Jay Fleming is a booming Boston firefighter who has climbed the ranks since 1978. He has two engineering degrees, a no-nonsense manner and thick accent.
For the last seven years, he has applied his considerable wit to banning flame retardant chemicals in Massachusetts, which might sound counterintuitive to those not steeped in the byzantine logic of American chemical regulation.
“Firefighters are like the canary in the mine,” said Fleming. “If there is a problem with these chemicals, we’re going to get it,” said Fleming. “We’re exposed to the highest level.”
Fleming has watched colleagues die of cancer since he started in the department. His father was also a firefighter. He died of lung cancer in an era when few firefighters wore masks, let alone the rebreathers available today.
But now, that diagnosis feels less exotic than news his peers get – findings of kidney, bladder and thyroid cancers. The legislator who once carried the bill to ban fire retardants, former firefighter and senator Ken Donnelly, himself died of brain cancer at just 66. Fleming blames flame retardants, some of which have already been designated as likely to cause cancer and which have been found to disrupt the endocrine system, according to the National Institutes of Health.
Already, new generations of the products have been introduced since concerns were first raised about their safety, effects on the human body and persistence in the environment.
“When they started to transition to this plastic stuff [in the home], it just produced smoke that was a lot more irritating,” said Fleming. Firefighters never said to “add flame retardants, they just said address the plastics problem, because it’s killing us [from the smoke while fighting fires] … The solution to adding chemicals to the furniture was to add more chemicals to the furniture.”
Incident Commander Deputy Jay Fleming briefing the media pic.twitter.com/apMzciT1rg— Boston Fire Dept. (@BostonFire) October 24, 2017
Fire retardant chemicals were first proposed by tobacco companies as a solution to fires started by cigarettes in the 1970s. Rather than reformulate their products, they suggested, society could reformulate everything else.
At the same time, studies have shown children exposed to flame retardants are more likely to have poorer social skills. Exposure in utero could have lower the overall IQ and working memory. Some studies have shown disruption to thyroid functions and a possible link to cancer. The chemicals also bioaccumulate in the body. Flame retardants have been found at “considerable” levels in freshwater and in midwestern bobcats.
But all this time – despite the endorsement of pediatricians, firefighters and lawmakers – Massachusetts has failed to sign a bill into law.
Opposing the bill, despite its many backers, has been the American Chemistry Council (ACC).
Their member companies read like a list of American blue chips – branches of oil giants such as Chevron Philip Chemical Company and ExxonMobil, pharmaceutical manufacturers such as Eli Lilly and Company and Merck & Co, and public-facing companies such as DuPont and 3M.
The ACC told the Guardian: “Flame retardants play an important role in fire safety and are proven to be effective in preventing fires. If a fire does occur, flame retardants slow its progression and provide people extra time to escape while giving firefighters more time to respond.”
The group added that flame retardants are “especially important today as the large volume of electrical and electronic equipment in buildings and a larger volume of combustible materials can increase the potential for fire hazards”.
This winter, the ACC registered two lobbyists based out of New York to combat the flame retardant bill. Margaret Gorman and Erin DeSantis, both in-house lobbyists working in the north-east for the ACC, were joined by three lobbying firms employing 10 more lobbyists registered to work on the issue.
The Massachusetts legislature approved a fire retardant ban with bipartisan support. However, their efforts were thwarted when the Republican governor, Charlie Baker, “pocket-vetoed” the bill, letting it die without signing it.
“While I would get a sense there were people out there opposing my bill, I never knew exactly who,” said the Democratic representative Marjorie Decker, who carried the bill. There was no vocal opposition. The bill received bipartisan support. “Part of this was thinking they could end-run me.”
Photograph: Brian Snyder/Reuters
In an attempt to pressure the governor to sign the bill, Decker held a press conference with firefighters. It was there she found out from a reporter that the ACC had a meeting with Baker, while supporters had not.
“How amazing to be that powerful. You get a meeting with the governor, we don’t,” said Decker. His office offered them a meeting the next day – not with the governor, but his staff.
The ACC asked for a carve-out for car seats, so the materials could still be sold with flame retardants, arguing it would be better for low-income consumers.
“It’s an insult,” said Decker. “I grew up low-income, public house, poor. To suggest that lower-income families should have dangerous choices, that they think that is an economic argument they can make – it’s gross.”
In response to questions from the Guardian, the ACC praised Baker’s “pragmatic approach” in reviewing the legislation, which it said was seriously flawed and “hurriedly passed”. “The bill would have undermined overall product safety and conflicted with existing fire safety regulations while also placing an undue burden on Massachusetts businesses and consumers.”
The ACC said it supported firefighters, including support for research into improving their health.
Higher-end furniture manufacturers in particular are responding to demand from consumers to produce furniture without the chemicals. Less fire-vulnerable furniture can be achieved by specific fabric weaves, without requiring flame retardant chemicals. However, the trend has yet to reach all, and in particular leaves low-income people out.
At the same time, while one state after another has attempted to ban flame retardants, they have repeatedly failed.
Out of 16 states which tried to pass flame retardant bans between 2017 and 2019, including Massachusetts, 12 did not succeed. The ACC was registered to lobby state representatives in 10 of those 12 states.
More than 100 lobbyists
With a massive influence operation and a $123m budget, the ACC has 109 lobbyists registered at 40 statehouses across the country, including some who registered in multiple states, and 56 more lobbyists registered in Washington DC, ready to dispatch when lawmakers proposed regulations on their industry.
Although the ACC is not a household name, it is currently better financed than well-known groups such as the National Rifle Association (NRA). The ACC has a budget more than 20% bigger than the gun rights group.
But unlike the NRA, it do not appear to work with a base of public support. Instead, they are financed by some of the world’s most powerful companies, who often supply valuable jobs in politicians’ jurisdictions.
They will send a lobbyist from DC to Hawaii at the most local level of city and county to try to stop plastic bans hereRafael Bergstrom
In states such as Hawaii, where lawmakers often lead the pack on legislation to reduce single-use plastics, the ACC hired eight lobbyists in the last five years. The group also monitors local jurisdictions.
“They will send a lobbyist from DC to Hawaii at the most local level of city and county to try to stop plastic bans here,” said Rafael Bergstrom, executive director of Sustainable Coastline Hawaii. Hawaii has been especially hard hit by plastic ocean debris, shards of which wash up knee-deep on the beaches of remote Hawaiian beaches.
“It’s very interesting, because where we’re trying to be very public-facing in our movement,” the ACC “hardly say anything in a public hearing”, said Bergstrom.
Close to politicians and regulators
Fleming, who has testified all over the north-east, told a similar story. “They hardly ever come to the public hearings,” he said. But in Massachusetts, “they end up getting meetings with the governor’s staff”.
In 2018, the ACC lobbied the federal government on infrastructure, opioids, plastic polystyrene, cosmetics and recycling. They lobbied on the clean power plan, bills to track water contamination and on ozone standards. They lobbied on microbeads and labels, and on the budgets of the Departments of Justice, Interior, Labor, Health and Human Services and the Environmental Protection Agency (EPA).
In the last three months of that year, the ACC hired or contracted 56 lobbyists in Washington DC alone to work on everything from marine debris to warning labels. Their in-house Washington lobbyists, not including contractors, cost $1.9m.
They donate to politicians and lobby across a half-dozen federal agencies. In just one example of their 2018 election spending, the group spent $938,000 supporting the Arizona senator Dean Heller, who lost his race, according to the Center for Responsive Politics and ProPublica.
They also maintain extremely close relationships with regulators. Regular emails fly back and forth between the ACC and the EPA, according to documents reviewed by the Guardian.
The former EPA administrator Scott Pruitt attended an ACC meeting at a luxury resort. The head of the EPA department tasked with regulating chemicals, Dr Jeff Morris, spoke at the ACC’s Washington DC conference.
The Trump administration nominated a candidate whose research has bolstered industry safety claims about flame retardants to head the EPA’s chemical safety division. Michael Dourson, a member of the ACC’s flame retardant scientific advisory board, withdrew his name from consideration after two senators said they would not support him because of his past industry connections.
The ACC runs a political action committee, which last year raised $857,000 (its highest total ever). Its contributors include American current and former senior management of ExxonMobil, Dow Chemical and Chevron Phillips Chemical. That money is spent predominantly on Republicans.
The ACC also set up the Mind the Science website targeting consumers and retailers last year. This is not to be confused with an actual grassroots group called Mind the Store, founded to get potentially dangerous chemicals out of shops. The ACC has also paid researchers, whose work later cast doubt on the dangers of flame retardants.
The ACC also works with groups such as the American Legislative Exchange Council, better known as Alec. For instance, the ACC, the Plastics Industry Alliance and Alec have all worked together recently to stop plastic bag bans by widely sharing model legislation through Alec.
The ACC said its membership in Alec is no different than “similar groups like the Council of State Governments, Women in Government, the National Council of State Legislatures and the Environmental Council of the States. These organizations help facilitate the exchange of ideas across the country concerning state public policy issues.”