BILL ANALYSIS Ó
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|Hearing Date:May 2, 2011 |Bill No:SB |
| |147 |
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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.
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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).
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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.
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"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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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