BILL ANALYSIS Ó
SB 1019
Page 1
Date of Hearing: June 24, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
SB 1019 (Leno) - As Amended: June 18, 2014
SENATE VOTE : 29-6
SUBJECT : Upholstered furniture: flame retardant chemicals.
SUMMARY : Requires manufacturers of upholstered furniture to
include a label indicating whether the product has added flame
retardant chemicals, and requires the Bureau of Electronic and
Appliance Repair, Home Furnishings and Thermal Insulation
(BEARHFTI) to ensure compliance with labeling and documentation
requirements, as specified. 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 the following:
a) "Component" means the separate constituent parts of
upholstered furniture sold in California, as identified in
Technical Bulletin 117-2013 (TB 117-2013), specifically,
cover fabrics, barrier materials, resilient filling
materials, and decking materials;
b) "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 TB 117-2013, entitled "Requirements, Test
Procedure and Apparatus for Testing the Smolder Resistance
of Materials Used in Upholstered Furniture";
c) "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;
and,
d) "Consumer Price Index" (CPI) means the Consumer Price
Index for All Urban Consumers published by the Bureau of
Labor Statistics.
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3)Requires a manufacturer of covered products to indicate on the
product label whether or not the product contains added flame
retardant chemicals, as specified.
4)Requires the product label 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."
5)Requires the manufacturer of a covered product sold in
California to retain documentation to show whether flame
retardant chemicals were added, and provides that a written
statement by the supplier of each component covered by TB
117-2013 attesting either that flame retardant chemicals were
added or not shall be sufficient documentation.
6)Requires 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 between $2,500 and $15,000,
as specified, for the failure of the manufacturer of the
covered product to maintain or provide the required
documentation, as specified. Provides that these fines
replace any other fines for a violation of the documentation
requirements, and that this does not alter or amend any other
penalty otherwise imposed, as specified.
9)Requires that that a manufacturer of covered products and
component suppliers 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.
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11)Requires BEARHFTI to select samples based on consultation
with DTSC, taking into account a range of manufacturers and
types of covered products; requires BEARHFTI and DTSC to
consult on the tests to be conducted by DTSC; and requires
DTSC to provide the results of any completed test to BEARHFTI.
12)Authorizes BEARHFTI to assess fines for violations against
manufacturers of the covered product and component
manufacturers, 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.
13)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 factors including
nature and severity of the violation; good or bad faith of the
cited person; history of previous violations; evidence that
the violation was willful; and the extent to which the cited
person or entity has cooperated with BEARHFTI. States that
these fines replace any other existing fines for a violation
of the testing requirements, and that this clause does not
alter or amend any other penalty otherwise imposed.
14)Requires BEARHFTI to adjust all minimum and maximum
mislabeling fines for inflation every five years, and provides
that the adjustment shall be equivalent to the percentage that
the CPI at the time of adjustment exceeds the CPI at the time
this bill goes into effect, as specified.
15)Authorizes BEARHFTI to do the following, 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,:
a) 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; and,
b) Request additional testing of more products belonging to
the same SKU at the manufacturer's expense to verify the
accuracy of the label for covered products if the
manufacturer wishes to retain the "contain NO added flame
retardant chemicals" designation.
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16)Requires BEARHFTI to make information about any labeling
citation available to the public on its Internet Web site.
17)Requires 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, which is
within the Department of Consumer Affairs (DCA). (Business
and 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,
to be fire retardant and labeled in a manner specified by
BEARHFTI. (BCP 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 BEARHFTI. (BPC 19161.3)
5)Authorizes the Chief of BEARHFTI, 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)Prohibits a person from manufacturing, processing, or
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distributing in commerce a product or part of a product that
contains more than 1/10th of 1% of pentaBDE or octaBDE (types
of polybrominated diphenyl ethers, or "PBDEs"). (Health and
Safety Code 108922)
7)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 :
1)Purpose of the bill . This bill requires upholstered furniture
manufacturers to disclose whether or not the furniture
contains added flame retardant chemicals in order to help
consumers make informed purchasing decisions, and authorizes
BEARHFTI to assess fines against manufacturers and component
suppliers for violating labeling requirements. This bill is
sponsored by the California Professional Firefighters, CALFIRE
Local 2881, Center for Environmental Health, and Natural
Resources Defense Council.
2)Author's statement . According to the author's office, "While
TB 117-2013 no longer requires upholstered furniture
manufacturers to use toxic flame retardant chemicals,
consumers will not be able to tell if a piece of furniture
that meets the standard does or does not contain flame
retardant chemicals. Under the [Home Furnishings and Thermal
Insulation] Act, BEARHFTI lacks the authority to expand
current TB 117-2013 label to provide this necessary consumer
disclosure of the use or absence of flame retardants.
"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. [BEARFHTI] found that flame retardant
chemicals in 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
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consumers would like such information."
3)BEARHFTI . The California Bureau of Home Furnishings and
Thermal Insulation (BHFTI) was established in 1911 (AB 547
Ryan, Chapter 73, Statutes of 1911) in response to
unscrupulous manufacturing practices in the mattress industry,
which contributed to the fires following the 1906 San
Francisco earthquake. BHFTI's jurisdiction was later expanded
to include upholstered furniture and other bedding and
insulation products. To ensure public safety, BHFTI's
licensing population was broadened to include retailers,
wholesalers and importers in order to remove dangerous product
from the market. BHFTI also certifies thermal insulation
products and publishes an annual directory of those products.
In 2009, ABX4 20 (Strickland, Chapter 18, Statutes of 2009-10
Fourth Extraordinary Session), merged BHFTI with the Bureau of
Electronic and Appliance Repair together to create BEARHFTI.
4)Product testing . California is one of only two states (Ohio
is the other) that have product testing laboratories. The
rest of the nation looks to California to set industry
standards and for its technical expertise in testing and
classifying filling materials found in furniture and bedding.
These standards affect the products that are sold across the
country, because manufacturers typically produce items that
meet California's standards, and distribute those items to the
rest of the nation. BEARHFTI has access to, and may inspect
and test, any article of upholstered furniture, bedding, or
insulation, and may condemn, seize, or destroy any of those
products that are in violation of the law. While companies do
not need to have their products tested to receive a license,
staff may select items for testing to determine if products
are in compliance.
BEARHFTI's laboratory tests roughly 300 samples of upholstered
furniture, mattresses, bedding, plumage (feather and down),
and thermal insulation each year, and upholstered furniture
and mattresses make up the largest share of those samples.
5)TB 117 and TB 117-2013 . In 1975, California adopted
flammability standard TB 117, which required that each
component material (such as polyurethane foam) be able to
withstand a small open flame, equivalent to a candle, for at
least 12 seconds. This performance-based standard did not
prescribe the use of flame retardant chemicals, manufacturing
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methods, or specific materials to meet the standards.
However, furniture manufacturers typically meet TB 117 by
treating materials with flame retardants comprised of
halogenated compounds. California is the only state to have
established such a standard, but many manufacturers have
chosen to meet TB 117 in products that they distribute across
the United States. Significant concern has been raised in
recent years with the environmental and health impacts of the
flame retardant chemicals that are used to meet the standard.
In California, flame retardants once commonly used have recently
been listed as being known to cause cancer or birth defects or
other reproductive harm under Proposition 65 or banned from
use in the state. One of these flame retardants,
polybrominated diphenyl ethers (PBDEs), a brominated flame
retardant, was frequently added to upholstered furniture,
despite being closely linked to another flame retardant that
was banned decades ago for being known to be toxic. PBDEs are
the subject of many studies that link them to thyroid
disruption, memory and learning problems, delayed mental and
physical development, lower IQ, advanced puberty, and reduced
fertility. In 2003, California enacted a ban on penta- and
octa-BDEs (AB 302, Chan, Chapter 205, Statutes of 2003), and
these flame retardants were voluntarily discontinued in the
United States after 2004. After this ban, manufacturers
turned to chlorinated tris (TDCPP), even though a similar
flame retardant was known as early as the 1970s to be toxic.
In 2011, California listed TDCPP and TCEP, another chlorinated
tris, under Proposition 65. While manufacturers have phase
these specific flame retardants out of their upholstered
furniture products, conclusive studies have not yet been
completed on many other flame retardants, in part because new
formulations often arise, and as a result, their human health
and development affects are not completely understood.
However, because many of these flame retardants are
molecularly similar, other types of flame retardants are
similarly linked to, and likely to cause, adverse health
effects.
In 2012, Governor Brown directed BEARHFTI to revise flammability
standards for upholstered furniture sold in the state.
According to a statement from the Governor's office, "Toxic
flame retardants are found in everything from high chairs to
couches and a growing body of evidence suggests that these
chemicals harm human health and the environment," stated
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Governor Brown. "We must find better ways to meet fire safety
standards by reducing and eliminating wherever possible
dangerous chemicals."
In addition to the environmental and health concerns, BEARHFTI
believed that the existing standard did not adequately address
the flammability performance of upholstered furniture in an
actual fire. In an actual fire, upholstery cover fabric is the
first item to ignite, and then exposes the foam underneath to
a much larger flame. The current small open flame testing
method does not reflect real-world scenarios. As a result,
BEARHFTI published TB 117-2013, a revised standard, to test
upholstered furniture for smolder ignition, which is the
predominant source of fires today.
TB117-2013 is a "semi-composite" test in which components are
combined with standard test materials to construct a test
specimen. The standards were crafted based on a comprehensive
review, statewide workshops, and public comment, which
included over 30,000 comments in support, and a petition that
reached over 68,000 signatures in support. Manufacturers have
indicated that they can comply with TB 117-2013 without the
use of flame retardant chemicals. The new TB117-2013 became
effective on January 1, 2014, and manufacturers will have a
year to complete the transition and must come into full
mandatory compliance on January 1, 2015.
TB 117-2013 is currently being challenged in court by Chemtura
Corporation, a fire-retardant chemical company, seeking a Writ
of Mandate to overturn the revised rules (Chemtura Corporation
vs. Denise D. Brown). Chemtura contends the lawsuit is
necessary to seek judicial review of the authority of BEARHFTI
to eliminate the essential requirement of the fire safety
standard. A hearing upon the Writ of Mandate is currently
scheduled for August.
6)Exposure to flame retardant chemicals. People can be exposed
to flame retardants through several routes, including
inhalation of dust from consumer products in the home or
workplace. As consumer products such as couches and sofas
age, small particles of material become dust particles in the
air and land on surfaces around the home, including the floor.
Young children crawling and playing on the floor frequently
bring their hands to their mouths, ingesting about twice as
much house dust as adults per day in the United States.
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Because many halogenated flame retardants are fat-soluble,
they accumulate in fatty areas such as breast tissue and are
mobilized into breast milk, delivering high levels of flame
retardants to breast-feeding infants. Infants and toddlers
are particularly exposed to flame retardants found in breast
milk and dust, and young children in the United States tend to
carry higher levels of flame retardants per unit body weight
than do adults.
7)California Biomonitoring Program . SB 1379 (Perata and Ortiz),
Chapter 599, Statutes of 2006, established the California
Environmental Contaminant Biomonitoring Program, which is
required to identify and monitor "designated chemicals" and
their metabolites that are present in the bodies of
Californians. "Designated chemicals" are defined as those
chemicals that are, "known to, or strongly suspected of,
adversely impacting human health or development, based upon
scientific, peer-reviewed animal, human, or in vitro studies,"
and these chemicals are the pool from which the program's
scientific guidance panel recommends priority chemicals for
biomonitoring. As of June 2014, the priority chemicals list
included tens of dozens of brominated and chlorinated organic
compounds and their metabolites used as flame retardants, of
which close to half are various types of PBDEs and PBDE
metabolites. According to the author and sponsors, these
designated chemicals support the statement that "The state has
identified many flame retardants as being known to, or
strongly suspected of, adversely impacting human health or
development."
8)Question for the Committee . Because the prior flammability
standard was in place for nearly 40 years, it may be
beneficial to inform consumers about the recent change. As a
result, the author may wish to consider amending the language
as follows:
a) On page 6, line 8, after "California" add "has updated
the flammability standard and"
9)Arguments in support . According to the California
Professional Firefighters (CPF), "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?Ultimately, consumers who exercise
a choice to purchase safer products create a direct and
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positive impact on the reduction of toxic exposures to
firefighters. CPF is concerned not only with the health and
safety of California consumers, but with the health and safety
of our members who are routinely exposed to job-related toxic
substances?When chemical flame retardants burn they convert
into dioxin and furans, which expose firefighters to dangerous
levels of extremely toxic and cancer-causing chemicals that
can penetrate protective gear. Many studies involving
firefighter exposure to these and other toxic gases?conclude
that firefighters have a much greater risk of contracting
cancer, heart and lung disease and other debilitating diseases
as a result of the presence of these chemicals."
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."
10)Arguments in opposition . The American Chemistry Council,
along with other industry groups, writes that, "[T]he bill as
currently 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, "[U]nder SB 1019,
manufacturers would still be required to label whether their
product contains ANY flame retardant chemical, regardless of
whether the particular chemical presents any meaningful risk
to human health or the environment." Opponents also state
that, while the authors and sponsors characterize SB 1019 as a
"right to know" bill, the proposed label "makes no mention of
the regulatory change to eliminate open flame fire protection
requirements. Any new label should inform consumers that the
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fire safety testing requirements for the product were changed
in 2013 and the product is no longer required to be tested
against open flame sources of fires."
The American Home Furnishings Alliance and other industry groups
also write in opposition, "SB 1918 is designed to discourage
the purchase of upholstered furniture containing flame
retardants. However, flame retardants that may have presented
health concerns are no longer used in upholstered furniture.
Proposition 65 labeling also provides notice of the presence
of substances and concern. The SB 1019 labeling requirement
is redundant to Proposition 65 and unfairly discourages
development of new technologies that may help to improve
product safety without harm to workers, consumers or the
environment."
11)Double referral : This bill was previously heard in the
Environmental Safety and Toxic Materials Committee and was
passed by a 6-1 vote.
12)Related legislation . AB 127 (Skinner), Chapter 579, Statutes
of 2013, required the State Fire Marshal, in consultation with
the Bureau, to review the flammability standards for building
insulation materials, including whether the flammability
standards for some insulation materials can only be met with
the addition of chemical flame retardants and requires, if
deemed appropriate by the State Fire Marshal based on this
review, the State Fire Marshal to, by July 1, 2015, propose,
for consideration by the Building Standards Commission,
updated insulation flammability standards.
13)Prior legislation . AB 2197 (Mitchell) of 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 held in the Assembly ESTM committee.
SB 147 (Leno) of 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 was held in the Senate Committee on
Business, Professions, and Economic Development. (The intent
of this bill and AB 2197 of 2012 was implemented through
regulation through the adoption of TB 117-2013.)
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SB 1291 (Leno) of 2010 would have required DTSC 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. This bill was held on the Senate Floor.
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, except that the
Bureau could have, by regulation modified this exemption if
the Bureau determined that any juvenile products posed a
serious fire hazard. This bill was held in the Assembly
Appropriations Committee. (The provisions of SB 772 have been
largely implemented through regulation by BEARHFTI 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 retardant standards set by BEARHFTI and to meet other
requirements as specified. This bill was held on the Senate
Floor.
AB 302 (Chan), Chapter 205, Statutes of 2003, banned the use of
penta and octa PBDEs after January 1, 2008.
REGISTERED SUPPORT / OPPOSITION :
Support
California Professional Firefighters (sponsor)
CALFIRE Local 2881 (sponsor)
Center for Environmental Health (sponsor)
Natural Resources Defense Council (sponsor)
Alliance for Toxic-Free fire Safety
American Cancer Society Cancer Action Network
Architects, Designers and Planners for Social Responsibility
Asian Pacific Environmental Network
Association of Regional Center Agencies
Blue Green Alliance
Breast Cancer Fund
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California Labor Federation
California League of Conservation Voters
California Nurses Association
California School Employees Association
CALPIRG
CHANGE - Californians for a Healthy and Green Economy
Clean Water Action
Coalition for Clean Air
Comite Civico
Commonweal Biomonitoring Resource Center
Communication Workers of America, District 9 AFL-CIO
Consumer Federation of California
Consumers Union
Dignity Health
EarthJustice
Environment California
Environmental Working Group
Esperanza Community Housing Corporation
Friends of the Earth
Health Care Without Harm
Healthy African American Families, Phase II
Instituto de Educacion Popular del Sur de California
Just Transition Alliance
Kaiser Permanente
Long Beach Firefighters, Local 372
Los Angeles County Firefighters, Local 1014
Perkins + Will
Pesticide Action Network
Physicians for Social Responsibility- Los Angeles
Physicians for Social Responsibility - Sacramento
Physicians for Social Responsibility- San Francisco Bay Area
San Francisco, City and County of
Sierra Club
Trauma Foundation
Stockton Professional Firefighters, Local 456
United Firefighters of Los Angeles City, Local 112
Kirby Walker and James Redford, Producers/Directors of Toxic Hot
Seat
Opposition
American Chemistry Council
American Home Furnishings Alliance
California Chamber of Commerce
California Furniture Manufacturers Association
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California Manufacturers & Technology Association
Chemical Industry Council of California
Industrial Environmental Association
National Federation of Independent Businesses
North American Home Furnishings Association
Polyurethane Foam Association
Upholstered Furniture Action Council
Analysis Prepared by : Eunie Linden / B.,P. & C.P. / (916)
319-3301