Amended in Assembly August 18, 2014

Amended in Assembly June 30, 2014

Amended in Assembly June 18, 2014

Amended in Assembly June 10, 2014

Amended in Senate May 27, 2014

Amended in Senate April 21, 2014

Amended in Senate March 24, 2014

Senate BillNo. 1019


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 to contain a specified label that is 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 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 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:

P3    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

3(a) In 1975, California implemented Technical Bulletin 117,
4which requires that materials, such as polyurethane foam, used to
5fill furniture be able to withstand a small open flame for at least
612 seconds.

7(b) Flame retardant chemicals are used widely in upholstered
8furniture to meet the flame retardant standards of the Bureau of
9Electronic and Appliance Repair, Home Furnishings, and Thermal
10Insulation’s Technical Bulletin 117.

11(c) People are exposed to flame retardant chemicals in multiple
12ways, including when the chemicals migrate from furniture and
13other consumer products into air and dust in the home or
14workplace.

15(d) Some of these chemicals can persist in the environment,
16bioaccumulate in people and animals, and have been shown to
17cause adverse developmental effects in animals and humans.

18(e) A study by the California Environmental Protection Agency
19found that women in California have much higher levels of toxic
20flame retardants in their breast tissue than women in other states
21and countries. Studies published in the journal of Environmental
22Research show that children in California have much higher levels
23of flame retardant chemicals than children elsewhere in the country.

P4    1(f) A study published in the Journal of Occupational and
2Environmental Medicine concluded that firefighters have a
3significantly elevated risk of cancer that may be attributed to toxic
4chemicals they inhale, including flame retardants.

5(g) Various studies have linked exposure to flame retardants to
6cancer, lower IQs and attention problems, male infertility, male
7birth defects, and early puberty in girls.

8(h) In 2012, Governor Brown asked the Bureau of Electronic
9and Appliance Repair, Home Furnishings, and Thermal Insulation
10to review the state’s four-decade-old flammability standards and
11recommend changes to reduce toxic flame retardants while
12continuing to ensure fire safety.

13(i) The Bureau of Electronic and Appliance Repair, Home
14Furnishings, and Thermal Insulation concluded that “studies show
15that fire retardant (FR) tested foam does not provide a meaningful
16difference in egress time from non-FR foam and increases
17smoldering propensity.” In 2013, the Bureau of Electronic and
18Appliance Repair, Home Furnishings, and Thermal Insulation
19promulgated regulations revising Technical Bulletin 117 to allow
20furniture manufacturers to meet a smoldering standard. The revised
21Technical Bulletin 117-2013 provides improved fire safety
22standards without the use of flame retardant chemicals.

23(j) Technical Bulletin 117-2013 can be met with or without the
24use of flame retardant chemicals, but consumers currently have
25no way to know whether flame retardant chemicals have been
26added to the product.

27(k) Consumers want to be able to exercise an informed choice
28and buy products that are not only safer for themselves and their
29families, but are products that will also keep our firefighters safer.

30(l) It is, therefore, the intent of the Legislature in enacting this
31measure to provide California consumers clear information about
32the furniture products they are purchasing, specifically concerning
33compliance with fire safety standards and the absence or presence
34of added flame retardant chemicals.

35

SEC. 2.  

Section 19094 is added to the Business and Professions
36Code
, to read:

37

19094.  

(a) For the purposes of this section, the following
38definitions shall apply:

39(1)  “Component” means the separate constituent parts of
40upholstered furniture sold in California, as identified in Technical
P5    1Bulletin 117-2013, specifically cover fabrics, barrier materials,
2resilient filling materials, and decking materials.

3(2)  “Covered products” means any flexible polyurethane foam
4or upholstered or reupholstered furniture sold in California that is
5required to meet the test requirements set forth in Technical
6Bulletin 117-2013, entitled “Requirements, Test Procedure and
7Apparatus for Testing the Smolder Resistance of Materials Used
8in Upholstered Furniture.”

begin insert

9(3) “Flame retardant chemical” means any chemical or
10chemical compound for which a purported functional use is to
11resist or inhibit the spread of fire. Flame retardant chemicals
12include, but are not limited to, halogenated, phosphorous-based,
13nitrogen-based, and nanoscale flame retardants, and flame
14retardant chemicals listed as “designated chemicals” pursuant to
15Section 105440 of the Health and Safety Code.

end insert
begin insert

16(4) “Chemical” means either of the following:

end insert
begin insert

17(A) An organic or inorganic substance of a particular molecular
18identity, including any combination of those substances occurring,
19in whole or in part, as a result of a chemical reaction or occurring
20in nature, and any element, ion, or uncombined radical, and any
21degrade, metabolite, or reaction product of a substance with a
22 particular molecular identity.

end insert
begin insert

23(B) A chemical ingredient, which means a substance comprising
24one or more substances described in subparagraph (A).

end insert
begin insert

25(5) “Molecular identity” means the substance’s properties listed
26below:

end insert
begin insert

27(A) Agglomeration state.

end insert
begin insert

28(B) Bulk density.

end insert
begin insert

29(C) Chemical composition, including surface coating.

end insert
begin insert

30(D) Crystal structure.

end insert
begin insert

31(E) Dispersability.

end insert
begin insert

32(F) Molecular structure.

end insert
begin insert

33(G) Particle density.

end insert
begin insert

34(H) Particle size, size distribution, and surface area.

end insert
begin insert

35(I) Physical form and shape, at room temperature and pressure.

end insert
begin insert

36(J) Physicochemical properties.

end insert
begin insert

37(K) Porosity.

end insert
begin insert

38(L) Solubility in water and biologically relevant fluids.

end insert
begin insert

39(M) Surface charge.

end insert
begin insert

40(N) Surface reactivity.

end insert
begin delete

P6    1(3)

end delete

2begin insert(6)end insert “Added flame retardant chemicals” means flame retardant
3chemicals that are present in any covered product or component
4thereof at levels above 1,000 parts per million.

begin delete

5(4)

end delete

6begin insert(7)end insert “Department” means the Department of Toxic Substances
7Control.

begin delete

8(5)

end delete

9begin insert(8)end insert “Consumer Price Index” means the Consumer Price Index
10for All Urban Consumers published by the Bureau of Labor
11Statistics.

12(b) (1) A manufacturer of covered products shall indicate
13whether or not the product contains added flame retardant
14chemicals by including the following “flame retardant chemical
15statement” on the label described in Section 1374.3 of Title 4 of
16the California Code of Regulations for covered products:


18“The upholstery materials in this product:

19_____contain added flame retardant chemicals

20_____contain NO added flame retardant chemicals

21The State of California has updated the flammability standard
22and determined that the fire safety requirements for this product
23can be met without adding flame retardant chemicals. The state
24has identified many flame retardant chemicals as being known to,
25or strongly suspected of, adversely impacting human health or
26development.”


28 A manufacturer of covered products shall indicate the absence
29or presence of added flame retardant chemicals by placing an “X”
30in one of the appropriate blanks.

31(2) This statement shall be included in the label described in
32Section 1374.3 of Title 4 of the California Code of Regulations in
33accordance with the bureau’s regulations for that label. The
34statement need not be in all capital letters, and shall follow the
35statement required by Section 1374.3 of Title 4 of the California
36Code of Regulations.

37(c) (1) The manufacturer of the covered product sold in
38California shall retain documentation to show whether flame
39retardant chemicals were added. A written statement by the supplier
40of each component covered by Technical Bulletin 117-2013
P7    1attesting either that flame retardant chemicals were added or not
2added shall be sufficient documentation.

3(2) The bureau shall ensure compliance with the labeling and
4documentation requirements in this section.

5(3) (A) Upon request, a manufacturer of a covered product sold
6in California shall provide to the bureau, within 30 days of the
7request, documentation establishing the accuracy of the flame
8retardant chemical statement on the label required by subdivision
9(b).

10(B) The bureau shall assess fines of not less than two thousand
11five hundred dollars ($2,500) but not more than fifteen thousand
12dollars ($15,000) in accordance with the factors described in
13subdivision (d) for the failure of the manufacturer of the covered
14product to maintain the documentation required by this section,
15or for the failure of the manufacturer of the covered product to
16provide, upon request, the documentation required by this section
17to the bureau. These fines shall replace any other fines in this article
18for a violation of the documentation requirements of this section.
19This subparagraph does not alter or amend any other penalty
20otherwise imposed by this article.

21(C) A manufacturer of covered products and component
22suppliers shall be jointly and severally liable for violations of the
23documentation required in this section.

24(D) The bureau shall provide the Department of Toxic
25Substances Control with a selection of samples from covered
26products marked “contain NO added flame retardant chemicals”
27for testing for the presence of added flame retardant chemicals.
28The samples shall be from the components identified in paragraph
29(1) of subdivision (a). The bureau shall select samples based on
30consultation with the department, taking into account a range of
31manufacturers and types of covered products. The bureau and the
32department shall consult on the tests to be conducted by the
33department. The department shall provide the results of any
34completed test to the bureau.

35(E) (i) If the department’s testing shows that a covered product
36labeled as “contain NO added flame retardant chemicals” is
37mislabeled because it contains added flame retardant chemicals,
38the bureau may assess fines for violations against manufacturers
39of the covered product and component manufacturers to be held
40jointly and severally liable for the violation.

P8    1(ii) A fine for a violation of this subparagraph relating to
2mislabeling shall be assessed in accordance with the factors
3described in subdivision (d) and the following schedule:

4(I) The fine for the first violation shall be not less than one
5thousand dollars ($1,000) but not more than two thousand five
6hundred dollars ($2,500).

7(II) The fine for the second violation shall be not less than two
8thousand five hundred dollars ($2,500) but not more than five
9thousand dollars ($5,000).

10(III) The fine for the third violation shall be not less than five
11thousand dollars ($5,000) but not more than seven thousand five
12hundred dollars ($7,500).

13(IV) The fine for any subsequent violation shall be not less than
14seven thousand five hundred dollars ($7,500) but not more than
15ten thousand dollars ($10,000).

16(iii) The fines in clause (ii) shall replace any other fines in this
17article for a violation of the testing requirements of this section.
18This clause does not alter or amend any other penalty otherwise
19imposed by this article.

20(iv) If the department’s testing shows that a covered product
21labeled as “contain NO added flame retardant chemicals” is
22mislabeled because it contains added flame retardant chemicals,
23in addition to a fine or any other request, the bureau may request
24that the label required by subdivision (b) for covered products that
25belong to the same stock keeping unit (SKU) currently produced
26by the manufacturer be corrected to reflect that flame retardant
27chemicals are added to the covered product.

28(v) If the department’s testing shows that a covered product
29labeled as “contain NO added flame retardant chemicals” is
30mislabeled because it contains added flame retardant chemicals,
31in addition to a fine or any other request, the bureau may request
32additional testing of more products belonging to the same stock
33keeping unit (SKU) at the manufacturer’s expense to verify the
34accuracy of the label required by subdivision (b) for covered
35products if the manufacturer wishes to retain the “contain NO
36added flame retardant chemicals” designation on the label required
37by subdivision (b).

38(d) (1) The bureau shall make information about any citation
39issued pursuant to this section available to the public on its Internet
40Web site.

P9    1(2) In determining the amount of the fine for violations of this
2section, the bureau shall consider the following factors:

3(A) The nature and severity of the violation.

4(B) The good or bad faith of the cited person.

5(C) The history of previous violations.

6(D) Evidence that the violation was willful.

7(E) The extent to which the cited person or entity has cooperated
8with the bureau.

9(3) (A) The bureau shall adjust all minimum and maximum
10fines imposed by this section for inflation every five years.

11(B) The adjustment shall be equivalent to the percentage, if any,
12that the Consumer Price Index at the time of adjustment exceeds
13the Consumer Price Index at the time this section goes into effect.
14Any increase determined under this paragraph shall be rounded as
15follows:

16(i) In multiples of ten dollars ($10) in the case of penalties less
17than or equal to one hundred dollars ($100).

18(ii) In multiples of one hundred dollars ($100) in the case of
19penalties greater than one hundred dollars ($100) but less than or
20equal to one thousand dollars ($1,000).

21(iii) In multiples of one thousand dollars ($1,000) in the case
22of penalties greater than one thousand dollars ($1,000).

23(4) It shall be the duty of the bureau to receive complaints from
24consumers concerning covered products sold in California.

25(e) The bureau may adopt regulations pursuant to the
26Administrative Procedure Act (Chapter 3.5 (commencing with
27Section 11340) of Part 1 of Division 3 of Title 2 of the Government
28Code) to carry out this section.

29

SEC. 3.  

No reimbursement is required by this act pursuant to
30Section 6 of Article XIII B of the California Constitution because
31the only costs that may be incurred by a local agency or school
32district will be incurred because this act creates a new crime or
33infraction, eliminates a crime or infraction, or changes the penalty
34for a crime or infraction, within the meaning of Section 17556 of
35the Government Code, or changes the definition of a crime within
36the meaning of Section 6 of Article XIII B of the California
37Constitution.



O

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