Your black plastic spatula contains toxic flame retardants. This group is suing the EPA to stop it

When a recent study found that household items made of black plastic—from kitchen tools like spatulas to takeout containers and even children’s toys—contain toxic flame retardants, some took it as a sign of weak U.S. regulations around toxins. Now environmental law organization Earthjustice, representing a variety of community groups, is suing the Environmental Protection Agency, citing the agency’s inadequate rules and failure to protect both people and the environment.

The case is concerned with one particular flame retardant called decabromodiphenyl ether, or decaBDE, which that study discovered in a host of black plastic items. DecaBDE exposure has been linked to an increased risk of cancer; endocrine disruption; neurological harms, including impacts on memory and learning; and DNA abnormalities. Loopholes in the EPA’s regulations have allowed for continued exposure decaBDE, the lawsuit says. 

“The issue that is motivating this case is that the EPA has a legal duty to develop rules, under a law called the Toxic Substances Control Act, that will reduce all exposure to decaBDE for people and wildlife to the greatest extent practicable,” says Katherine O’Brien, a senior attorney in Earthjustice’s toxic exposure and health program and the lead attorney on this specific case. 

Congress has recognized decaBDE as toxic to people and wildlife. The flame retardant also lasts a long time in the environment, and can build up in our bodies over time. “What we might think of as a small exposure from, you know, cooking with a black plastic spatula, if you’re cooking with that spatula every day for years . . . and there’s also a little bit of decaBDE coming out of your computer monitor, once that chemical is in your body, you’re not going to be able to expel it quickly,” she says. “So those exposures adding up over time are really a concern.”

Why are flame retardants in black plastic kitchen spatulas?

Flame retardants have been used in all sorts of products for decades, from electronics like computers to toasters to plane parts. The EPA did ban decaBDE in 2021—but O’Brien notes that it wasn’t a total ban, because the agency’s rule still allows for many years of the toxin’s use through lengthy phase-out periods. People can still be exposed after a chemical is banned by using products that were made before the ban, and because there are no regulations around recycling those contaminated products.

Recycling is how decaBDE likely got into black plastic products like kitchen spatulas and sushi containers. Experts say that black plastics from electronics, which use flame retardants, likely entered recycling streams. 

“For decaBDE, currently there are no restrictions that would limit companies’ ability to use plastic that’s very contaminated with decaBDE to make recycled content products,” says O’Brien, who wants the EPA to impose such restrictions, following the European Union’s lead. Countries in the EU specify that if plastic contains a certain amount of toxic flame retardants, it can’t be recycled because of the risk of it being turned into a new product. That toxic plastic would then be separated out from other plastics in the recycling stream.

“That’s the type of thing we’d like to see in the U.S., so we don’t have the findings that were in that Chemosphere article showing really high levels of flame retardants in products like food contact materials and toys and kitchen utensils, where no one ever intended for flame retardants to be present,” O’Brien says.

Who is suing the EPA over decaBDE?

In its lawsuit, Earthjustice is representing the Yurok Tribe, Alaska Community Action on Toxics, the Center for Environmental Transformation, and the Consumer Federation of America. These are some of the groups most at risk of both exposure and harm from decaBDE. 

The groups are concerned with exposure to decaBDE not only through products made of recycled black plastic, but also through sewage sludge, wastewater, and recycling facilities. The EPA’s weak rules mean that decaBDE continues to contaminate land and water around the country.

“When all of these products [containing flame retardants] are thrown away, usually in incinerators or landfills, that decaBDE can be released into the environment through those disposal practices,” O’Brien says. When plastic that contains decaBDE is recycled, that also risks exposing workers at recycling facilities, as well as the people who live nearby (because the chemical can get into air and wastewater).

One concern of the Yurok Tribe in California, for example, is decaBDE exposure in salmon, which is a major part of their tribal economy. O’Brien also notes that decaBDE can travel through the air, ending up far from places where it’s released. That’s one reason why the Arctic region is considered the area most contaminated with flame retardants, posing a particular risk to wildlife there. 

What’s next for the lawsuit against the EPA

Earthjustice has sued the EPA over its weak decaBDE regulations before, back in 2021 in the final days of the Trump administration. When President Joe Biden took office, his administration promised to take a second look at the rules, at which point Earthjustice paused its litigation.

While there were some amendments to the original rules, the Biden administration failed to make “meaningful improvements,” O’Brien says, which is why the group is filing this new case. Officials have said the current law provides enough protections, and doing any more would be too difficult. O’Brien contends that’s not the case, pointing out that other countries have taken stronger steps.

O’Brien says Donald Trump’s return to the presidency in 2025 does pose some concerns for this effort. “But part of our goal in litigation,” she notes, “is to get a clear directive from the court about what EPA’s obligations are under the law that would constrain the Trump administration’s ability to evade these legal requirements.”

Though the lawsuit could have a significant impact on sources of decaBDE exposure, it’s likely to take a long time. The arguments will be heard by the 9th U.S. Circuit Court of Appeals, and O’Brien expects a “lengthy legal proceeding.”

But DecaBDE is far from the only toxic chemical present in common household products or the air we breathe and water we drink. There are other types of flame retardants in furniture and car parts, for example, as well as chemicals like PFAS and formaldehyde.

“In 2025, the EPA is going to be called upon to evaluate and regulate many chemicals that pose serious threats to people’s health across the country,” O’Brien says. “How the Trump EPA chooses to respond to its obligations is going to be enormously consequential. . . . In addition to this case, I think there will be many others to watch closely.”