BILL NUMBER: SB 1019 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 10, 2014
AMENDED IN SENATE MAY 27, 2014
AMENDED IN SENATE APRIL 21, 2014
AMENDED IN SENATE MARCH 24, 2014
INTRODUCED BY Senator Leno
FEBRUARY 14, 2014
An act to add Section 19094 to the Business and Professions Code,
relating to business.
LEGISLATIVE COUNSEL'S DIGEST
SB 1019, as amended, Leno. Upholstered furniture: flame retardant
chemicals.
Existing federal law requires the Consumer Product Safety
Commission to institute proceedings for the determination of an
appropriate flammability standard if the commission finds that such a
standard, including labeling, for a fabric, related material, or
product, may be needed to protect the public. Existing federal law
authorizes a state to establish a flammability standard if, among
other things, it provides a higher degree of protection from the risk
of fire.
Existing state law, the Home Furnishings and Thermal Insulation
Act, provides for the licensure and regulation of upholstered
furniture manufacturers by the Bureau of Electronic and Appliance
Repair, Home Furnishings, and Thermal Insulation. Existing state law
requires every upholstered-furniture manufacturer to hold a furniture
and bedding manufacturer's license. Existing state law also requires
every upholstered-furniture retailer to hold a retail furniture
dealer's license. A violation of the act is a crime and each offense
is punishable by a fine, as specified.
Existing state law requires certain upholstered
furniture and bedding to contain a specified label
that is securely fastened in a manner approved by the
bureau permanently attached in an area open to
visible view. Existing state law establishes a standard to produce
upholstered furniture which is safer from the hazards associated with
smoldering ignition. This standard provides methods for smolder
resistance of cover fabrics, barrier materials, resilient filling
materials, and decking materials for use in upholstered furniture.
This bill would require a manufacturer of covered products, as
defined, to indicate whether or not the product contains added flame
retardant chemicals, as defined, by including a specified statement
on that label.
The bill would require the manufacturer of the covered product to
retain sufficient documentation to show whether flame retardant
chemicals were added to a covered product or component. The bill
would provide that a written affidavit
statement by the supplier of each component attesting that
flame retardant chemicals were added or not added is sufficient to
make this showing. The bill would require the bureau to assess a fine
for a violation of the documentation requirement,
requirement or for failure to provide, upon request, the
required documentation to the bureau, as specified.
The bill would require a manufacturer of a covered product sold in
California, upon request, to provide to the bureau, within 30 days
of the request, documentation establishing the accuracy of the flame
retardant chemical statement on the label. The bill would require the
bureau to provide the Department of Toxic Substances Control with
samples of the covered product or components thereof sold in
California from products marked "contain NO added flame retardant
chemicals" for testing for the presence of added flame retardant
chemicals, as specified. If the department's testing shows that a
covered product labeled as "contain NO added flame retardant
chemicals" is mislabeled because it contains added flame retardant
chemicals, the bill would require the bureau to assess fines for
violations against manufacturers of the covered product and component
manufacturers, as specified.
The bill would require the bureau to make information about any
citation issued pursuant to its provisions available to the public on
its Internet Web site. The bill would also make it the duty of the
bureau to receive consumer complaints.
The bill would authorize the bureau to adopt regulations to carry
out these provisions.
Because a violation of the bill's requirements would be a crime,
the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) In 1975, California implemented Technical Bulletin 117, which
requires that materials, such as polyurethane foam, used to fill
furniture be able to withstand a small open flame for at least 12
seconds.
(b) Flame retardant chemicals are used widely in upholstered
furniture to meet the flame retardant standards of the Bureau of
Electronic and Appliance Repair, Home Furnishings, and Thermal
Insulation's Technical Bulletin 117.
(c) People are exposed to flame retardant chemicals in multiple
ways, including when the chemicals migrate from furniture and other
consumer products into air and dust in the home or workplace.
(d) Some of these chemicals can persist in the environment,
bioaccumulate in people and animals, and have been shown to cause
adverse developmental effects in animals and humans.
(e) A study by the California Environmental Protection Agency
found that women in California have much higher levels of toxic flame
retardants in their breast tissue than women in other states and
countries. Studies published in the journal of Environmental Research
show that children in California have much higher levels of flame
retardant chemicals than children elsewhere in the country.
(f) A study published in the Journal of Occupational and
Environmental Medicine concluded that firefighters have a
significantly elevated risk of cancer that may be attributed to toxic
chemicals they inhale, including flame retardants.
(g) California consumers have become increasingly concerned about
the potential adverse human health impacts due to exposure to certain
chemical flame retardants. Various studies have linked exposure to
flame retardants to cancer, lower IQs and attention problems, male
infertility, male birth defects, and early puberty in girls.
(h) In 2012, the Chairman of the federal Consumer Product Safety
Commission testified to Congress that "the fire-retardant foams did
not offer a practically significant greater level of open flame
safety than the untreated foams."
(i) In 2012, the Chicago Tribune newspaper published a series of
investigative reports that showed that the claims of the efficacy of
flame retardants in furniture misrepresent the science.
(j) In 2012, Governor Brown asked the Bureau of Electronic and
Appliance Repair, Home Furnishings, and Thermal Insulation to review
the state's four-decade-old flammability standards and recommend
changes to reduce toxic flame retardants while continuing to ensure
fire safety.
(k) The Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation concluded that the
presence of flame retardant chemicals in furniture does not provide a
meaningful fire safety benefit. "studies show that
fire retardant (FR) tested foam does not provide a meaningful
difference in egress time from non-FR foam and increases smoldering
propensity. " In 2013, the Bureau of Electronic and
Appliance Repair, Home Furnishings, and Thermal Insulation
promulgated regulations, revising Technical Bulletin 117 to allow
furniture manufacturers to meet a smoldering standard. The revised
Technical Bulletin 117-2013 provides improved fire safety standards
without the use of flame retardant chemicals.
(l) California consumers have voiced a desire to purchase
furniture that complies with Technical Bulletin 117-2013 but does not
contain flame retardant chemicals.
(m) Technical Bulletin 117-2013 can be met with or without the use
of flame retardant chemicals, but consumers currently have no way to
know whether flame retardant chemicals have been added to the
product.
(n) Upholstered furniture manufacturers and California's retail
industry recognize the intrinsic value of helping consumers make
knowledgeable buying decisions and are uniquely positioned to take
the lead in building trust in the marketplace. Providing information
on the use of chemical flame retardants in upholstered furniture
gives retailers a unique opportunity to respond to the needs of their
customers. Consumers want to be able to exercise an informed choice
and buy products that are not only safer for themselves and their
families, but are products that will also keep our firefighters
safer.
(o) It is, therefore, the intent of the Legislature in enacting
this measure to provide California consumers clear information about
the furniture products they are purchasing, specifically concerning
compliance with fire safety standards and the absence or presence of
added flame retardant chemicals.
SEC. 2. Section 19094 is added to the Business and Professions
Code, to read:
19094. (a) For the purposes of this section, the following
definitions shall apply:
(1) "Component" means the separate constituent parts of
upholstered furniture sold in California, as identified in Technical
Bulletin 117-2013, specifically cover fabrics, barrier materials,
resilient filling materials, and decking materials.
(2) "Covered products" means any flexible polyurethane foam or
upholstered or reupholstered furniture sold in California that is
required to meet the test requirements set forth in Technical
Bulletin 117-2013, entitled "Requirements, Test Procedure and
Apparatus for Testing the Smolder Resistance of Materials Used in
Upholstered Furniture."
(3) "Added flame retardant chemicals" means flame retardant
chemicals that are present in any covered product or component
thereof at levels above 1,000 parts per million.
(4) "Department" means the Department of Toxic Substances Control.
(5) "Consumer Price Index" means the Consumer Price Index for All
Urban Consumers published by the Bureau of Labor Statistics.
(b) (1) A manufacturer of covered products shall indicate whether
or not the product contains added flame retardant chemicals by
including the following "flame retardant chemical statement" on the
label described in Section 1126 1374.3
of Title 4 of the California Code of Regulations for covered
products:
"This product meets California's furniture fire safety standard
and the upholstery materials:
_____contain added flame retardant chemicals
_____contain NO added flame retardant chemicals
The Bureau of Electronic and Appliance Repair, Home Furnishings,
and Thermal Insulation found that flame retardant chemicals in
furniture do not provide a meaningful fire safety benefit. According
to the Centers for Disease Control and Prevention (CDC), such flame
retardant chemicals can migrate into air and dust where people can be
exposed to them."
"The upholstery materials in this product:
_____contain added flame retardant chemicals
_____contain NO added flame retardant chemicals
The State of California determined that the fire safety
requirements for this product can be met without adding flame
retardant chemicals. The state has identified many flame retardants
as being known to, or strongly suspected of, adversely impacting
human health or development."
A manufacturer of covered products shall indicate the absence or
presence of added flame retardant chemicals by placing an "X" in one
of the appropriate blanks.
(2) This statement shall be included in the label described in
Section 1126 1374.3 of Title 4 of the
California Code of Regulations in accordance with the bureau's
regulations for that label. The statement need not be in all
capital letters, and shall follow the statement required by Section
1374.3 of Title 4 of the California Code o f Regulations.
(c) (1) The manufacturer of the covered product sold in California
shall retain documentation to show whether flame retardant chemicals
were added. A written affidavit statement
by the supplier of each component covered by Technical Bulletin
117-2013 attesting either that flame retardant chemicals were added
or not added shall be sufficient documentation.
(2) The bureau shall ensure compliance with the labeling and
documentation requirements in this section.
(3) (A) Upon request, a manufacturer of a covered product sold in
California shall provide to the bureau, within 30 days of the
request, documentation establishing the accuracy of the flame
retardant chemical statement on the label required by subdivision
(b).
(B) The bureau shall assess fines of not less than two thousand
five hundred dollars ($2,500) but not more than fifteen thousand
dollars ($15,000) in accordance with the factors described in
subdivision (d) for the failure of the manufacturer of the covered
product to maintain the documentation required by this
section section, or for the failure of the
manufacturer of the covered product to provide, upon request, the
documentation required by this section to the bureau . These
fines shall replace any other fines in this article for a violation
of the documentation requirements of this section. This subparagraph
does not alter or amend any other penalty otherwise imposed by this
article.
(C) A manufacturer of covered products and component suppliers
shall be jointly and severally liable for violations of the
documentation required in this section.
(D) The bureau shall provide the Department of Toxic Substances
Control with a selection of samples from covered products marked
"contain NO added flame retardant chemicals" for testing for the
presence of added flame retardant chemicals. The samples shall be
from the components identified in paragraph (1) of subdivision (a).
The bureau shall select samples based on consultation with the
department, taking into account a range of manufacturers and types of
covered products. The bureau and the department shall consult on the
tests to be conducted by the department. The department shall
provide the results of any completed test to the bureau.
(E) (i) If the department's testing shows that a covered product
labeled as "contain NO added flame retardant chemicals" is mislabeled
because it contains added flame retardant chemicals, the bureau may
assess fines for violations against manufacturers of the covered
product and component manufacturers to be held jointly and severally
liable for the violation.
(ii) A fine for a violation of this subparagraph relating to
mislabeling shall be assessed in accordance with factors described in
subdivision (d) and the following schedule:
(I) The fine for the first violation shall be not less than one
thousand dollars ($1,000) but not more than two thousand five hundred
dollars ($2,500).
(II) The fine for the second violation shall be not less than two
thousand five hundred dollars ($2,500) but not more than five
thousand dollars ($5,000).
(III) The fine for the third violation shall be not less than five
thousand dollars ($5,000) but not more than seven thousand five
hundred dollars ($7,500).
(IV) The fine for any subsequent violation shall be not less than
seven thousand five hundred dollars ($7,500) but not more than ten
thousand dollars ($10,000).
(iii) The fines in clause (ii) shall replace any other fines in
this article for a violation of the testing requirements of this
section. This clause does not alter or amend any other penalty
otherwise imposed by this article.
(iv) If the department's testing shows that a covered product
labeled as "contain NO added flame retardant chemicals" is mislabeled
because it contains added flame retardant chemicals, in addition to
a fine or any other request, the bureau may request that the label
required by subdivision (b) for covered products that belong to the
same stock keeping unit (SKU) currently produced by the manufacturer
be corrected to reflect that flame retardant chemicals are added to
the covered product.
(v) If the department's testing shows that a covered product
labeled as "contain NO added flame retardant chemicals" is mislabeled
because it contains added flame retardant chemicals, in addition to
a fine or any other request, the bureau may request additional
testing of more products belonging to the same stock keeping unit
(SKU) at the manufacturer's expense to verify the accuracy of the
label required by subdivision (b) for covered products if the
manufacturer wishes to retain the "contain NO added flame retardant
chemicals" designation on the label required by subdivision (b).
(d) (1) The bureau shall make information about any citation
issued pursuant to this section available to the public on its
Internet Web site.
(2) In determining the amount of the fine for violations of this
section, the bureau shall consider the following factors:
(A) The nature and severity of the violation.
(B) The good or bad faith of the cited person.
(C) The history of previous violations.
(D) Evidence that the violation was willful.
(E) The extent to which the cited person or entity has cooperated
with the bureau.
(3) (A) The bureau shall adjust all minimum and maximum fines
imposed by this section for inflation every five years.
(B) The adjustment shall be equivalent to the percentage, if any,
that the Consumer Price Index at the time of adjustment exceeds the
Consumer Price Index at the time this section goes into effect. Any
increase determined under this paragraph shall be rounded as follows:
(i) In multiples of ten dollars ($10) in the case of penalties
less than or equal to one hundred dollars ($100).
(ii) In multiples of one hundred dollars ($100) in the case of
penalties greater than one hundred dollars ($100) but less than or
equal to one thousand dollars ($1,000).
(iii) In multiples of one thousand dollars ($1,000) in the case of
penalties greater than one thousand dollars ($1,000).
(4) It shall be the duty of the bureau to receive complaints from
consumers concerning covered products sold in California.
(e) The bureau may adopt regulations pursuant to the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code) to
carry out this section.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.