Money to Burn
November 24th, 2011
Facing growing concerns over the health risks of flame retardants in household products, the chemical industry spent at least $23.2 million over the past five years to lobby California officials and donate to campaigns in a successful effort to defeat legislation. During that time, five bills that would have regulated the ubiquitous chemicals failed to pass the California Legislature. The four top recipients of industry's donations, three Democrats and one Republican, never voted in favor of any of the bills. Two of them were members of a committee that rejected the bills.
A five-month investigation by Environmental Health News revealed an infusion of chemical industry cash into California that has global implications. During the five years of lobbying, the flame retardants have been building up in people's bodies, including breast milk, around the world.
Designed to slow the spread of flames, brominated and chlorinated chemicals are added to upholstered household furniture and babies' products sold throughout North America because California enforces a unique flammability standard. The chemical industry has been fighting to retain that state standard and ward off California proposals to ban the chemicals or mandate alternatives.
At least $22.5 million was spent to lobby legislators as well as officials from at least six state agencies and then-Governor Arnold Schwarzenegger's office. In addition, at least $593,000 in campaign money was donated over three election cycles to 85 legislators, including 44 Democrats and 41 Republicans, according to public documents.
State Senator Mark Leno (D-San Francisco), who authored four of the five failed bills, said he has no doubts about why it's been so hard to pass legislation to regulate flame retardants. He called California's flammability standard "a multibillion-dollar windfall" for the chemical industry. "This is an industry-dominated issue using government to stuff their pockets," he said. "To spend a few million to defend it is not all that surprising, but it's very unfortunate."
Chemical industry officials say the flame retardants are safe and effective, and that they are necessary to protect people from fires in their homes. The science, they say, is unclear about human health effects. "We want to make sure that people are protected and that any [legislative] changes are well studied first," said Kathryn St. John, a spokeswoman for the American Chemistry Council. "The reason people feel safe in their homes today is because fire retardants have worked for many years and improved safety."
Flame retardants are incorporated into foam furniture cushions, as well as children's car seats, changing pads, nursing pillows, portable cribs, and other upholstered products. They also are found in some electronics and electrical equipment. And the $4.6 billion industry is growing. Global flame retardant revenues will reach $5.8 billion by 2018, led by a record increase of 7 percent a year in China, according to a study released in July by the industrial market analysis firm Ceresana Research.
Evidence of the chemicals' ubiquity, persistence, and potential health hazards is growing. Somehow escaping the polyurethane foam, they contaminate dust and food, and are accumulating in the bodies of people and wildlife worldwide, even as far away as the Arctic, scientists say. Health experts also worry that high concentrations of the chemicals found in many people might pose a risk, especially to children. In a pilot study released in August, researchers found the highest levels detected so far, and they were in pregnant women in California.
In experiments with animals, flame retardants have caused cancer, liver, and thyroid damage, altered hormones, damaged DNA, and impaired reproductive and brain development. Several studies have reported sharp increases in the levels of the compounds in the breast milk of American women. Whether there are human health effects is largely unknown, although some studies have reported links between exposure to the chemicals and lower IQs in children, reduced fertility in women, early onset of puberty in girls, and altered thyroid hormones in men.
Manufacturers of flame retardants are not based in California, yet they have spent millions of dollars lobbying in the state because it has the only flammability standard for household furniture in the United States. California also was the first state to regulate flame retardants, banning two widely used brominated compounds, called penta and octa, in 2003.
Lobbying activity increased dramatically after the California ban, which led to a nationwide phase-out by the only US manufacturer of the chemicals. Now manufacturers have switched to other compounds that scientists haven't yet evaluated. No new laws restricting flame retardants have been enacted in California since 2003.
It's impossible to determine exactly how the chemical industry spent its lobbying and campaign money because California's political reform law does not require itemized reports. It's also impossible to tell from disclosure statements how lobbyists spent money to influence Schwarzenegger's office or the regulatory agencies they listed: the California Environmental Protection Agency, Department of Consumer Affairs, Department of Toxic Substances Control, Office of Environmental Health Hazard Assessment, State Fire Marshal, and Bureau of Home Furnishings.
But an examination of payments to lobbyists and legislators filed with the California Secretary of State's office since 2007 revealed that spending increased during critical periods when legislators considered — and killed — legislation to regulate flame retardants.
Only payments from top flame retardant manufacturers, their trade groups and lobbyists were included in the $23.2 million, and only if lobbying groups listed flame retardant issues on their disclosure forms. The amount does not include $742,000 in campaign donations from Chevron, Dow, Exxon, and Occidental — which all produce flame retardants — because the companies lobbied California legislators on many other issues related to oil and chemicals.
Burson-Marsteller, one of the world's largest public relations firms, spent at least $6.6 million in California on behalf of a bromine industry trade group. In its lobbying disclosure report, the firm listed two flame retardant bills, AB513 and AB706, and lobbying activities "re: flame retardants" directed at Schwarzenegger's office and regulatory agencies, including the State Fire Marshal, the Bureau of Home Furnishings, and three environmental agencies.
The top flame retardant producers in the United States, Albemarle Corp., headquartered in Louisiana, and Chemtura Corp., in Pennsylvania, spent at least $412,000 on political donations and lobbying in California, according to the documents.
"Companies usually give money for two reasons," said Gary Jacobson, a campaign finance expert and professor of political science at UCLA. "They want a legislator to win or they want to buy access. Giving money opens doors."
Over the past few years, five bills, including one introduced by then state Assemblywoman Sally Lieber (D-Mountain View), tried different approaches in an attempt to win the Legislature's approval:
AB513 would have outlawed a brominated flame retardant called deca (short for decabrominated diphenyl ether, or decaBDE). The bill, introduced in 2007, failed on the assembly floor.
AB706 would have prohibited all forms of brominated and chlorinated flame retardants. AB706 made it through the assembly, but died on the senate floor in 2008.
SB772 in 2009 sought to exempt bassinets, nursing pillows, and other children's products from flame retardant treatments. The bill passed a senate floor vote but failed to win the majority needed to pass the seventeen-member Assembly Appropriations Committee.
SB1291 would have placed flame retardants under the regulatory control of the state's Green Chemistry Initiative. It also mandated review of new flame retardants before they could be added to consumer products. The bill failed on the senate floor by one vote in 2010.
SB147, introduced last year, tried a different strategy to reduce flame retardant exposure. Rather than restricting chemicals, it changes the standard. It calls for a smolder flammability test instead of the current open flame test so that manufacturers would not have to use flame retardants. The bill stalled in the Senate Business, Professions and Economic Development Committee in May.
Of the $23.2 million total, more than $22.5 million supported lobbying efforts by industry trade groups and public relations firms aimed at legislators and regulators. At least $18.3 million was filed under a nebulous category on lobbying disclosure forms called "other payments to influence." This loosely defined category includes office overhead and expenses, compensation to employees who engage in lobbying activities and fees to expert witnesses.
In addition, 85 state senators and assembly members received a total of at least $593,000 in campaign donations from the industry over the three election cycles in which the state considered the bills. Of that, at least $404,000 went to 53 senators and assembly members who voted against at least one of the bills, according to campaign disclosure reports filed with the California Secretary of State.
The top four recipients of industry money — all senators — each received more than $24,000. Sam Blakeslee (R-San Luis Obispo) received nearly $28,000, Gloria Negrete McLeod (D-Chino), received at least $26,000, and Ed Hernandez (D-West Covina) received close to $25,000. Nearly $26,000 went to Roderick Wright (D-Inglewood), who was indicted in 2010 on eight felony counts, including perjury and voter fraud related to filing a false declaration of candidacy.
In addition, at least $41,000 went to eight lawmakers who never voted on the bills, effectively killing four by denying the majority vote. Nineteen legislators who voted to regulate the chemicals received at least $100,000. Five who voted in favor of one bill and either abstained or voted against a second received more than $46,500.
Forty-eight legislators who voted to regulate the chemicals received at least $100,000. Seven voted in favor of one bill and either abstained or voted against a second. Of 47 legislators who took no industry money, 36 were Democrats and 11 were Republicans.
Although Leno's SB147 failed to pass a senate committee last spring, it remains under consideration. Hernandez and Negrete McLeod serve on the committee, along with Lou Correa (D-Santa Ana), Ellen Corbett (D-San Leandro), Bill Emmerson (R-Riverside), Committee Chair Curren Price (D-Los Angeles), Juan Vargas (D-San Diego), Mimi Walters (R-Laguna Hills) and Mark Wyland (R-Escondido). All but Corbett voted against SB147. Together, the eight committee members who blocked the bill took more than $100,500 from the chemical industry and its supporters since 2007.
Blakeslee was not available to comment and Walters' office said the senator "is not available to talk about this issue." Calls to Wright, Negrete McLeod, Emmerson, Price, Vargas, and Wyland were not returned.
Hernandez's legislative director, Annabel Snider, said focusing on campaign contributions detracts from the "real issue, which is making sure that chemicals used for certain products are safe and reviewed through a comprehensive process." She said the campaign contributions did not influence his votes. "Senator Hernandez feels a need to stick by a system that would do comprehensive review rather than just doing it piece by piece, and in some cases maybe putting an even more dangerous alternative in place of the chemical that is banned," Snider said.
Correa, who received at least $14,000 from flame retardant interests and voted against three bills, acknowledged that the public has a right to be concerned about contributions. "But I don't even look at the contributions I get," he said. "I send them directly to my treasurer." Correa said he voted against the bills partly because the science is inconclusive – "you've got papers on all sides" " – and partly because he worries about young burn victims. "You take the totality of the testimony and the danger of ever-growing concerns of environmental risk versus the real existing danger of children being burned. Seeing some of the horrible, horrible cases of children being burned in their cribs, that stuff is very powerful," Correa said.
Leno declined to comment on the donations received by his colleagues, but said on a bill like SB147 he takes the time to present his case to each member with a committee vote. "And almost without exception, as I'm leaving my colleague's office, there's a lobbyist for the chemical industry in the waiting room to go in to get the last word. And, of course, there's a dozen of them and one of me."
Do flame retardants save lives? There is no clear answer. Flame retardants have been used widely since California adopted its flammability standard in 1975. Known as Technical Bulletin 117, the standard requires polyurethane foam in upholstered furniture and children's products to resist a small open flame for twelve seconds. To meet the standard, furniture manufacturers commonly add flame retardants to the foam, which is notorious for its combustibility.
Yet according to a study presented at the International Association for Fire Safety in June, the standard doesn't prevent ignition from small flames or reduce the severity of a fire. That's because the small flame standard doesn't reflect what happens when furniture catches fire, said Vytenis Babrauskas, former head of the National Institute of Standards and Toxicology's combustion toxicology program and lead author of the study, which was federally funded.
The test exposes foam to a small, Bunsen-burner-like flame, Babrauskas explained, but it should have used foam covered with fabric, since that's what people have in their homes. "In real life you don't see this naked foam," he said. "What you see is fabric, and what's going to ignite first is the fabric."
Naked foam treated with flame retardants to meet TB117 can resist a small open flame. But when fabric starts to burn, the foam will be exposed to a much larger flame than used in the TB117 test, and there's no evidence that treated foam can resist that larger flame.
Also, in a 2001 draft proposal for the first national furniture flammability standard, the Consumer Product Safety Commission reported that TB117-compliant chairs performed no better against cigarettes or small open flames than chairs that met voluntary guidelines issued by the Upholstered Furniture Action Council. To meet those voluntary guidelines, manufacturers use fabrics with inherent flame resistance and build furniture following criteria that pass the council's flammability tests — none of which require flame retardants.
Death rates from residential fires involving upholstered furniture fell in California during the 1980s. But the Consumer Product Safety Commission attributed the decline to demographic factors — particularly a rapid drop in smoking prevalence — rather than the state's flammability standard.
Bryan Goodman of the American Chemistry Council disagreed that demographics explain the decline. He cited a March, 2003 study funded by the New Zealand Fire Service Commission, which noted: "In California, where mandatory standards for home furnishings have been in place since 1975, the incidence of fire death, injury and property loss have fallen faster than in the USA as a whole. Between 1978 and 1995, there was a significant decline in the number of deaths in the USA where upholstered furniture was the first item ignited."
The study cited a report by the California Bureau of Home Furnishings, which credited TB117, its own standard, as the main factor in reducing the rate of fires involving home furnishings. But Babrauskas argued that this interpretation ignores the fact that most people keep the same couch for many years. "It's not credible that there would have been any significant effect between 1975 and 1980, since the life of a sofa is fifteen to thirty years and we see no drop in rate at the five-year mark of implementation," he said. "If TB117 was responsible for the decline, you would have continued to see a big drop from year five to fifteen, but there is none."
No one factor can explain the state's reduction in fire deaths, said Tonya Hoover, California's acting state fire marshal. She attributed the decline to a combination of factors, including fire-safe building construction, smoke alarms, material flammability standards, and reduced smoking.
The Consumer Product Safety Commission's proposed federal regulation has not moved beyond a draft form. As a result, because manufacturers make most of their products to comply with TB117, California's flammability rule serves as a de facto national standard.
Among the witnesses that chemical industry lobbyists engaged to testify in the state legislature against the flame retardant bills were burn victims. Leno recalled a committee hearing where lobbyists presented fire-scarred women on crutches, who related the trauma of being caught in a fire. At another committee hearing, on Leno's SB772, two African-American boys, ages 10 and 13, pleaded with legislators to keep them safe from fire by defeating his bill. "It's all about fear and nothing about facts," Leno said.
The evidence shows that California's fire safety standard may give someone an extra three or four seconds to flee an inflamed room, he added, "but it's not the flames that kill. It's the carbon monoxide and the increased smoke that these chemicals cause."
Leading the testimony in opposition to SB772, Sacramento lobbyist Joseph Lang said at that hearing that Leno's bill asked legislators to choose between the "fire safety of children and an alleged health risk which has yet to be scientifically documented."
Beyond securing witnesses for committee hearings, lobbyists also pay to entertain politicians. The California Manufacturers and Technology Association spent at least $6.1 million over four years, including at least $25,000 to entertain California politicians voting on the proposed regulations. Records show the association targeted four of the flame retardant bills.
In January 2007, the association spent at least $3,500 on food and drinks for a legislative reception six months before AB513, the proposed deca ban, failed its first vote on the Assembly floor. Just two of the thirteen assembly members who attended voted for the bill.
By law, legislators must report who donated funds and how much. Lobbyists and companies must disclose only which bills, issues, and administrative agencies were targeted and how much they spent. Records do not indicate how much is spent on each bill because the state doesn't require lobbyists to itemize payments and they do not volunteer the information.
Citizens for Fire Safety, a chemical-industry funded group "formed in response to threatening legislation across the country," according to its website, spent at least $2.2 million on "other payments to influence." In keeping with the minimum disclosure requirements, the group revealed only that it lobbied several state agencies that regulate flame retardants and flammability standards, including the California EPA and the Bureau of Home Furnishings, as well as the governor's office.
The American Chemistry Council, the chemical industry's leading advocacy group, spent at least $4.6 million in three months during the same time that AB706, Leno's attempt to ban halogenated flame retardants, failed on the senate floor.
In addition, the chemistry council spent at least $1 million on lobbying activities related to three other flame retardant bills, and donated $100,000 to legislators' campaigns.
Bryan Goodman, a spokesman for the American Chemistry Council, declined to say how the lobbying money was spent, noting only, "We abide by all lobbying requirements and complete all required government reports."
Goodman pointed out that the council, which represents more than 150 companies, engages in a wide range of California issues relevant to the chemical industry, not just flame retardants. AB706 was one of 13 bills targeted by the council that quarter, lobbying records show.
The latest bill, SB147, has one more chance to make it through the committee come January. Leno said the bill "lets the free market prevail" because it allows manufacturers of products such as furniture and nursing pillows to find alternatives to chemicals.
Whatever happens to SB147, environmentalists will continue to make flame retardants a priority next year, said Bill Allayaud, California director of governmental affairs for the Environmental Working Group. It's the same story whenever the safety of a chemical comes into question, he said.
"Every other week a more damning study comes out and industry keeps saying there's no evidence, or that for every study that says there's harm, there's one that says it's safe. That's completely untrue," he said.