Turf Concerns Muddied by Faulty Reporting and Sloppy Advocacy

Correction: An earlier version of this story said Chairman Kaye has met with NIOSH. Rather, he has met with NIEHS.

While CPSC’s 2008 report and press release on lead exposure from synthetic turf do not reflect Chairman Elliot Kaye’s position or thinking on the question, reports suggesting this means the agency is reversing or backtracking on the matter are inaccurate. Rather, the small sampling used for that work does not support conclusions either way, CPSC spokesman Scott Wolfson told PSL, emphasizing either.

Kaye’s perspective, explained Wolfson, is part of the chairman’s larger view on acute and chronic chemical hazards as well as the role of partnerships with other agencies like NIEHS and EPA. Wolfson noted Kaye has reached out to such agencies. Last year, in the decisional meeting on the phthalates rulemaking (PSL, 12/22/14), Kaye laid out his dissatisfaction with the broad federal approach to such issues.

As for updating or changing the turf findings, CPSC does not have an active project for a fuller assessment, Wolfson said, noting resource and staffing limitations.

The 2008 report and release still are on CPSC’s website, but the report (as it always did) contains an explanation of its limitations, and the release now starts with a highlighted caution about those limitations, which also include lack of assessment of anything beyond lead, as well as reiteration of the original recommendation to wash hands after play.

The new attention was sparked by an April 28 press release from Public Employees for Environmental Responsibility (PEER) on the contents of a CPSC FoIA response. It alleged the documents show that the synthetic turf industry has inappropriate influence over the agency, including via “closed-door” meetings. However, when PSL sought details from PEER on such meetings, executive director Jeff Ruch provided eight pages that included an email from 2008 between CPSC staff with mention of a request by the Synthetic Turf Council (STC) for a closed meeting to discuss proprietary information. The email does not address whether the meeting occurred. Such closures are rare but allowed under CPSC’s meetings policy at 16 CFR 1012(d)(7). Ruch offered PSL access to the 1,200 page FoIA response to search for other examples. PSL did not do so, deeming it PEER’s responsibility to substantiate its claims, but asked Ruch to provide any other examples if he found them.

Other activities that PEER suggested were inappropriate:

• Industry representatives can provide information about their products directly to CPSC staff looking into safety.

   

• CPSC staff and commissioners last fall heard from industry following an NBC News piece that raised concerns about turf. The meeting was listed on the Public Calendar and was open to the public, including Washington, D.C.-based PEER, which did not attend. PSL did (11/3/14).

   

• A CPSC staffer joked “don’t chew on it” in a 2008 email discussing XRF readings for lead and chromium in a non-turf product (a tarp). Another staffer had raised the readings in the context of suggesting review of pigmented nylon and polyethylene/polypropylene fibers beyond turf. PEER emphasized that the 2008 lead reading in the non-children's product exceeded the CPSIA-based 100ppm content limit for children’s products that did not exist at the time of the email. PEER further suggested the 2008 quip “encapsulates” CPSC’s current attitude generally. "Chew” likely is a reference to CPSC’s FHSA-based approach at the time to lead content, which involved whether hand-to-mouth behavior, mouthing or ingestion by children led to release of the element from the product and transfer to their bodies. Later that year, the CPSIA required a strict content measure for children's products. (Industry maintains that units sold since 2009 comply with a 100pm limit.)

   

• A November 2014 email exchange among CPSC staff raised questions about – but did not answer – whether ASTM work cited by STC actually would address chemical content or just impact attenuation. PEER termed this exchange an example of “obfuscation.” It also alleged, “Industry representations to CPSC on voluntary standards to address chemical exposure of children in contact with these surfaces are exaggerated or untrue.” However, PSL found that the ASTM website shows the F08.65 subcommittee has four open work items on synthetic turf. Two (WK47006 and WK47007) address attenuation, but one (WK47207) targets sampling, and another (WK47821) focuses on health and environment concerns. As well, existing standard F2765 addresses lead content.

   

• An October 2014 CPSC staff email exchange indicated there had been no formal assessment by Office of Hazard Identification and Reduction staff of rubber mulch used on playgrounds (as opposed to crumb rubber in play fields). PEER said this is an indication of a “CPSC lack of toxicity data.” The email exchange, however, also noted that CPSC possesses research papers by others on the subject.

   

• PEER asserts that industry supplies “the principal information the U.S. Consumer Product Safety Commission uses to assess the health effects of synthetic turf.” While PEER does replicate recent industry slides (PSL, 11/3/14) presented to commissioners and others giving one company’s view on turf safety, the group does not provide evidence that CPSC did or will rely on such information or even that CPSC has made any assessments since 2008 regardless of information sources. 

PEER filed a FoIA suit earlier this year (PSL, 2/23/15) related to its December request about a possible Compliance Office review of crumb rubber on playgrounds. CPSC mentioned that possibility in a 2013 denial of a PEER petition that sought compliance activity, which the agency deemed inappropriate for a petition (as opposed to a rulemaking).

Also in 2013, CPSC denied both a request and appeal by PEER, under the Information Quality Act, to rescind and correct the 2008 report and release, saying the organization had not provided evidence why CPSC’s data were unreliable, why the analytic techniques were inappropriate, or what subsequent new data contradicted the work as claimed.

A 2012 General Counsel Office advisory opinion, in response to a PEER inquiry, explained that whether recycled tires (crumb rubber) would be deemed a children’s product would depend on intended use. That finding was in the context of the definition of children’s products in the CPSIA.

The PEER press release is at www.peer.org/news/news-releases/turf-lobbyists-cultivate-consumer-product-safety-commission.html.