BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:May 2, 2011 |Bill No:SB | | |147 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Curren D. Price, Jr., Chair Bill No: SB 147Author:Leno As Amended:March 25, 2011 Fiscal: Yes SUBJECT: Furniture. SUMMARY: Requires the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation, on or before March 1, 2013, to modify Technical Bulletin 117 regarding product standards for fire retardant furniture to include a smolder flammability test to provide an alternative method of compliance that can be met without the use of chemical fire retardants and does not compromise fire safety; requires the Bureau, in developing the smolder flammability test, to consider the draft smolder standard proposed by the federal Consumer Product Safety Commission, to take into consideration the cost to manufacturers and consumers, and amend existing label specifications to identify any products meeting that adopted standard. The bill further authorizes the Bureau Chief to additionally exempt polyurethane foam from the fire retardant requirements, as specified. NOTE : This measure failed passage in this Committee on April 25, 2011, by a vote of 1-8, and was granted reconsideration. It is before this Committee today for Reconsideration and "Vote-Only." Existing law: 1) Establishes the Home Furnishings and Thermal Insulation Act (Act), administered by the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation (Bureau) within the Department of Consumer Affairs (DCA). The Bureau is under the supervision and control of a Chief appointed by the Governor, and the Chief is under the supervision and control of the Director of DCA. SB 147 Page 2 2) The Act provides for the licensing and inspection of businesses that manufacture and sell upholstered furniture, bedding and thermal insulation, and requires all mattresses and box springs manufactured for sale in this state to be fire retardant, as defined to meet the federal standards for resistance to open-flame test, and authorizes the Bureau to adopt regulations to implement those standards. (Business and Professions Code (BPC) § 19161) 3) The Act requires other bedding products to comply with regulations adopted by the Bureau specifying that those products be resistant to open-flame ignition, requires all seating furniture to be fire retardant and labeled as specified. (BPC § 19161) 4) Requires all flexible polyurethane foam, except as specified, that is offered for retail sale to be fire retardant, and defines fire retardant to mean a product that meets the regulations adopted by the Bureau. (BPC § 19161.3) 5) Authorizes the Chief, subject to the approval of the Director of DCA, to exempt items of upholstered furniture which are deemed not to pose a serious fire hazard from the fire retardant requirements. (BPC § 19161.5) 6) Bureau regulations, establish flame retardant tests for the filling materials of residential upholstered furniture. Specifically, Bureau regulations require filling materials labeled as ''flame resistant,'' ''flame retardant'' to be tested and meet the requirements of TB 117. (Article 13, Division 3, Title 4, California Code of Regulations, commencing with § 1370) This bill: 1) Requires the Bureau, on or before March 1, 2013, to modify Technical Bulletin 117 (TB 117) regarding product standards for fire retardant furniture to include a smolder flammability test to provide an alternative method of compliance that can be met without the use of chemical fire retardants and does not compromise fire safety. 2) Requires the Bureau, in developing the smolder flammability test, to do the following: a) Consider the draft smolder standard proposed by the federal Consumer Product Safety Commission (16 C.F.R. Part 1634, as published in the Federal Register on March 4, 2008). SB 147 Page 3 b) Take into consideration the cost to manufacturers and consumers. c) Amend existing label specifications to identify any products meeting that adopted standard. 3) Authorizes the Bureau Chief to additionally exempt polyurethane foam from the fire retardant requirements, as specified. FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by Legislative Counsel. COMMENTS: 1. Purpose. This bill is sponsored by the following organizations: Commonweal Consumer Federation California Friends of the Earth Green Science Policy Institute Health Officers Association of California (HOAC) Just Transition Alliance Physicians for Social Responsibility-Los Angeles (PSR-LA) SF Baykeepers Trauma Foundation The Author states the need for the bill as follows: "Current flammability regulations contain outdated test protocols that do not test the flammability of the upholstered product which is comprised of fire resistant fabric and construction technology that provide the primary defense against fire. As currently drafted, TB 117 test protocols expose bare foam to an open flame from a Bunsen burner, rather than the more likely scenario of a smolder source (such as a cigarette) on an upholstered product. As a result, current regulations lead to an unsafe reliance on flame retardants to meet TB 117. Reliance of fire retardants may increase risk of fire injury and death through the significantly increased production of carbon monoxide, smoke and soot in the event of a fire. Fire toxicity related to smoke, soot and carbon monoxide is the leading cause of fire injury and death. "In addition to diminished fire safety due to increased fire toxicity, flame retardants pose a serious hazard to pregnant women and young children who are the most vulnerable to endocrine disruptors, carcinogens, mutagens, and neurological and reproductive toxins. SB 147 Page 4 "Flame retardants escape from products into dust and are ingested by humans and animals. Levels of these chemicals have increased 40-fold in human breast milk since the 1970's. "Advanced construction technologies and ignition resistant fabrics are significantly more effective at preventing fires. These technologies, combined with the development and mandate of fire safe cigarettes, have led to a dramatic decline in the number of residential fires. "Other, more effective flammability standards exist, including the Federal Consumer Product Safety Commission's draft standard, which do not require the use of fire retardant chemicals." 2. Background. Since 1975, the Bureau has developed several flammability standards, called technical bulletins. These performance-based standards do not prescribe the use of flame-retardant chemicals, manufacturing methods, or specific materials to meet the standards. Bureau regulations require that all filling materials contained in any article of upholstered furniture, and all filling materials added to reupholstered furniture, shall meet the test requirements as set forth in the State of California, Bureau of Home Furnishings Technical Bulletin Number 117, entitled ''Requirements, Test Procedures and Apparatus for Testing the Flame Retardance of Filling Materials Used in Upholstered Furniture,'' dated March 2000. TB 117 is a flammability standard required for all upholstered seating furniture products. This standard was originally adopted in 1975 in California. The Bureau requires manufacturers to make upholstered furniture and bedding products sold in California flame-retardant. The Bureau encourages the industry to use innovative solutions and products to achieve flame resistance without compromising the environment. Manufacturers must strictly adhere to state and federal laws governing the manufacture and sale of upholstered furniture and bedding products. In the event of a residential fire, these products act as a significant fuel source and are difficult to extinguish once ignited. The Bureau measures flame retardance in accordance with flammability standards developed by the Bureau or the United States, Consumer Products Safety Commission (CPSC). The Author indicates that TB 117 enacts a unique flammability SB 147 Page 5 standard which, as currently drafted, is designed to test polyurethane foam used inside of upholstered furniture by submitting the foam to a 12 second open flame test. Until 2004, manufacturers primarily met this requirement with penta-brominated diphenyl ether (pentaBDE), a brominated flame retardant. In 1999, North America accounted for 98% of global pentaBDE usage, believed to be largely because of TB117. California banned PentaBDE in 2003, and the manufacturer ceased production in 2004. Other organohagen flame retardants continue to be used as they are the least expensive way to meet the flammability standard TB117. The Author further states that federal law pursuant to the Flammable Fabrics Act 16 C.F.R. Part 1633 requires mattresses and mattress sets to meet specified flammability standards. However, these provisions explicitly exclude upholstered furniture. The Author indicates that Federal law, through the Federal Consumer Product Safety Commission, has drafted a smolder based flammability standard 16 C.F.R. Part 1634, as published in the Federal Register on March 4, 2008. 3. Recent Study of Concentrations of Flame-Retardant Chemicals in Children. On Friday, April 15, 2011, the journal, Environmental Health Perspectives, published a study by UC Berkley researchers which found that California children have seven times more flame-retardant chemicals in their blood than children born in Mexico. The study titled, Comparison of PBDE Serum Concentrations in Mexican and Mexican-American Children Living in California, compared serum Polybrominated diphenyl ethers (PBDE) concentrations in 264 first generation Mexican-American 7-year old children who were born and raised in California, with 283 5-year old Mexican children who were raised in the states in Mexico where most of the mothers of the California-raised children had originated. On average PBDE blood serum concentrations in the California Mexican-American children were three times higher than their mothers' levels during pregnancy and seven times higher than concentrations in the children living in Mexico. Researchers cited prior research which indicated that the higher levels of concentration were likely due to absorption of household dust through the skin, breast milk and hand-to-mouth contact. Researchers note that PBDE has been linked to a number of reproductive problems, including lower sperm count in men and couples taking a longer time to get pregnant. The chemical is also linked to altered thyroid levels in adults, infants and felines. SB 147 Page 6 The researchers further indicated that the flame retardants in California homes and residences may be an unintended consequence of government regulation, citing TB 117. Ultimately, the report states the following conclusions: "Latino children living in California have much higher PBDE serum levels than their Mexican counterparts. Given the growing evidence documenting potential health effects of PBDE exposure, the levels in young children noted in this study, potentially presents a major public health challenge, especially in California. In addition, as PBDEs are being phased out and replaced by other flame retardants, the health consequences of these chemical replacements should be investigated and weighed against their purported fire safety benefits." 4. Smolder Flammability Test. This bill requires the Bureau in revising TB 117 to include a smolder flammability test to provide an alternative method of compliance that can be met without the use of chemical fire retardants and does not compromise fire safety. Such a standard consistent with the draft smolder standard proposed by the federal CPSC, as specified, could require manufacturers of upholstered furniture to choose one of two methods of compliance: (1) use upholstery materials that are sufficiently smolder resistant to meet a cigarette ignition performance test; or (2) place fire barriers that meet smoldering and open flame resistance tests between the cover fabric and interior filling materials. In the past, the Bureau has indicated that it might consider giving the choice of either using fire resistant fillings that are proven to be also safe in regards to health effects or using fire barriers to fully encase foam padding inside their furniture. The Bureau has indicated that there are a number of highly fire resistant, affordable and environmentally safe fire barriers in the forms of fabrics, pads or battings which furniture manufacturers could use in making furniture highly fire safe. The Bureau has said, "Many such products, particularly pads and battings can simply replace the standard synthetic battings that are often wrapped around foam pads that are used in upholstered furniture." However, the American Home Furnishings Alliance (AHFA), representing the home furnishings industry suggests that establishing a barrier fire safety standard would essentially double their product and labor prices, essentially driving them out of business, or making them raise prices beyond the price point at which consumers would want to buy them. AHFA indicates that a barrier standard would cause manufacturers to have to cover foam padding twice; once for SB 147 Page 7 the barrier and a second time for the outer upholstery. This raises material costs, but more importantly adding a barrier cover would add to the manufacturers' labor costs, essentially requiring a couch or other upholstered furniture to be covered twice. 5. Green Chemistry Initiative. The California Green Chemistry Initiative was launched in 2007, as an effort by Cal/EPA, and the California Department of Toxic Substances Control (DTSC). Goals of the Green Chemistry Initiative include developing a consistent means for evaluating risk, reducing exposure, encouraging less-toxic industrial processes, and identifying safer, non-chemical alternatives. In December, 2008, DTSC released its California Green Chemistry Initiative "Final Report," which included six policy recommendations for establishing a comprehensive green chemistry program in California. Since that time, a Green Ribbon Science Panel was created (AB 1879, Feuer, Chapter 559, Statutes of 2008) to advise the DTSC, regarding science and technical matters for reducing adverse health and environmental impacts of chemicals used in commerce, encouraging the redesign of products, manufacturing processes, and to assist in developing green chemistry and chemicals policy recommendations and implementation strategies; and advise DTSC on the adoption of regulations and priorities regarding hazardous chemicals. Ultimately the work of DTSC in conjunction with the Green Chemistry Initiative and the Green Ribbon Science Panel appears to have the potential to make the changes envisioned by the current bill irrelevant, or even misplaced. However, proponents of the bill are quick to argue that the results from the green chemistry efforts regarding fire retardants and environmental safety are still years away from showing fruitful results, and the recommendations could replace one fire retardant with another that may have as bad or worse an impact on health concerns. 6. Phase Out of Chemicals. Opponents of the bill have pointed out that chemicals such as DecaBDE are being phased out through agreements between The Federal Environmental Protection Agency and the chemical industries. Although these steps are acclaimed by all as being appropriate measures to take to help protect human health and the environment, proponents of this bill point out that the chemical industry typically replaces one phased out chemical with another that is configured slightly differently, and the concern over the health hazards of the new chemical still remains. SB 147 Page 8 7. Prior Legislation. SB 1291 (Leno) of 2010, would have required the Department of Toxic Substances Control to include, as a chemical under consideration, any chemical that is used, or is proposed to be used, as a flame retardant, in accordance with the review process (Green Chemistry Process) under the current chemical of concern regulations. That bill was placed on the inactive file on the Senate Floor and died on file. SB 772 (Leno) of 2009, would have exempted "juvenile products," as defined, from the fire retardant requirements pursuant to federal law and the regulations of the Bureau of Home Furnishings and Thermal Insulation (Bureau), except that the Bureau could have, by regulation modifed this exemption if the Bureau determined that any juvenile products posed a serious fire hazard. That bill died in the Assembly Appropriations Committee. Note : the provisions of this bill have been largely implemented through regulation by the Bureau effective December 29, 2010. AB 706 (Leno) of 2008, commencing July 1, 2010, would have required bedding products to comply with certain requirements, including that they not contain a chemical or component not in compliance with alternatives assessment requirements as specified, and required the DTSC to develop and adopt methodology for the coordination and conduct of an alternative assessment to review the classes of chemicals used to meet the fire retardancy standards set by the Bureau, and to meet other requirements as specified. That bill failed passage on the Senate Floor. AB 302 (Chan, Chapter 205, Statutes of 2003) banned the use of penta and octa brominated diphenyl ethers after January 1, 2008. 8. Arguments in Support. The numerous supporters of this bill argue that biomonitoring studies show that toxic flame retardants are now routinely found in the bodies of humans across North America, and at the highest levels in California. The chemicals migrate from consumer products into dust and make their way into humans, pets, wildlife and the food supply. Testing of umbilical cord blood shows that our babies are born pre-polluted with toxic flame retardants, and proponents affirm that California's ineffective furniture flammability standard is the major cause of this problem. They further argue that "dozens of peer reviewed scientific research studies link fire retardant chemicals to cancer, neurological impairments, reproductive problems, thyroid effects, and endocrine disruption. Toddlers, who are particularly vulnerable, often have a 3 times higher level of flame retardants in their bodies compared to their parents, and California children SB 147 Page 9 have some of the highest levels of some toxic flame retardants in their bodies." In sponsoring the bill, Health Officers Association of California (HOAC), argues that under current law, furniture sold in California must meet specific flammability standards that, in effect, require the incorporation of dangerous chemicals known as Halogenated Flame Retardants into our household furniture in quantities measured in pounds. Chemically related to both PCB's and dioxins - some of the most toxic and persistent chemicals in our environment - these Halogenated Flame Retardants have been linked to hormone disruption, reproductive toxicity, and cancer according to HOAC. Also sponsoring the bill, the Consumer Federation of California , states that in February 2010, "the Environmental Protection Agency recommended that consumers avoid products that are labeled as meeting California's TB 117. The chemicals required to be used for fire retardant home furnishings as required by TB 117 are associated with endocrine disruption, neurological and developmental impairments, cancer, reduced IQ and infertility." Trauma Foundation also sponsors the bill writing that in 1979, the Trauma Foundation launched an educational and advocacy campaign to regulate cigarettes as a fire hazard. Since cigarette ignitions of furniture and other products are the leading cause of fire death in California and the nation, modifying cigarettes to guarantee that they "self extinguish" when dropped on bedding, mattresses or furniture became the goal of the campaign. The campaign came to fruition in California when Gov. Schwarzenegger signed legislation on October 7, 2005 that mandated all cigarettes sold in California after January 1, 2007, meet a fire safety performance standard to prevent furniture fires. Since 2007, the same performance standard has become law in all 50 states. Finally, the national fire data is detecting significant declines in cigarette ignited furniture fires. Trauma Foundation cites the John R. Hall, of the National Fire Protection Association, Fire Analysis and Research Division, stating: "...it is currently projected that smoking-material (cigarette) structure fire deaths will be down by 56-77% from 2003, the last year before any state implemented the fire safe cigarette law." Trauma Foundation suggests that because of the public health success of fire safe cigarettes, attention must be focused on modifying the out-dated furniture fire standard TB 117. Currently, to comply with TB 117, toxic flame retardants are used. It is no longer necessary to force the foam and furniture industry to comply with a fire standard that can only be met by the introduction of toxic compounds. Fire safe cigarettes (and the overall reduction SB 147 Page 10 in cigarette smoking) necessitates that TB 117 be modified to reflect new circumstances according to Trauma Foundation. American Home Furnishings Alliance (AHFA), the world's largest trade organization representing the home furnishings industry, supports the bill, stating that TB 117 focuses on small open flame ignition sources, and cites the CPSC in arguing the TB 117 does not provide meaningful improved performance. AHFA, instead suggests that a balance should exist between fire and chemical risks, and that a focus on smolder resistant materials would be a good guiding principle. This would help to transition California toward the likely national approach to upholstered furniture regulation, according to AHFA. Vytenis Babrauskas, Ph.D., President of Fire Science and Technology, Inc ., researcher and former head of the combustion toxicology program for the National Institute of Standards and Technology states that "from a fire safety point of view-the TB117, as it is presently written, is a useless test method." Dr. Babrauskas, states, "For the fire hazard properties of a consumer product to be improved, one of two things (or both) must be done: (1) it must be made resistant to ignition from small-flame sources; or, (2) when it does get ignited (from flames that may not necessarily be small), its heat release rate must be substantively decreased, since heat release rate is not only a direct hazard to persons, but is correlated to the production of various toxic smoke components. The current TB117 test does neither: it does not result in furniture being resistant to small-flame ignition, nor does it result in furniture having a significantly reduced heat release rate." Dr. Babrauskas, concludes that it is clear that the Bureau of Home Furnishings and Thermal Insulation should fundamentally revise the existing TB117 standard so that neither people nor the environment is exposed to toxic harm from chemicals that do not serve a valid fire safety purpose. 9. Arguments in Opposition. Joe Kerr, President, Orange County Professional Firefighters Association , argues that the bill undermines California's vanguard fire safety standards, stating, "In a state that now is considered to have a year-round fire season, weakening our fires safety standards is not the direction California's legislation should go." Teamsters Local Union No. 63 (Local 63) writes that it cannot endorse a measure that would increase the risk to workers, and that the SB 147 Page 11 bill will set back decades of safe and effective laws that force manufacturers to produce U.S. made products that allow for valuable minutes to save lives and let firefighters stop fires. Local 63 further argues that the test this law would change ignores the most important sources of fires in the home; candle fires, electrical fires, children playing with fire and kitchen fires. Alicia Hamilton of TRNTV and Dr. Alexander Hamilton, of the Community Baptist Church , Compton, writes, "That due to the common differences of research it shows that fire has a far greater devastation within minority groups than other factions." They further quote John Hall, Jr. of the National Fire Protection Association's Research Division, "Race and ethnicity tend to be highly correlated with fire death rates . . . the most statistically powerful predictors of fire death risk are, in order, race, education, and poverty." Citizens for Fire Safety Institute (CFFSI) representing manufacturers of fire safety products, as well as burn safety physicians, medical burn centers and fire safety education groups opposes the bill arguing that it would change California' s flammability fire safety standard, which is generally regarded as the highest fire safety standard in the country. CFSI lists a number of reasons for its opposition: (1) CFFSI argues the bill compromises fire safety, by requiring that the Bureau adopt a "lesser" fire safety standard ("smolder" versus "flammability"). CFSI indicates that national fire statistics show that open flame is the second leading cause of fires resulting in death. Changing California's fire safety standard to a "smolder" test will result in a lower fire safety standard and could place many individuals and residences at greater risk in the event of a fire. (2) CFSI states that by requiring the Bureau to adopt a "smolder" test standard that does not require the use of chemical fire retardants and does not "compromise fire safety" the bill creates an inherent conflict for the Bureau in the statute. (3) CFSI further argues the bill is the wrong policy, stating as recent at 2007, the U.S. Consumer Product Safety Commission adopted a flammability standard, similar to California's standard, for all mattresses sold in the U.S., choosing "flammability" as the highest level of protection for consumers. The U.S. Fire Administration recommends to consumers that one important step they can take to protect themselves and their families is to purchase mattresses SB 147 Page 12 which meet this standard. (4) CFSI further suggests by requiring the Bureau to change the current labeling for upholstered furniture in California, the bill would create a source of confusion, for consumers. CFSI argues that when purchasing mattresses, California consumers would continue to see the "flammability standard" label required by federal law, yet when purchasing other furniture consumers would see a different label reflecting a "smolder" standard. This will lead to confusion for consumers on how to best protect themselves and their families, according to CFSI. SUPPORT AND OPPOSITION: Support : Commonweal (Sponsor) Consumer Federation of California (Sponsor) Friends of the Earth (Sponsor) Green Science Policy Institute (Sponsor) Health Officers Association of California (Sponsor) Just Transition Alliance (Sponsor) Physicians for Social Responsibility-Los Angeles (Sponsor) Trauma Foundation (Sponsor) American Congress of Obstetricians and Gynecologists, District IX American Home Furnishings Alliance Architects, Designers and Planners for Social Responsibility, Northern California Chapter Asian Pacific Environmental Network BANANAS, Inc. Black Women for Wellness Breast Cancer Action Breast Cancer Fund Breathe California California Association of Sanitation Agencies California Professional Firefighters Californians for a Healthy and Green Economy Center for Environmental Health Clean Water Action Consumer Attorneys of California East Yard Communities for Environmental Justice Environment California Environmental Working Group Fire Science and Technology Inc. Healthy Building Network SB 147 Page 13 Herman Miller, Inc. International Association of Firefighters Just Transition Alliance Los Angeles Metropolitan Churches MomsRising.org Natural Resources Defense Council Polyurethane Foam Association San Diego Coastkeeper San Francisco Public Utilities Commission Sierra Club California Silicon Valley Toxics Coalition Stentorians of Los Angeles County Trendway Corporation United States Green Building Council, California Advocacy Committee Opposition : Citizens for Fire Safety Institute Community Baptist Church, Compton National Association of State Fire Marshals Orange County Professional Firefighters Association Shriners Hospitals for Children, Northern California Teamsters Local Union No. 63 TRNTV Consultant:G. V. Ayers