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PBDE Liability: Get ready

This concise Law 360 report has likely already pushed all the right buttons at various class action firms. The culprit: a chemical with known benefits that is no longer produced in its riskiest formulations, and whose real risk is in fact currently unknown.

A study released by the Environmental Working Group found that polybrominated diphenyl ethers, or PBDEs, a class of chemicals used in fire retardants, is appearing in toddlers' blood at levels three times higher than in their mothers'.

Historically, three types of PBDE were used in consumer products: Penta-BDE, Octa-BDE, and Deca-BDE. Each type of PBDE has different properties and uses. The manufacturers of Penta-BDE and Octa-BDE voluntarily stopped production at the end of 2004. when risk of those much more potent formulations started to be known. Consequently, Deca-BDE is the only PBDE flame retardant currently used in manufacturing. Deca, much less potent than the other two formats, was found in relatively low levels in children in the EWG study. The study found a low average concentration of Deca PBDE's (the only brand currently produced) of 4.7 parts per billion in children, whereas it found more than 5 times that concentration of total PBDEs -- including those no longer being manufactured -- in children.

Children ingest more PBDEs than adults because the chemicals stick to hands or toys, which toddlers tend to put in their mouths. Children similarly ingest lead-based paint, when their parents fail to maintain their premises or to clean up regularly.

"Flame retardants save actual human lives, and no illness, ailment, or harm to any human anywhere has ever been reported as a result of exposure to Deca, even among those who work producing the material," said a spokesman for The Bromine Science and Environmental Forum. Wanna bet this will not stop suits against makers of Deca PBDE's? We have learned from the asbestos debacle that the "state of the art defense" was no barrier to Bleak House style litigation.

Buckle up, here we go! Thinking of using a new and potentially beneficial chemical compound? Get that crystal ball out first!

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.