BILL ANALYSIS Ó
SB 763
Page 1
Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Susan Bonilla, Chair
SB 763(Leno) - As Amended June 19, 2015
SENATE VOTE: 30-10
NOTE: This bill is double-referred, and if passed by this
Committee, it will be referred to the Assembly Environmental
Safety and Toxic Materials Committee.
SUBJECT: Juvenile products: flame retardant chemicals
SUMMARY: Requires a juvenile product manufacturer, as defined,
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
(Bureau) to ensure compliance with labeling and documentation
requirements, as specified.
EXISTING LAW:
1)Establishes the Home Furnishings and Thermal Insulation Act
(Act), administered by the Bureau within the Department of
Consumer Affairs (DCA). The Bureau is under the supervision
and control of a Chief appointed by the Governor, and the
Chief is under the supervision and control of the Director of
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DCA. (Business and Professions Code (BPC) § 19000 et seq.)
2)Provides for the licensing and inspection of businesses that
manufacture and sell upholstered furniture, bedding, and
thermal insulation. (BPC § 19000 et seq.)
3)Defines "seating furniture," including children's furniture,
movable or stationary, as any furniture made or sold with or
without filling material, together with the structural units,
which may be used as a support for the body, limbs, or feet
when sitting or resting in an upright or reclining position.
(BPC § 19006.1)
4)Defines "bedding" as any quilted pad, packing pad, mattress
pad, hammock pad, mattress, comforter, quilt, sleeping bag,
box spring, studio couch, pillow or cushion made of leather,
cloth or any other material, which is or can be stuffed or
filled with any concealed substance or material, which can be
used by any human being for sleeping or reclining purposes.
(BPC § 19007)
5)Requires all mattresses and box springs manufactured for sale
in this state to be fire retardant, as defined to meet the
federal standards for resistance to open-flame test, and
authorizes the Bureau to adopt regulations to implement those
standards. (BPC § 19161)
6)Requires other bedding products to comply with regulations
adopted by the Bureau specifying that those products be
resistant to open-flame ignition. (BPC § 19161)
7)Requires all seating furniture sold or offered for sale,
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
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materials are added, to be fire retardant and labeled in a
manner specified by Bureau. (BCP 19161)
8)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 the Bureau. (BPC § 19161.3)
9)Authorizes the Chief, 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)
10)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)
11)Exempts eighteen juvenile products (bassinets, booster seats,
car seats, changing pads, floor play mats, highchairs,
highchair pads, infant bouncers, infant carriers, infant
seats, infant swings, infant walkers, nursing pads, nursing
pillows, playpen side pads, playards, portable hook-on chairs,
strollers) from meeting the flammability requirements of TB
117-2013. (Article 13, Division 3, Title 4, CCR § 1374.2)
12)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 (types
of polybrominated diphenyl ethers, or "PBDEs"), except as
specified. (Health and Safety Code § 108922)
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THIS BILL:
13)Defines the following terms:
a) "Component" is the separate constituent parts of
juvenile products sold in California, specifically cover
fabrics, barrier materials, resilient filling materials,
and plastic parts.
b) "Juvenile product" is a product subject to the Act and
intended for use by infants and children under 12 years of
age, including: bassinets, booster seats, infant car seats,
changing pads, floor play mats, highchairs, highchair pads,
infant bouncers, infant carriers, infant seats, infant
swings, infant walkers, nursing pads, nursing pillows,
playpen side pads, playards, portable hook-on chairs,
strollers, children's nap mats, and infant foam crib
mattresses. Provides that products subject to the
upholstered furniture labeling requirements are not subject
to this bill, and that a "juvenile product" does not
include products required to meet federal flammability
standards for mattresses and mattress pads.
c) "Added flame retardant chemicals" are flame retardant
chemicals that are present in any juvenile product or
component thereof at levels above 1,000 parts per million.
d) "Flame retardant chemicals" are any chemical, as
defined, or chemical compound for which a functional use is
to resist or imbibe the spread of fire, including
halogenated, phosphorus-based, nitrogen-based, and
nanoscale flame retardants, flame retardant chemicals
listed as "designated chemicals" pursuant to the California
Environmental Contaminant Biomonitoring Program, and any
chemical or chemical compound for which "flame retardant"
appears on the substance Safety Data Sheet (SDS) pursuant
to federal regulations.
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14)Requires a manufacturer of juvenile products to have a label
securely attached to the product, in plain view, stating
whether or not the fabric, filling, and plastic parts of the
product contain added flame retardant chemicals, as specified.
15)Requires retailers of juvenile products sold through paper
catalogs or online in California to place the flame retardant
chemical statement clearly and conspicuously, and in close
proximity to the juvenile product's price on each page, or
webpage, that contains a detailed description of the juvenile
product and its price.
16)Requires a manufacturer of juvenile products sold in
California to retain documentation to show whether flame
retardant chemicals were added. Provides that a written
affidavit by the supplier of each component of a juvenile
product attesting that flame retardant chemicals were or not
added is sufficient documentation.
17)Requires the Bureau to ensure compliance with these labeling
and documentation requirements, and requires, within 30 days
of a request by the Bureau, a manufacturer of a juvenile
product sold in California to provide the Bureau with
documentation establishing the accuracy of the flame retardant
chemical statement on the label.
18)Authorizes the Bureau to assess fines of not less than $2,500
and not more than $15,000, depending on specified factors, for
the failure of the manufacturer of the juvenile product to
maintain the documentation required or to provide requested
documentation to the Bureau.
19)Requires the Bureau to provide the California Department of
Toxic Substances Control (DTSC) with samples of components of
the product from products marked "contains NO added flame
retardant chemicals" for testing for the presence of added
flame retardant chemicals, as specified.
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20)Requires DTSC to provide the results of all testing to the
Bureau, and the Bureau to reimburse the DTSC for the costs of
testing. Requires the Bureau to assess available resources no
later than August 1 of each fiscal year and determine the
number of tests to be conducted in the corresponding fiscal
year.
21)Authorizes the Bureau, if the DTSC's testing shows that a
juvenile product is mislabeled because it contains added flame
retardant chemicals, to assess fines for violations against
manufacturers of the juvenile product and component
manufacturers to be held jointly and severally liable for the
violation. Also authorizes the Bureau to request that the
label 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 product.
22)Authorizes the Bureau to assess fines between $2,500 to
$10,000, depending on specified factors, or for mislabeling a
product.
23)Requires the Bureau to adjust all minimum and maximum fines
imposed by these provisions for inflation every five years.
24)Requires the Bureau to make information about any citation
issued pursuant to these provisions on the Bureau's website,
specifies that it is the duty of the Bureau to receive
complaints from consumers regarding juvenile products sold in
California, and authorizes the Bureau to adopt regulations to
carry out the provisions of the bill.
25)Provides that fire retardant requirements shall not apply to
juvenile products.
FISCAL EFFECT: According to the Senate Appropriations Committee
Analysis dated May 28, 2015, "Costs pressures, in the low
hundreds of thousands of dollars, to the Home Furnishing and
Thermal Insulation Fund (HFTI Fund, special) for the
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enforcement of these requirements, including testing for label
accuracy."
COMMENTS:
Purpose. This bill is sponsored by the California Professional
Firefighters , the Center for Environmental Health , and the
Consumer Federation of California . According to the author,
"This bill requires manufacturers of specific children's
products to disclose on a label whether or not the product
contains added flame retardant chemicals. Infants and small
children spend hours in close contact with items such as
changing pads, nursing pillows, and strollers. This label will
only apply to a narrow class of products that have a history of
containing flame retardants in their foam fillings?.Flame
retardant chemicals are associated with cancer, decreased
fertility, hormone disruption, lower IQ, and hyperactivity.
When these chemicals burn, they release dioxin and furans-some
of the most toxic chemicals known to science-that put
firefighters at high risk for cancer and other serious
conditions. Finally, fire reporting data has raised questions
as to whether flame retardants actually provide additional fire
safety.
As a result of growing public concern, California recently moved
away from the open flame test. The change to a more reasonable
smolder test enables manufacturers to meet fire safety with or
without the use of flame retardant chemicals. SB 1019 (Leno)
gave consumers a way to know if furniture contains flame
retardant chemicals. However, the SB 1019 label doesn't apply
to these child and infant products, since they pose little or no
fire risk and were exempted from California's flammability
standard. Testing has proven that exemption from the
flammability standard does not mean products are free from flame
retardant chemicals. Parents simply don't know, and lack the
information they need to send an important market signal?.SB 763
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allows for the free market to operate at its best- when
consumers have the knowledge to seek out and purchase what they
want?. SB 763 simply gives consumers a way to make informed
choices and protect children from harm."
Background. 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, merged BHFTI with the Bureau of
Electronic and Appliance Repair together to create the Bureau.
California is one of only two states (Ohio is the other) that
have product testing laboratories. California leads the nation
in setting 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. The Bureau 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. The Bureau'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.
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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 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 2012, Governor Brown directed the Bureau 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
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, the Bureau
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, the Bureau
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
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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 were required to come into
full mandatory compliance on January 1, 2015.
Exempt Products. BPC 19161.5 authorizes the Bureau Chief,
subject to the approval of the DCA Director, "?to exempt items
of upholstered furniture which are deemed not to pose a serious
fire hazard" from fire retardant requirements. Recently, the
Bureau, after examining the low flammability risk associated
with juvenile products (which tend to use less filling materials
and less flammable materials, and are frequently used under care
and supervision of adults), has exempted specified juvenile
products from toxic flame retardant requirements. In 2010, the
Bureau exempted strollers, infant carriers, and nursing pillows
from TB 117 standards (4 CCR 1374.2). Effective January 1,
2014, the Bureau exempted an additional 15 juvenile products,
including: bassinets, booster seats, car seats, changing pads,
floor play mats, highchairs, highchair pads, infant bouncers,
infant seats, infant swings, infant walkers, nursing pads,
playpen side pads, play yards, and portable hook-on chairs. In
addition, while the Bureau used to require exempt products to
display a label that stated the product was exempt from TB 117,
exempt products are no longer required to have that label.
According to the author, while many juvenile products are exempt
from flammability standards, tests have found that flame
retardants chemicals are still present in juvenile products that
are in close contact with infants and young children, including
nap mats, bassinets, changing pads, strollers, playpens, swings,
nursing pillows, highchairs, and toddler chairs.
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. These
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chemicals are not chemically bonded to products, and mix with
household dust that is ingested, inhaled, or otherwise absorbed
into humans, pets, and wildlife. As consumer products 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 near contaminated
dust actually ingest these chemicals through their frequent
hand-to-mouth behavior. As a result, young children have been
found to have 3-5 times higher levels of flame retardant
chemicals than their mothers. 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. Growing
evidence shows that many flame retardant chemicals have serious
human and environmental health impacts, including cancer,
decreased fertility, hormone disruption, lower IQ, and
hyperactivity.
Identifying Flame Retardant Chemicals. 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
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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 phased 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 may be likely to cause, adverse health
effects.
For example, California's Environmental Contaminant
Biomonitoring Program, which identifies and monitors "designated
chemicals" and their metabolites that are present in the bodies
of Californians, or 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" include many of the chemicals that have
since been phased out of use. 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. As a result, while many flame
retardant chemicals have been identified as posing risk of
significant harm, e.g. certain PBDEs under state statute and
TDCPPs and TCEPs under Proposition 65, other flame retardants
with similar structures may continue to be used despite the
likelihood of causing similar health effects.
Prior Related Legislation. SB 1019 (Leno), Chapter 862,
Statutes of 2014, required an upholstered furniture manufacturer
to indicate on the product label whether or not a product
contains added flame retardant chemicals, by including a
specified statement; required manufacturer to retain
documentation, as specified, of whether or not flame retardant
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chemicals were added to the product, and provide that
documentation to the Bureau; and authorized the Bureau to assess
fines for violations of the above provisions, as specified.
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.
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. STATUS: 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. STATUS: 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.
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. STATUS: 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
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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. STATUS: 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. STATUS: 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.
ARGUMENTS IN SUPPORT:
The California Professional Firefighters Association (sponsor)
states, "SB 763 provides consumers a pathway to exercise a
choice in purchasing safer juvenile products, which, in turn,
creates a direct and positive impact on the reduction of toxic
exposures to firefighters....It's important to note that SB
763's leading opponent -the American Chemical Council (ACC),
which is the chemical industry's trade association - has a $5
billion per year vested financial interest in the continued use
of flame retardant chemicals?.In recent years, ACC has taken its
profit-driven, misinformation campaign on the road, going from
statehouse to statehouse in an effort to beat back legislation
aimed at disclosing these harmful chemicals and strengthening a
consumer's right-to-know?.The opponents' deceptive tactics have
repeatedly been called out time and again, particularly for the
use of paid consultants shopping suspect conclusions."
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The Center for Environmental Health (CEH) (sponsor) writes that,
"While manufacturers no longer have to meet a flammability
standard, there is nothing that prohibits the use of flame
retardant chemicals in children's products. CEH has conducted
testing of juvenile products and found flame retardant chemicals
in numerous juvenile products including children's nap mats,
changing pads, and infant carriers (as worn by parents)?.Flame
retardant chemicals can migrate out of products into air and
dust where children are exposed to them. These chemicals are
associated with a variety of health concerns, including cancer,
lower birth weight, decreased fertility, hormone disruption,
lower IQ, and hyperactivity. Due to children's frequent
hand-to-mouth behavior, young children have 3-5 times higher
levels of certain flame retardants than their mothers. It is
also of great concern that children of color and children from
low-income communities have the highest exposure?.Exposure to
toxic chemicals during these critical windows of development can
cause subtle changes and permanently alter their development and
cause adverse health effects?.Without this type of label it will
be impossible for parents to identify products that either do or
[do] not contain flame retardant chemicals?.Juvenile products
are routinely handed down to family and friends as well as
donated to thrift stores, so the ability of these second-hand
users to identify products that do or do not contain family
retardant chemicals is essential. It will also provide
businesses a standard format to communicate the information to
families."
The Consumer Federation of California (sponsor) writes, "SB
763's proposed disclosures would provide uniform information to
consumers in a simple and accessible manner?.SB 763 will ensure
that the public is able to make informed choices, as consumers
currently have no way of knowing whether a child's product
contains fire retardant chemicals?.Consumers are demanding
products without added flame retardants, and currently, they
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have absolutely no way to evaluate one product versus another.
Without a label indicating the presence of flame retardant
chemicals, consumers are not able to send market signals based
on their purchasing preferences?.Consumers have a right to know
whether harmful substances are present in bassinets, playpens,
carriers, and other items that are in immediate contact with
their kids as they crawl on the floor or put products in their
mouths."
A number of supporters, including Breast Cancer Action , Breast
Cancer Fund , California League of Conservation Voters ,
Californians for a Healthy and Green Economy , Center for
Environmental Health , Coalition for Clean Air , Environmental
Working Group , Instituto de Educación Popular del Sur de
California , Pesticide Action Network North America , Physicians
for Social Responsibility - Los Angeles , San Francisco Bay Area
Physicians for Social Responsibility , and Southern California
Coalition for Occupational Safety and Health write in support,
"Manufacturers are able to product safe products without adding
toxic flame retardants, yet families have no way of knowing
whether a child's product does or does not contain
them?.Families have a right to know if the products they
purchase for young children contain flame retardant chemicals."
ARGUMENTS IN OPPOSITION:
The Juvenile Products Manufacturers Association (JPMA) also
writes, "In 2013, the [Bureau], in conjunction with the JPMA,
concluded that the juvenile products identified in SB 763 were
unnecessarily subject to flammability standards as they do not
pose a serious fire hazard. [the Bureau] then exercised its
authority to exempt these products from their flammability
standards, as specified in the [BPC]. At the same time in 2013,
the [Bureau] also removed the labeling requirements for these
exempted products stating that 'an exemption label is
unnecessary and unduly burdensome on manufacturers.' SB 763
would subject companies that do not use flame retardants and are
not presently subject to labeling requirements, to comply with a
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new regulatory program that requires record keeping and testing
data when no potential harm exists. This requirement would add
significant burdens to companies?. JPMA believes it is very
important that labeling requirements provide information to the
consumer that is easily understood and does not dilute the
message it is trying to convey. This can be accomplished in SB
763 by removing the labeling requirement for products and
components that do not contain intentionally added flame
retardants."
The California Retailers Association state, "While each retailer
has a different approach on how products are branded and
presented to consumers on a retail website or catalog, there
still is a specific format that has been widely adopted to
assist in the facilitation of e-commerce sales. The disclosure
statement mandates in SB 763 significantly deviates from the
format most major retail websites follow?.It is uncertain how
manufacturers would comply with SB 763. Retailers rely on
information from manufacturers when creating item descriptions.
This bill will require retailers to adopt complex processing
practices of merchandise in order to comply with the law?.SB 763
creates a significant administrative burden and requires onerous
and confusing processing of juvenile products only for
California."
A joint letter of opposition by the American Chemistry Council ,
California Chamber of Commerce , California Manufacturers and
Technology Association , California Citizens Against Lawsuit
Abuse , California Retailers Association , Chemical Industry
Council of California , Civil Justice Association of California ,
and the National Federation of Independent Business argues that
these new requirements "?lack scientific justification, conflict
with existing California consumer product and chemical safety
laws and regulations, and as a result, mislead consumers about
the potential safety of these products?.California should
recognize that there are many different types of flame
retardants with different exposure, health and environmental
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profiles. Yet, under SB 763, manufacturers would be required to
label whether their product contains a flame retardant
regardless of whether the particular chemical presents any
meaningful risk to human health or the environment?.SB 763
circumvents [Proposition 65's] entire process and undermines the
public policy basis for the process by requiring manufacturers
to label their products regardless of whether the available
scientific evidence justifies such action?The bill also
sidesteps the implementation of the Safer Consumer Products
regulation (e.g. "Green Chemistry") by the Department of Toxic
Substances Control?.[Also,] SB 763 would impose a new labeling
requirement on these same products the Bureau has determined are
not required to meet the flammability standard and has
determined no label is necessary."
POLICY ISSUES:
Labeling Requirements for Products without Flame Retardants.
The author asserts that having labels on products without flame
retardants are just as important to consumers, in order that
they be fully informed and make choices based on having complete
information. The sponsors also assert that the label is
necessary because tests have shown that some components continue
to have flame retardant chemicals, and that the only way to
determine whether or not these chemicals exist is to require
manufacturers to know and to label them as such. For example,
if a consumer is looking at two products, one with a label that
says flame retardants are present, and another that has no
label, how will a consumer know that the one without the label
has no flame retardants? A consumer may assume the product is
categorized differently, or may have simply violated a labeling
requirement, instead of being able to know conclusively whether
flame retardants are present or not. The sponsors also assert
that labels will make it easier for those who use second hand
goods to know whether their product contains flame retardants.
The author also asserts that requiring a label on all products
will help the Bureau implement these provisions by making it
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easier for the Bureau to identify and enforce violations of the
Act-a person who mislabels a product cannot claim that he or she
did not know about the labeling requirement.
However, opponents of this provision believe that requiring a
label is burdensome because many products sold in California are
also sold across the country, so it would effectively require a
manufacturer to label all products for sale across the country.
Opponents also believe that requiring a label on all products
will actually serve the opposite purpose: instead of drawing
consumers to those products, as the author alleges, such a label
will drive those consumers to other products, or confuse
consumers. Opponents believe that because these products are
already exempt, and many manufacturers are moving away from
using flame retardants, the same affect could be achieved if
manufacturers were still subject to the same provisions for
mislabeling a product. Opponents also assert that if products
without flame retardants are required to be labeled, there may
be less of an incentive for manufacturers to reformulate their
components to avoid having the label, as some manufacturers do,
for example, to avoid the Proposition 65 warnings.
While it may be difficult to determine exactly what consumers
want or how knowledge of flame retardants may sway their
purchasing decisions, i.e., whether consumers prefer juvenile
products with added flame retardants, the Committee may wish to
consider whether it is appropriate to first equip consumers with
that information prior to making that decision.
Online and Paper Catalog Notifications. Unlike SB 1019 from
last year, this bill would also require a statement of whether
flame retardants are present to be included in online sales and
in paper catalogs. While it may not be common practice for the
Legislature to mandate specified statements on certain
purchases, the state is currently looking at similar
requirements for Proposition 65 warnings in pending regulations.
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Based on concerns that such notice requirements for online sales
and paper catalog sales may expose retailers to too much
liability, and restrict or complicate existing business
practices for retailers, the author may wish to consider
deleting the notice requirement for online and paper catalog
sales.
Delayed Implementation and Clarifications. In order to provide
manufacturers sufficient time to meet the requirements under
this bill, the author may wish to consider delaying the
operative date until July 1, 2016. In addition, the author may
wish to clarify that the use of electronic components with flame
retardant chemicals, for example, circuit boards, wiring, and
power cords, does not subject a manufacturer to the labeling
requirement.
AMENDMENT(S):
1)On page 6, strike lines 1-17 relating to online and paper
catalog sales.
2)On page 9, add subdivision (f) Electric and electronic units
or components, including, but not limited to, power cords or
power supply units, motor assemblies, blue tooth 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 Bureau Chief may, at his or
her discretion, subject to the approval of the Director of
Consumer Affairs, clarify this list in regulation."
3)On page 9, add subdivision (g) This section shall apply to
juvenile products manufactured after July 1, 2016, for retail
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sale in the state.
REGISTERED SUPPORT:
California Professional Firefighters (sponsor)
Center for Environmental Health (sponsor)
Consumer Federation of California (sponsor)
American Congress of Obstetricians and Gynecologists, District
IX California
Alameda County Board of Supervisors
Alliance for Toxic Free Fire Safety (ATFFS)
Association of Regional Center Agencies
BANANAS
Breast Cancer Action
Breast Cancer Fund
(CAL FIRE Local 2881)
California League of Conservation Voters
Californians for a Healthy & Green Economy
CALPIRG
Center for Environmental Health
Child Care Coordinating Council of San Mateo County (4Cs)
City and County of San Francisco, Department of the Environment
City and County of San Francisco, Mayor Edwin Lee
Clean Water Action
Coalition for Clean Air
Community Action Partnership of Madera County
Consumer Attorneys of California
Dignity Health
Earthjustice
Environment California
Environmental Working Group
First 5 Santa Clara County
Friends of the Earth
Go Kids
Grant David Gillham, Inc.
Health Care Without Harm
Instituto de Educación Popular del Sur de California
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International Association of Fire Fighters
Latinas Contra Cancer
Mommy Greenest
Natural Resources Defense Council (NRDC)
Naturepedic
Pathway LA
Pesticide Action Network North America
Physicians for Social Responsibility - Los Angeles
Plumas Rural Services
San Francisco Bay Area Physicians for Social Responsibility (SF
Bay Area PSR)
SoCalCOSH
Trauma Foundation
REGISTERED OPPOSITION:
American Chemistry Council
California Chamber of Commerce
California Citizens Against Lawsuit Abuse
California Manufacturers and Technology Association
California Retailers Association
Chemical Industry Council of California
Civil Justice Association of California
Juvenile Products Manufacturers Association
National Federation of Independent Business
Southwest California Legislative Council
Analysis Prepared by:Eunie Linden / B. & P. / (916) 319-3301.
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