Toxic chemical in black plastic utensils and toys is being allowed to proliferate by EPA, lawsuit alleges

By Sandee LaMotte, CNN

(CNN) — The US Environmental Protection Agency is failing to protect the public from a dangerous flame retardant — decabromodiphenyl ether, or decaBDE — according to a lawsuit filed this week on behalf of indigenous people in Alaska and California and consumer protection organizations.

DecaBDE has been found in black plastic kitchen utensils, takeout containers, grocery meat and produce trays, and children’s toys that have been recycled from electronic waste such as old televisions and computer monitors, according to a recent study.

“The EPA is allowing, without any restrictions, the ongoing recycling of plastics that contain decaBDE and that violates the legal requirement under the Toxic Substances Control Act to take all practicable measures to reduce people’s exposure to decaBDE,” said Katherine O’Brien, senior attorney for Earthjustice, a nonprofit organization that provides free legal representation on environmental and public health issues.

In response, a spokesperson for the EPA told CNN by email that the agency cannot provide information on pending litigation.

The agency restricted the use of decaBDE in 2021 after the synthetic chemical was linked to cancer, endocrine and thyroid issues, fetal and child development and neurobehavioral function, and reproductive and immune system toxicity.

Despite those restrictions, an October study found decaBDE in 70% of 203 consumer products at levels ranging from five to 1,200 times greater than the European Union’s limit of 10 parts per million.

Based on exposure to contaminated black plastic kitchen utensils such as spatulas and slotted spoons, study researchers estimated a person could be exposed to an average of 34.7 parts per million of decaBDE each day.

One consumer product, a black plastic sushi tray, contained 11,900 parts per million of decaBDE, which is in the polybrominated diphenyl ethers, or PBDE, class of flame retardants.

Levels of PBDE levels in Americans are generally “10–100 times higher than levels measured in people in Europe and Asia,” according to the National Oceanic and Atmospheric Administration. An April study found people with the highest blood levels of PBDEs were about 300% more likely to die from cancer as people with the lowest levels.

The problem with electronic waste

Electronic devices that use flame retardants as a way to prevent fires are common in homes in the United States, according to the American Chemistry Council’s website: “The average home contains more than 20 electronic products, including televisions, smartphones, computers, gaming systems and tablets. These devices are embedded into our everyday lives, yet they could pose additional safety risks if it weren’t for flame retardants.”

The EPA proposed stricter guidelines on decaBDE in 2023, Earthjustice’s O’Brien said, but did not close loopholes such as recycling that allows the chemical to continue to spread in both the environment and into new consumer products.

“Most new uses of decaBDE have already been banned or are being phased out,” O’Brien said. “What we are concerned about is the very large volume of decaBDE that’s already out there, circulating in consumer products, and the question is, ‘How to deal with those products that are already out there?’”

Electronic waste, or e-waste, also includes out-of-date and discarded monitors, televisions, VCRs, stereos, copiers, fax machines, laptops, circuit boards, hard drives, audio-video equipment and car electronic systems. These old products are thrown away, donated to charities or dumped into home recycling containers, experts say.

“The people who work in household recycling facilities and dismantling end-of-life cars and electronics for recycling are exposed to high levels of decaBDE,” O’Brien said. “There are also releases of the chemical into the air and the water and the soil around recycling facilities, which put people living near those facilities at risk of exposure as well.”

There are some restrictions on open dumping of products with flame retardants in landfills, but there are no such restrictions on the incineration of products with high levels of decaBDE in municipal solid waste facilities, she said.

“Many of these incinerators don’t burn hot enough to destroy the chemical, so its toxic breakdown products are released into the environment,” O’Brien said. “DecaBDE then persists in the environment for a very long time, and it also builds up in people’s bodies and wildlife. The EPA has itself said that it’s very concerning to have this chemical proliferate in the environment, but that’s precisely what their rule allows.”

People at highest risk

The lawsuit was filed Thursday in the 9^th US Circuit Court of Appeals on behalf of the Yurok tribe, the largest Native American tribe in California, as well as for Alaska Community Action on Toxics, a nonprofit that advocates for the indigenous people of Alaska. Both the Yurok and Alaska’s indigenous people rely heavily on the local environment for their food and livelihood.

“In addition to threatening the health of tribal members, these chemicals also threaten the survival and recovery of the salmon populations on which the tribes’ culture and economy depend,” O’Brien said.

“The Toxic Substances Control Act requires EPA to give particular consideration to groups of people who are either more exposed to a chemical than the general population, or more susceptible to harm, and both of those things are true for tribal populations when it comes to decaBDE.”

The act provides for direct review of EPA’s regulations under that statute in federal appellate court.

Another plaintiff is the Center for Environmental Transformation in Camden, New Jersey. Camden has a vehicle recycling facility and a solid waste incinerator thought to be significant sources of decaBDE releases to the local environment, O’Brien said. Local burning of trash is also another route of exposure, she added.

The remaining plaintiff is the Consumer Federation of America, an association of nonprofit consumer health and safety organizations with a combined membership of 50 million people.

How to avoid flame retardants

While any final decisions on the federal lawsuit is likely years away, there are ways consumers can reduce their risk from flame retardants now.

“Replace your plastic kitchen utensils with stainless steel options or choose plastic free items to help reduce your overall exposure to harmful additives and plastic,” Megan Liu, science and policy manager for Toxic-Free Future, an environmental advocacy group, told CNN in an earlier interview.

“Some manufacturers also have strong policies about removing retardants from their products, so you can also be a careful shopper,” said Lui, who authored the October study finding high levels of decaBDE in black household products and food containers.

Frequent hand washing, dusting, mopping and vacuuming regularly along with proper ventilation can help remove dust likely contaminated with plastics and other worrisome chemicals besides flame retardants.

Don’t microwave or otherwise heat black plastic containers with food, as heat encourages chemicals to leach out into the food that it is in contact with, toxicologist Linda Birnbaum, former director of the National Institute for Environmental Health Sciences and the National Toxicology Program, told CNN in October.

“Many people wash and reuse the black plastic containers their food comes in,” Birnbaum said. “I tell people to immediately take the food out of that black plastic and put it in a glass, stainless steel or ceramic dish.”

Still, there’s only so much a consumer can do, O’Brien said.

“I’m sitting at a desk in front of two computer monitors that are made from black plastic that have some flame retardant in them — it may very well be decaDBE,” she said. “Day after day some of that chemical is leaching out of the monitors and adhering to my hair, my clothes and the dust in my office.

“I’m breathing in and absorbing some of that dust just as I go about my day,” O’Brien said. “Then I’m going out of my office into an environment where these chemicals from old plastics are allowed to spread.”

“At the end of the day, this is a problem that really requires a regulatory solution. We need the government to do its job to address this problem and keep it from getting worse.”

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