On May 11, 2019, Canada announced a series of decisions on seven halogenated flame retardants. Troublingly, the government decided to ban only two individual flame retardants and to leave five other similar chemicals on the market. This regulatory approach is weaker than that of the US, where entire classes of these harmful chemicals are facing bans. Ottawa’s decisions expose Canadians to toxic hazards.

Industry uses flame retardants in many manufacturing processes and products, exposing humans and wildlife to these chemicals in various ways. One way is they migrate out of consumer products like furniture, electronics, flooring, and clothing. Through air, dust, and skin contact, they then migrate into bodies, accumulating in fat and contaminating breast milk. They cause reproductive and neurological effects in developing foetuses and infants, and they cause diabetes and obesity, lower sperm counts and infertility, and cancers. As endocrine disruptors, flame retardants can be harmful at very low doses, particularly in “critical windows of susceptibility” such as in utero, or during puberty and pregnancy. Some groups have elevated health risks, such as gymnasts, who tumble on mats dosed in flame retardants, and firefighters, who absorb toxics on the job through their skin and lungs, and who are fighting for bans.

Hopes ran high when, in 2013, Environment Canada and Health Canada began assessing ten flame retardants together, in a “grouping assessment” under the Canadian Environmental Protection Act, 1999 (CEPA). Assessing classes of chemicals, rather than evaluate them one-by-one, is often viewed as a promising tactic in tackling “regrettable substitution.” Regrettable substitution occurs when regulators ban a toxic substance only to have industry rapidly replace it with a new substance that is chemically similar and equally harmful. Many flame retardants currently on the market are regrettable substitutes for polybrominated diphenyl ethers (PBDEs), notorious toxic flame retardants that have been banned or are being phased out in most countries.

These hopes have now been dashed. Instead of restricting halogenated flame retardants as a class, the government decided that only two chemicals should be regulated as toxic substances. (Only seven of the ten chemicals in the grouping assessment have received final decisions; decisions for the last three in the group are still pending, and it remains to be seen if they will be banned.)

Worse still, it appears that some of these decisions disregard what federal law says about assessing toxic substances.

CEPA defines if a substance is “toxic.” Under this legal test, in deciding if a substance is toxic, assessors must evaluate not only the substance’s innate toxicological hazards but also levels of exposure – they must ask both “how bad” and “how much.” Further, when assessing exposure levels, assessors must evaluate not only if a substance “is entering” environments, but also if it “may enter” environments in quantities or concentrations harmful to human health or to the environment. Thus, when assessing a substance under CEPA, federal assessors must also evaluate anticipated increases in a substance’s import or use.

And yet, the potential future increase in use of some of the flame retardants was not reflected in the government’s final decision.

Of the seven substances assessed in CEPA, two of the most dangerous are TBB and TBPH. Added to foams in furniture, mattresses, and pillows, these chemicals are replacements for high-volume legacy flame retardants like PBDEs. In fact, assessors acknowledged that “there is a probability that quantities could increase in Canada” – in effect, industrial production and use of TBB and TBPH is a growth industry. Despite this, the government explicitly limited its evaluation to “current quantities in use in Canada.”

Among the seven flame retardants assessed were also ATE, tricresyl phosphate (TCP) and ethylene bis(tetrabromophthalimide) (EBTBP).The threats posed by ATE, a bioaccumulating chemical that is acutely toxic to aquatic species, were downplayed. Officials developed industrial release scenarios based on current levels of use, even while acknowledging that findings may change “if import and use quantities were to increase in Canada.” TCP and EBTBP were evaluated using the same approaches.

In short, for these five chemicals, the government refused to take into consideration growing industrial use into their decisions. In doing so, it could reach the problematic conclusion that innately hazardous chemicals are not risky or toxic under CEPA.

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Compare this with the decisions for decabromodiphenyl ethane (DBDPE) and Dechlorane Plus® (DP). Here the government applied the full legal test, properly deciding that “it is also important to consider how DBDPE levels in the environment may increase in the future.” As a result of correctly evaluating whether these substances one day “may enter the environment” in harmful quantities and concentrations, DBDPE and DP were found to pose environmental threats, determined to be toxic under CEPA, and proposed to ban them. This ban will be especially welcome in the Great Lakes region, particularly near Lake Ontario and the Niagara River, where DP has already been found at high concentrations in sediment, air, birds and several fish species.

In contrast to Canada’s haphazard regulatory approach, other jurisdictions are taking systematic and precautionary action. In the US, the Consumer Product Safety Commission has decided to ban all organohalogen flame retardants added to products that include toys, furniture, mattresses, and electronics. This ban comes into effect in the fall of 2019. In the meantime, the ban is gathering support from scientists in the US. On May 15, 2019, the US National Academies of Sciences, Engineering, and Medicine endorsed the approach of collectively assessing and regulating, as a class, organohalogen flame retardants with similar properties, chemical structures, and biologic activity.

 Further, coastal states like Washington, California, Rhode Island, and Maine have also restricted classes of halogenated flame retardants in various consumer protects, and Alaska is considering doing the same.

In Washington state, the law is an explicit attempt to stave off extinction of the southern resident killer whales. With only 75 animals left, the southern residents’ survival is threatened by flame retardants accumulating in their bodies. Canada has belatedly started taking measures aimed at recovery of these endangered orcas, after the Federal Court of Appeal cited a lack of action as one of the reasons behind its overturning the approval of the Trans Mountain pipeline. When it comes to toxics, these measures fall short. By refusing to restrict all halogenated flame retardants, Canada’s killer whale recovery efforts are fragmented and insufficient.

Canada is rarely held accountable for weak implementation of its toxics law. Environmental groups have never sued the government to force its compliance with CEPA’s rules on toxic substances, focusing rather on participation in stakeholder committees and public consultations. Environmental health advocates have instead been advocating amendments to CEPA. Undoubtedly, these amendments are long overdue. Over the last 15 years parliamentarians of all political stripes have pressed for legislative improvements. Most recently, in a 2017 report, the Standing Committee on Environment and Sustainable Development recommended changes aimed at better assessment and regulation of endocrine disruptors, including revisions to the definition of “toxic.” Unfortunately, while the government agreed with many of the committee’s proposed legislative reforms, it declined to introduce any amendments before the 2019 election.

Amending the legal test concerning what substances are “toxic” under CEPA is certainly important. In the meantime, we should implement and enforce the law that we have. To prevent regrettable substitution, CEPA assessments must factor in anticipated increases in use and exposure – especially for industrial chemicals like flame retardants that are designed, produced, and used as replacements for phased-out toxic substances.

Photo: Shutterstock, by maradaisy

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Lara Tessaro
Lara Tessaro is an environmental lawyer and researches toxics regulation. In fall 2019 she will commence a PhD in Law at the University of Kent.

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