By Annys Shin
Washington Post Staff Writer
Saturday, January 26, 2008
Since its inception, the Consumer Product Safety Commission has grappled with how to reduce the number of deaths and injuries from accidental fires. It chose to tackle the problem by crafting a regulation to make upholstered furniture less flammable. A record 14 years later, a rule is heaving into sight, with a final vote possible later this year.
If the regulation is approved, it will end a protracted battle among a far-flung set of interests. The story behind the rule and why it took so long offers a glimpse at the constraints under which the CPSC operates. Hemmed in by jurisdictional dictates and sometimes hampered by a lack of clear scientific evidence, the commission became caught in the middle of warring industries. It became increasingly preoccupied with finding a compromise, and, at times, not able or inclined to impose its will on the voices shouting to be heard.
Those voices included fire marshals recruited to fight fire-safe cigarettes, a Berkeley biochemist who suspected her couch poisoned her cat, a group of Mississippi furniture makers, and an energetic ex-tobacco lobbyist who relished hardball tactics.
"I never felt any of the companies I worked with in this had the interest of the consumers at heart," former CPSC chairman Ann Brown said. "It was a hundred fingers pointing in a hundred directions."
Since work on the rule began in 1994, fires involving upholstered furniture killed more than 3,600 people, injured 6,500 and caused more than $1.5 billion in property damage, the CPSC said.
For years, there has been an obvious way to address accidental fires: requiring tobacco companies to make cigarettes, which are the leading cause of fatal fires, self-extinguishing. But tobacco was exempted from CPSC jurisdiction when the agency was created in 1972, and a 1994 attempt to give the agency authority over cigarettes failed.Catching Fire
The alternative was to focus on the furniture that was catching fire. And the tobacco industry, which wanted to avoid further regulation of cigarettes, did its best to steer the CPSC in that direction.
The industry's agent was a former insider named Peter Sparber. Sparber, now in his early 60s, started out as a newspaper reporter in New Jersey and became a vice president of the Tobacco Institute, the industry's lobbying arm, in the 1980s. There, he built a national network of tobacco-friendly fire marshals to call on in the fight against fire-safe cigarettes. To win their loyalty, the industry gave out hundreds of thousands of dollars in grants to fire departments across the country, according to internal documents released under the 1998 multi-state tobacco settlement.
By the late 1980s, Sparber had set up his own firm and was a volunteer lobbyist for the National Association of State Fire Marshals. In 1994, the group petitioned the CPSC to require furniture manufacturers make upholstered furniture so it would resist ignition by a smoldering cigarette and small open flames.
Unknown to the CPSC at the time, Sparber was still on the tobacco industry payroll, working on a variety of issues. In a 1993 strategy memo on combating indoor smoking restrictions, he suggested the industry find "third parties" to portray restaurant workers as carriers of disease. "It may be hard to generate public concern over restaurant exposure to [second-hand smoke] when the public is more concerned about contracting rare, Central American strains of tuberculosis," he wrote.
Sparber, who remains the fire marshals association's pro bono lobbyist, did not respond to e-mails or messages left at his office. His colleague and Tobacco Institute alumna, Karen Suhl, answered questions on behalf of the association but declined to be quoted.
On the upholstered furniture front, Sparber was well matched by the furniture industry, which had a powerful ally in then-Rep. Roger Wicker (R-Miss.). Furniture makers opposed the proposed regulation because of its cost and concerns about the health effects of fire-retardant chemicals on its workers. In 1999, Wicker was able to delay the rule by attaching a rider to an appropriations bill that blocked further action until a study was done on the health risks of fire-retardant chemicals.Landscape Shifts
The study, completed the following year, said some fire retardants were safe to use. Work on the rule resumed, but the political landscape had shifted. The tobacco companies had signed the multi-state settlement and agreed to close the Tobacco Institute. In 2000, New York passed the first fire-safe cigarette law, which took effect in 2004. Twenty-one states have followed suit, including Maryland, effective in July.
Sparber, however, had an incentive to stick around. Starting in 1999, lobbying registration records show, he went to work for the top producers of brominated fire-retardant chemicals, which include Chemtura of Middlebury, Conn., and Albemarle of Richmond. The industry stands to benefit if the CPSC adopts the fire marshals' original proposal.
"Like in the 'Sound of Music,' sister always said 'when the Lord closes a door, somewhere He opens a window,' [Sparber] could always figure out a way to get something done," said Michael Brozek, who had worked with Sparber at the Tobacco Institute and is now a lobbyist in Wisconsin.
Sparber's new clients had a lot in common with his old ones. Like the tobacco companies a decade earlier, the makers of brominated fire retardants are facing the prospect of mounting legal restrictions because of health and environmental concerns about their products. Brominated fire retardants are being found in breast milk, San Francisco Bay harbor seals and polar bears near the North Pole. They have been shown to harm brain and reproductive development in animals. EPA scientists last year reported a link between thyroid disease in cats, uncommon until about 30 years ago, and elevated levels of brominated fire retardants.
To defend its products, the fire-retardant chemical industry has turned to some familiar faces. Chemtura is a member of the fire marshals association president's roundtable with annual dues of $7,500, the group's executive director Jim Narva said. Last summer, when Washington state was considering banning the fire-retardant chemical deca, Thomas Brace, a co-founder of the fire marshals association, testified against the ban, saying he didn't want environmental concerns to overshadow fire safety. The ban was approved.
Increased awareness of the health risks of fire retardants, meanwhile, confronted the CPSC with a dilemma: how to strike a balance between the need to prevent fatal fires and the risk of exposing millions of consumers to potentially harmful chemicals. It was enough of a conundrum to drive away consumer groups, which in recent years have chosen to sit out of the upholstered furniture debate.Industry Impasse
The impasse between the chemical and furniture industries forced the CPSC back to the drawing table again and again. A staff proposal in 2001 that would not have required the use of fire-retardant chemicals prompted the fire marshals association to withdraw its petition. Another proposal in 2005 that would have encouraged the use of fire-retardant chemicals upset the furniture industry and its suppliers.
However, by 2005, the politics had shifted yet again. The European Union and California had banned two brominated flame retardants additives, octa and penta, and the furniture industry had new allies: Friends of the Earth and a University of California at Berkeley scientist named Arlene Blum.
In the late 1970s, Blum's research led the CPSC to remove two fire retardants from children's sleepwear. She recently began collecting data on the presence of fire retardants in common household items after one of her cats was diagnosed with thyroid disease and was found to have high levels of the chemicals in its blood.
Blum briefed the CPSC staff last fall, and some furniture industry lobbyists credit her with helping shape the agency's latest version of the upholstered furniture standard. Approved by the commission in December, the proposal relies on the use of fire-resistant fabrics as flame barriers, rather than chemicals. If there are no more delays, the commission could vote on a final rule this year.
Sparber hasn't given up. He has opened new fronts. Through the fire marshals association, he has unleashed a flurry of proposals that would have the same effect as if the CPSC were to adopt the regulation the association wants. One petition before the Transportation Department would classify polyurethane foam as a hazardous material. If approved, it would mean trucks delivering sofas with untreated foam would have to bear warning placards as if they were gasoline tankers. Sparber is also pursuing building code changes that would place restrictions on retailers that didn't sell fire retardant-treated furniture.
He laid out the building-code gambit in simple terms for executives at Chemtura and Albemarle in a Jan. 4, 2007, e-mail: "Taken alongside NASFM's other initiatives, this is hardball of the first order."