BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:   June 17, 2014

           ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
                                  Luis Alejo, Chair
                     SB 1019 (Leno) - As Amended:  June 10, 2014

           SENATE VOTE  :   29-6
           
          SUBJECT  :   Upholstered furniture:  flame retardant chemicals.

           SUMMARY  :  Requires manufacturers of upholstered furniture to  
          indicate, on a label currently required by law, whether or not  
          the product contains added flame retardant chemicals.   
          Specifically,  this bill  :   

          1)Makes legislative findings about California's upholstered  
            furniture flammability standards and the adverse public health  
            and environmental impacts of flame retardant chemicals.  

          2)Defines terms, including:

             a)   "Covered products" as 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 (TB) 117-2013, entitled "Requirements,  
               Test Procedure and Apparatus for Testing the Smolder  
               Resistance of Materials Used in Upholstered Furniture,"  
               and,

             b)   "Added flame retardant chemicals" as flame retardant  
               chemicals that are present in any covered product or  
               component thereof at levels above 1,000 parts per million.

          3)Requires a manufacturer of covered products to indicate  
            whether or not the product contains added flame retardant  
            chemicals on the label currently required by the California  
            Code of Regulations (TB 117-2013).

          4)Requires label TB 117-2013 to include the following statement:  
            "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."









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          5)Requires the manufacturer of a covered product sold in  
            California to retain documentation to show whether flame  
            retardant chemicals were added.  Authorizes a written  
            statement by the supplier of each component covered by TB  
            117-2013 attesting either that flame retardant chemicals were  
            added or not added to be sufficient documentation.

          6)Requires Bureau of Electronic and Appliance Repair, Home  
            Furnishings, and Thermal Insulation (BEARHFTI) to ensure  
            compliance with the labeling and documentation requirements in  
            this bill.

          7)Requires, within 30 days of a request from BEARHFTI, a  
            manufacturer of a covered product sold in California to  
            provide documentation establishing the accuracy of the flame  
            retardant chemical statement on the required label.

          8)Requires BEARHFTI to assess fines of not less than $2,500, but  
            not more than $15,000 for the failure of the manufacturer of  
            the covered product to maintain or provide upon request the  
            required documentation. 

          9)Specifies that a manufacturer of covered products and  
            component suppliers shall be jointly and severally liable for  
            violations of the documentation requirements.

          10)Requires BEARHFTI to provide the Department of Toxic  
            Substances Control (DTSC) with a selection of samples, as  
            specified, from covered products marked "contain NO added  
            flame retardant chemicals" for testing for the presence of  
            added flame retardant chemicals. 

          11)Authorizes, if DTSC's testing shows that a covered product  
            labeled as "contain NO added flame retardant chemicals" is  
            mislabeled because it contains added flame retardant  
            chemicals, BEARHFTI to assess fines for violations against  
            manufacturers of the covered product and component  
            manufacturers to be held jointly and severally liable for the  
            violation.

          12)Requires fines for mislabeling to be assessed in increasing  
            severity, from $1,000 to $10,000, depending on the frequency  
            of the violation and in accordance with the following factors:

             a)   The nature and severity of the violation;








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             b)   The good or bad faith of the cited person;

             c)   The history of previous violations;

             d)   Evidence that the violation was willful; and,

             e)   The extent to which the cited person or entity has  
               cooperated with the BEARHFTI.

          13)Requires BEARHFTI to adjust all minimum and maximum fines for  
            mislabeling for inflation every five years.  

          14)Authorizes BEARHFTI, if DTSC's testing shows that a covered  
            product labeled as "contain NO added flame retardant  
            chemicals" is mislabeled because it contains added flame  
            retardant chemicals to request that the label 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.

          15)Authorizes BEARHFTI, if DTSC's testing shows that a covered  
            product labeled as "contain NO added flame retardant  
            chemicals" is mislabeled because it contains added flame  
            retardant chemicals to request additional testing of more  
            products belonging to the same SKU at the manufacturer's  
            expense.

          16)Requires BEARHFTI to make information about any labeling  
            citation available to the public on its Internet Web site.

          17)Specifies that it is the duty of BEARHFTI to receive  
            complaints from consumers concerning covered products sold in  
            California.

          18)Authorizes BEARHFTI to adopt regulations pursuant to the  
            Administrative Procedure Act to carry out the requirements of  
            the bill.

           EXISTING LAW  :

          1)Establishes the Home Furnishings and Thermal Insulation Act  
            and requires it to be administered by BEARHFTI within the  
            Department of Consumer Affairs (DCA).  (Business and  








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            Professions Code (BCP)  19000 et seq.)

          2)Requires protection of the public to be the highest priority  
            for BEARHFTI in exercising its licensing, regulatory, and  
            disciplinary functions.  Requires, whenever the protection of  
            the public is inconsistent with other interests sought to be  
            promoted, the protection of the public to be paramount.  (BCP  
             19004.1)

          3)Requires all seating furniture sold or offered for sale by an  
            importer, manufacturer, or wholesaler, including any seating  
            furniture sold to or offered for sale for use in a hotel,  
            motel, or other place of public accommodation, and  
            reupholstered furniture to which filling materials are added,  
            shall be fire retardant and shall be labeled in a manner  
            specified by BEARHFTI.  (BCP  19161)  

          4)Requires all flexible polyurethane foam in the form of slabs,  
            blocks, or sheets, or which is shredded, as specified, that is  
            offered for sale to the general public at retail outlets to be  
            fire retardant.  Defines "fire retardant" as a product that  
            meets the regulations adopted by BEARHFTI.  (BPC  19161.3)  

          5)Prohibits a person from manufacturing, processing, or  
            distributing in commerce a product or part of a product that  
            contains more than 1/10th of 1% of pentaBDE or octaBDE.   
            (Health and Safety Code (HSC)  108922)

          6)Requires, pursuant to TB 117-2013, beginning January 1, 2015,  
            all filling materials and cover fabrics contained in  
            upholstered furniture sold in California to meet certain  
            smolder resistant testing standards, and to be labeled as  
            specified.  (Article 13, Division 3, Title 4, California Code  
            of Regulations  1374)

           FISCAL EFFECT  :  Unknown.

           COMMENTS  :   

           Need for the bill  :  According to the author, "Consumers have the  
          right to know whether the furniture they are buying contains  
          added flame retardants.  SB 1019 will provide consumers who are  
          purchasing furniture easily accessible information on whether  
          the product contains added flame retardant chemicals.   
          California's BEARHFTI found that flame retardant chemicals in  








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          furniture do not provide a meaningful fire safety benefit.   
          These chemicals are associated with a variety of health  
          concerns.  Current labeling law does not provide clear  
          disclosure of the use of these chemicals even though many  
          consumers would like such information?

          "SB 1019 would require upholstered furniture manufacturers to  
          disclose via modifying an existing law product label and  
          specified point-of-sale information as to whether or not the  
          furniture contains added flame retardant chemicals. This bill  
          provides an opportunity for retailers and manufacturers to  
          utilize the information that is disclosed pursuant to SB 1019 to  
          further the goal of helping their customers make informed buying  
          decisions.  Ultimately, consumers want to be able to exercise an  
          informed choice and buy products that not only keep them and  
          their families safer, but also keep our firefighters safer.  SB  
          1019 assists manufacturers, retailers and consumers in achieving  
          this."

           Flame retardant chemicals  :  Flame retardants are added to  
          plastic, foam, textiles, electronics, and other products to  
          reduce the likelihood that products will catch fire and to slow  
          the rate at which they burn if they do catch fire.  They can act  
          to reduce the chances that something catches on fire, or slow  
          the progression of the fire after it starts.  Chemical flame  
          retardants undergo a chemical reaction that quenches the fire,  
          typically by reducing the amount of oxygen available to feed the  
          fire.  

           Human health and environmental impacts of flame retardant  
          chemicals  : Many flame retardant chemicals are persistent  
          chemicals that bioaccumulate and biomagnify.  PBDEs, the most  
          thoroughly studied of the flame retardant chemicals, have been  
          found in birds, fish, shellfish, amphibians, marine mammals,  
          sewage sludge, sediments, air samples, meats, dairy products,  
          and even vegetables.  There has been extensive animal research  
          over the past decade, indicating that PBDE exposure can lead to  
          abnormalities in learning, memory, neurodevelopment,  
          hyperactivity, endocrine disruption, and neurotoxic effects.  

          In humans, PBDEs have been found to accumulate in blood, fat,  
          and breast milk.  According to DTSC, the levels of PBDEs  
          measured in humans in the United States and Canada are typically  
          at least 10 times higher than those in Europe, and appear to be  
          doubling every few years.  More recent research has shown that  








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          PBDE exposure in humans may lead to endocrine disruption,  
          reproductive difficulty, neurodevelopment, reduced IQ, and  
          elevated thyroid levels.

           Upholstered furniture flammability standard  :  According to  
          BEARHFTI, in 1972, AB 2165 (Burton) was signed requiring BEARHFT  
          to establish upholstered furniture flammability standards.  AB  
          2165 enacted Business and Professions Code Section 19161, which  
          required all upholstered furniture sold in California to be fire  
          retardant and labeled as such. 
           
          BEARHFTI states that it develops flammability standards in the  
          form of Technical Bulletins (TBs) which are adopted through  
          regulation.  There are also a number of other federal  
          flammability standards developed by the United States Consumer  
          Product Safety Commission (CPSC) which are currently in effect  
          nationwide.  While CPSC has been studying a national residential  
          upholstered furniture standard for several years, California  
          remains the only state with a residential upholstered furniture  
          flammability standard.  However, since California is such a  
          large portion of the national market, most manufacturers choose  
          to meet California's standards in all of their products across  
          the country.

          TB 117  :  According to BEARHFTI, in October 1975, regulations  
          were promulgated and resulted with the development of Technical  
          Bulletin 117 (TB 117) entitled, "Requirements, Test Procedures  
          and Apparatus for Testing the Flame Retardance of Filling  
          Materials Used in Upholstered Furniture."  This mandatory  
          performance standard requires that the concealed filling  
          materials and cover fabric of upholstered furniture undergo  
          individual component testing to ensure that they pass open flame  
          and cigarette smolder tests.  Manufacturers meet this  
          requirement, predominately, through using polyurethane foam  
          treated with flame retardant chemicals, which must withstand  
          exposure to a 12 second small open flame. 

          Recently, BEARHFTI determined that TB 117 did not adequately  
          address the flammability performance of upholstered furniture  
          performance of the upholstery cover fabric and its interactions  
          with underlying filling materials and that flame retardant foam  
          can actually increase smolder propensity.  In addition, concerns  
          have been growing about the human health and environmental  
          impacts of flame retardant chemicals.  As a response, in 2012,  
          Governor Brown directed BEARHFTI to revise flammability  








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          standards for upholstered furniture sold in the state. 

           TB 117- 2013  :  In recognition of TB 117's inadequacy at  
          addressing the flammability performance of upholstery cover  
          fabric and its interactions with underlying filling materials,  
          as well as noting the health concerns over the use of flame  
          retardant chemicals, BEARHFTI published TB 117- 2013 in November  
          2013.  TB 117-2013 updates flammability standards from the open  
          flame method of testing to a smoldering test.  Manufacturers  
          have indicated that they can comply with TB 117-2013 without the  
          use of flame retardant chemicals.  TB 117-2013 became effective  
          on January 1, 2014.  Manufacturers will have a year to complete  
          the transition and must come into full mandatory compliance on  
          January 1, 2015.  TB 117-2013 supersedes TB 117.   

           The author's office indicates that existing regulations require  
          manufacturers to include the compliance tag required by TB 117-  
          2013 on all upholstered furniture sold in the state beginning in  
          January 2015.  This bill coordinates with the existing  
          requirement by requiring flame retardant use to be included on  
          that tag in the same time frame.  This information will provide  
          consumers with information about the products they are  
          purchasing for their homes.  
           
          Arguments in support  :  The Natural Resources Defense Council  
          (NRDC) asserts, "BEARHFTI found that flame retardant chemicals  
          as used in residential furniture do not provide a meaningful  
          fire safety benefit.  These chemicals are associated with a  
          variety of health concerns, including cancer, decreased  
          fertility, hormone disruption, lower IQ, and hyperactivity.   
          California's children have some of the highest levels of flame  
          retardants in their blood and low-income communities of color  
          have high exposure as well?  Consumers should be able to readily  
          identify furniture that does not contain these chemicals because  
          of health and environmental concerns.  However, currently there  
          is no disclosure required for added flame retardants, so  
          consumers cannot determine if flame retardants have been added  
          to furniture."

          The California Professional Firefighters argue, "Consumers want  
          to be able to exercise a knowledgeable choice and buy products  
          that not only keep them and their families safer, but our  
          state's firefighters safer as well.  SB 1019 assists  
          manufacturers, retailers and consumers in achieving this  
          important goal.  Ultimately, consumers who exercise a choice to  








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          purchase safer products create a direct and positive impact on  
          the reduction of toxic exposures to firefighters."

           Arguments in opposition  :  The California Manufacturers &  
          Technology Association, along with several other industry  
          groups, argues in a letter submitted on a previous version of  
          the bill, "The bill as drafted:  lacks scientific justification;  
          conflicts with existing California consumer product and chemical  
          safety laws; and contains statements of intent and operative  
          language that are either false, incomplete or taken out of  
          context, thereby failing to provide consumers with meaningful  
          information about the safety of products that may contain flame  
          retardant chemicals."   They contend that this bill will  
          "unnecessarily alarm consumers over the safety of products they  
          may purchase," and conflicts with current Proposition 65 warning  
          labels for hazardous chemicals.  The letter also objects to the  
          array of reporting requirements on manufacturers that could  
          expose them to monetary penalties, which they argue are  
          inappropriately harsh.   

           Recent related legislation  :

          1)AB 2197 (Mitchell, 2012), would have required BEARHFTI to  
            revise regulations to require all seating furniture sold or  
            offered for sale to meet a smolder flammability test rather  
            than an open flame-test.  This bill was not heard in the  
            Assembly ESTM committee, at the author's request.  

          2)SB 147 (Leno, 2011), would have required the Bureau, on or  
            before March 1, 2013, to modify the requirements for  
            flammability of residential upholstered furniture to include a  
            smolder flammability test as an alternative method of  
            compliance.  This billed failed passage in the Senate  
            Committee on Business, Professions, and Economic Development.   
            Note: the intent of this bill and AB 2197 (2012) was  
            implemented through regulation through the adoption of TB  
            117-2013.

          3)SB 1291 (Leno, 2010), would have required the Department of  
            Toxic Substances Control to include, as a chemical under  
            consideration in the Green Chemistry process, any chemical  
            that is used, or is proposed to be used, as a flame retardant.  
            That bill was placed on the inactive file on the Senate Floor  
            and died on file. 









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           REGISTERED SUPPORT / OPPOSITION  :

           Support: 
           
          CalFIRE Local 2881 (co-sponsor)
          California Professional Firefighters (co-sponsor)
          Center for Environmental Health (co-sponsor)
          Natural Resources Defense Council (co-sponsor)
          Alliance for Toxic-Free Fire Safety
          Architects, Designers and Planners for Social Responsibility
          Association of Regional Center Agencies
          BlueGreen Alliance
          Breast Cancer Fund
          California Labor Federation
          California League of Conservation Voters
          California Nurses Association
          Californians for a Healthy & Green Economy
          California Public Interest Research Group
          City and County of San Francisco
          Clean Water Action
          Coalition for Clean Air
          Commonweal Biomonitoring Resource Center
          Consumer Federation of California
          Consumers Union
          EarthJustice
          Environmental Working Group
          Environment California
          Esperanza Community Housing Corporation
          Friends of the Earth
          Health Care Without Harm
          Just Transition Alliance
          Kaiser Permanente
          Long Beach Firefighters
          Los Angeles County Fire Fighters, Local 1014
          Perkins + Will
          Pesticide Action Network
          Physicians for Social Responsibility - Los Angeles
          Physicians for Social Responsibility - San Francisco Bay Area
          Sierra Club California
          Stockton Professional Firefighters
          United Firefighters of Los Angeles City, Local 112

           Opposition: 
           
          American Chemistry Council








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          American Home Furnishing Alliance
          California Chamber of Commerce
          California Furniture Manufacturers Association
          California Manufacturers & Technology Association
          Chemical Industry Council of California
          Industrial Environmental Association
          National Federation of Independent Businesses
          North American Home Furnishing Association
          North American Home Furnishings Association
          Polyurethane Foam Association
          Upholstered Furniture Action Council

           Analysis Prepared by  :  Shannon McKinney / E.S. & T.M. / (916)  
          319-3965