BILL NUMBER: SB 763 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 28, 2015
AMENDED IN ASSEMBLY JULY 8, 2015
AMENDED IN ASSEMBLY JUNE 19, 2015
AMENDED IN SENATE JUNE 2, 2015
AMENDED IN SENATE MAY 7, 2015
AMENDED IN SENATE APRIL 6, 2015
INTRODUCED BY Senator Leno
FEBRUARY 27, 2015
An act to add Sections 19095 and 19161.4 to the Business and
Professions Code, relating to home furnishings.
LEGISLATIVE COUNSEL'S DIGEST
SB 763, as amended, Leno. Juvenile products: 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 mattress, 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.
Existing state law requires upholstered furniture and bedding to
contain a specified label that is securely fastened in a manner
approved by the bureau 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.
The 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 juvenile products, as
defined, sold in California to indicate whether or not the
product contains that sells juvenile products that
contain added flame retardant chemicals, as defined,
by including in California, to include a
specified statement on a label, that meets certain labeling
requirements, securely attached to the product.
requirements.
The bill would require the manufacturer of the juvenile product to
retain sufficient documentation to show whether flame retardant
chemicals were added to a juvenile 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 juvenile 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 juvenile product or components thereof sold in
California from products marked "contains NO added flame
retardant chemicals" that are not labeled as
containing added flame retardant chemicals for
testing for the presence of added flame retardant chemicals, as
specified. If the department's testing shows that a juvenile product
labeled as "contains NO added flame retardant chemicals"
that is not labeled as containing added flame
retardant chemicals is mislabeled because it contains added
flame retardant chemicals, the bill would authorize the bureau to
assess fines for violations against manufacturers of the juvenile
product and component manufacturers, as specified.
The bill would require the bureau to make information about any
citation determination 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. The bill would provide that these provisions
would apply to juvenile products manufactured on and after July 1,
2016, for retail sale in the state.
Because a violation of the bill's requirements would be a crime,
the bill would impose a state-mandated local program.
The Home Furnishings and Thermal Insulation Act requires that all
mattresses and mattress sets manufactured for sale in this state, and
all seating furniture sold or offered for sale for use in this
state, be fire retardant, as defined. Existing law requires that all
bedding products, other than mattresses and mattress sets, that the
bureau determines to contribute to mattress bedding fires comply with
specified regulations adopted by the bureau.
Existing law authorizes the chief of the bureau, subject to
specified approval, to exempt items of upholstered furniture that are
not deemed to be a serious fire hazard from these fire retardant
requirements. Existing regulation exempts from these fire retardant
requirements specified articles of upholstered furniture that include
bassinets, booster seats, and car seats that are not used for, or
in, facilities designed for the care or treatment of humans.
This bill would exempt from the aforementioned fire retardant
requirements under the act specified articles of juvenile products,
as provided.
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. Section 19095 is added to the Business and Professions
Code, to read:
19095. (a) For the purposes of this section, the following
definitions shall apply:
(1) "Component" means the separate constituent parts of juvenile
products sold in California, specifically cover fabrics, barrier
materials, resilient filling materials, and plastic parts.
(2) "Juvenile product" means a product subject to the Home
Furnishings and Thermal Insulation Act and intended for use by
infants and children under 12 years of age, such as a bassinet,
booster seat, infant car seat, changing pad, floor play mat,
highchair, highchair pad, infant bouncer, infant carrier, infant
seat, infant swing, infant walker, nursing pad, nursing pillow,
playpen side pad, playard, portable hook-on chair, stroller, children'
s nap mat, and infant foam crib mattress. Products subject to the
requirements of Section 19094 are not subject to the requirements of
this section. "Juvenile product" does not include products required
to meet federal flammability standards contained in Part 1632 or 1633
of Title 16 of the Code of Federal Regulations.
(3) "Added flame retardant chemicals" means flame retardant
chemicals that are present in any juvenile product or component
thereof at levels above 1,000 parts per million.
(4) "Flame retardant chemical" means any chemical or chemical
compound for which a functional use is to resist or inhibit the
spread of fire. Flame retardant chemicals include, but are not
limited to, halogenated, phosphorous-based, nitrogen-based, and
nanoscale flame retardants, flame retardant chemicals listed as
"designated chemicals" pursuant to Section 105440 of the Health and
Safety Code, and any chemical or chemical compound for which "flame
retardant" appears on the substance Safety Data Sheet (SDS) pursuant
to Section 1910.1200(g) of Title 29 of the Code of Federal
Regulations.
(5) "Chemical" means either of the following:
(A) An organic or inorganic substance of a particular molecular
identity, including any combination of those substances occurring, in
whole or in part, as a result of a chemical reaction or occurring in
nature, and any element, ion, or uncombined radical, and any
degradate, metabolite, or reaction product of a substance with a
particular molecular identity.
(B) A chemical ingredient, which means a substance comprising one
or more substances described in subparagraph (A).
(6) "Molecular identity" means the substance's properties listed
below:
(A) Agglomeration state.
(B) Bulk density.
(C) Chemical composition, including surface coating.
(D) Crystal structure.
(E) Dispersibility.
(F) Molecular structure.
(G) Particle density.
(H) Particle size, size distribution, and surface area.
(I) Physical form and shape, at room temperature and pressure.
(J) Physicochemical properties.
(K) Porosity.
(L) Solubility in water and biologically relevant fluids.
(M) Surface charge.
(N) Surface reactivity.
(7) "Department" means the Department of Toxic Substances Control.
(8) "Consumer Price Index" means the Consumer Price Index for All
Urban Consumers published by the Bureau of Labor Statistics.
(b) (1) A manufacturer of juvenile products sold in California
shall have a label securely attached to the product,
include, for juvenile products containing added flame
retardant chemicals, a label in plain view, stating the
following:
"The State of California has determined that this product does not
pose a serious fire hazard. The state has identified many flame
retardant chemicals as being known to, or strongly suspected of,
adversely impacting human health or development.
The fabric, filling, and plastic parts of this product:
product contain added flame retardant chemicals."
_____contains added flame retardant chemicals
_____contains NO added flame retardant chemicals"
(2) A manufacturer of juvenile products sold in California shall
indicate the absence or presence of added flame retardant chemicals
by placing an "X" in one of the appropriate blanks.
(3)
(2) The label for juvenile products shall comply with
the labeling requirements of subdivisions (a), (b), and (e) of
Section 1126 of Title 4 of the California Code of Regulations. The
type on the label need not be in all capital letters.
(c) (1) The manufacturer of the juvenile product sold in
California shall retain documentation to show whether flame retardant
chemicals were added. A written statement by the supplier of each
component of a juvenile product 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 juvenile 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) or documentation that the juvenile
product does not contain an added flame retardant.
(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 juvenile
product to maintain the documentation required by this section, or
for the failure of the manufacturer of the juvenile 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 juvenile products sold in California and
component suppliers shall be jointly and severally liable for
violations of the documentation required in this section.
(D) (i) The bureau shall provide the Department of Toxic
Substances Control with a selection of samples from juvenile products
marked "contains NO added flame retardant chemicals"
that are not labeled as containing 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 juvenile 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. The bureau shall reimburse the
department for the cost of testing for the presence of added flame
retardant chemicals in juvenile products marked "contains NO
added flame retardant chemicals." that are not
labeled as containing added flame retardant chemicals.
(ii) No later than August 1 of each fiscal year, the bureau shall
assess available resources and determine the number of tests to be
conducted in the corresponding fiscal year, pursuant to this
subparagraph.
(E) (i) If the department's testing shows that a juvenile product
not labeled as "contains NO added flame retardant
chemicals" containing added flame retardant chemicals
is mislabeled because it contains added flame retardant
chemicals, the bureau may assess fines for violations against
manufacturers of the juvenile 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 the 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 juvenile product
that is not labeled as "contains NO added flame
retardant chemicals" containing 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
juvenile 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 juvenile product.
(v) If the department's testing shows that a juvenile product
that is not labeled as "contains NO added flame
retardant chemicals" containing 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
juvenile products if the manufacturer wishes to retain the "contains
NO added flame retardant chemicals" designation on the label required
by subdivision (b).
(d) (1) The bureau shall make information about any
citation determination 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 juvenile 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.
(f) Electric and electronic units or components, including, but
not limited to, power cords or power supply units, motor assemblies,
Bluetooth modules, vibration units, light and sound units, circuit
boards and wiring, are excluded when determining whether a product
contains added flame retardants for purposes of the labeling
requirements of this section. The chief may, at his or her
discretion, subject to the approval of the director, clarify this
list in regulation.
(g) This section shall apply to juvenile products manufactured on
and after July 1, 2016, for retail sale in the state.
SEC. 2. Section 19161.4 is added to the Business and Professions
Code, to read:
19161.4. The requirements of Section 19161 shall not apply to
juvenile products, as defined in Section 19095.
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.