NJ Proposes to Ban decaBDE Flame Retardant in Products

In February and May of 2011, the New Jersey legislature induced identical bills in the Senate (S 2722) and Assembly (A3915) to ban the manufacture and sale of products containing decabromodiphenyl ether (decaBDE). DecaBDEs are used in plastics for TV cabinets, consumer electronics, wire insulation, back coatings for draperies and upholstery. Growing concerns over the connection between decaBDEs and liver, thyroid and neurodevelopmental toxicity have lead a number of states, countries, as well as the European Union to institute bans.

Under the proposed legislation, the ban would go into effect on January 1, 2014, and apply to products containing more than 0.1% decaBDE, unless it is used for military or transportation purposes or is solely derived from recycled materials and used exclusively in electronic equipment. Sellers would have up to December 31, 2014 to sell off existing stock. Violations of the act would be an unlawful practice under the NJ Consumer Fraud Act, N.J.S.A 56:8-1 et seq., carrying a penalty of $10,000 for the first offense and up to $20,000 for subsequent violations.

Washington was the first state to implement a ban on decaBDE products, joined by several others, including Oregon, Maine, Vermont and Maryland. In addition, in December 2009, EPA negotiated phaseout commitments from three companies responsible for most of the decaDBEs sold or imported into the United States who agreed to end all uses of the chemical by December 2013.

However, one of the most powerful deterrents to decaBDE sales is likely to be Wal-Mart’s Product Safety and Regulatory Notice of December 28, 2010. The notice, issued to Wal-Mart’s suppliers announced that beginning June 1, 2011, it would enhance its testing of consumer products for all polybrominated diphenyl ethers (PBDEs), including decaBDEs. What vendor would risk its supply contract with the world’s largest retailer when faced with clear direction backed up with enhanced testing?

EPA would appear to agree. As quoted in The Washington Post, Steve Owens, assistant administrator of the EPA’s Office of Chemical Safety and Pollution Prevention, stated: “Wal-Mart has taken an important step toward protecting children and families from exposure to toxic chemicals … EPA has long had concerns about PBDEs.” The Washington Post noted that although EPA had cited PBDEs as chemicals of concern in 2010, it had not been able to limit their use. In the absence of federal action, states and retailers have stepped up. The result is more complexity for corporate compliance because the various bans and limitations rarely correspond with each other, differing by products covered and dates of implementation.

Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.