isn't this a good thing? These kids will be less likely to catch fire.

  • DoctorT

    "I am open to believing that flame retardant chemicals pose some harm to humans..."

    Humans are not harmed by sitting on foam, walking on carpet, or wearing pajamas treated with flame retardant chemicals. (The EU study did not prove otherwise.) However, when those chemical-impregnated materials are exposed to high enough temperatures, they will burn. The resultant smoke is extremely toxic (much more so than smoke from burning wood or cloth that isn't treated with flame retardants). It is quite possible that flame retardant-treated materials have caused more deaths and injuries than they have prevented.

  • Patrick

    I'm beyond myself. Put flame to anything that can be readily oxidized .... and guess the what happens? It burns. I suggest that we use the extracted blood from the "tort" lawyers, and the Government bureacrats and distill that down to a "non flamable element" and coat all furnature with that! Why not just put a label on the couch that say's "put flame to me and I burn"! If the libs want something that doesn't readily burn, then make it from "steel" or better yet .... aluminum oxide, or some similar refractory. "Idiots, don't regulate my life, regulate yours!"