BILL ANALYSIS
----------------------------------------------------------------------
|Hearing Date:April 27, 2009 |Bill No:SB |
| |772 |
----------------------------------------------------------------------
SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: SB 772Author:Leno
As Introduced: February 27, 2009 Fiscal: Yes
SUBJECT: Home furnishings: juvenile products.
SUMMARY: Would exempt "juvenile products," as defined, from the
fire retardant requirements pursuant to federal law and the
regulations of the Bureau of Home Furnishings and Thermal
Insulation (Bureau), except that the Bureau may, by regulation
modify this exemption if the Bureau determines that any juvenile
products pose a serious fire hazard.
Existing law:
1)Provides for the Bureau within the Department of Consumer Affairs
(DCA), under the supervision and control of a Chief who is
appointed by the Governor. The Chief is under the supervision
and control of the Director of DCA.
2)Provides that the Bureau administers the Home Furnishings and
Thermal Insulation Act (HFTI Act) that provides for the licensing
and inspection of businesses that manufacture and sell
upholstered furniture, bedding and thermal insulation.
3)Provides that the Bureau also enforces other regulations required
by the HFTI Act, such as health and safety standards, product
labeling requirements, and truth in advertising laws.
4)Requires, pursuant to the HFTI Act, mattresses, and box springs
manufactured for sale in this state to be fire retardant and also
requires all seating furniture sold or offered for sale in this
state to be flame retardant.
5)Requires the Bureau to adopt regulations requiring that fire
SB 772
Page 2
retardant mattresses and box springs and other bedding products
meet a specified resistance to an open flame test.
6)Defines a "fire retardant" product as a product that meets the
regulations adopted by the Bureau and does not include furniture
used exclusively for the purpose of physical fitness and
exercise.
7)Prohibits a person from manufacturing, processing, or
distributing in commerce a product, or a flame-retardant part of
a product, containing more than 0.1% pentaBDE (penta brominated
diphenyl ether) or octaBDE (octa brominated diphenyl ether) -
both are flame retardant chemicals.
This bill:
1)Would exempt juvenile products, as defined, from meeting the
fire-retardant requirements and regulations of the Bureau.
2)Defines "juvenile products" as any item of bedding or seating
furniture with a primary intended use for children six years of
age or younger. Provides that the term includes, but is not
limited to, portable cribs, car seats, strollers, bassinets,
infant carriers, walkers, backpack child carriers, infant and
toddler pillows, and toddler chairs.
3)Specifies that the Bureau may, by regulation, modify this
exemption if it determines that any juvenile products pose a
serious fire hazard.
FISCAL EFFECT: Unknown. This measure has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. Friends of the Earth is the Sponsor of this measure.
According to the Sponsor this legislation will end the
requirement that juvenile products contain toxic fire retardant
chemicals, unless the Bureau determines that such products
represent a fire safety risk. The Sponsor indicates that
according to the Consumer Product Safety Commission, there is no
evidence that juvenile products are associated with the risk of
fire.
The Sponsor points out that halogenated fire retardants commonly
used in juvenile products are linked to numerous public health
concerns, including cancer, neurological and reproductive
SB 772
Page 3
impairments, birth defects, thyroid disruption, hearing deficits,
and learning disorders such as ADHD (attention deficit
hyperactivity disorder). The Sponsor further states that many
halogenated fire retardants are persistent, accumulate up the
food chain, and are now found at increasing levels in people and
wildlife. Developing fetuses and young children are the most
vulnerable. The Sponsor argues that the prohibiting the use of
these chemicals in baby products will protect the health of our
children, the general public, and the environment
2.Background. According to the Author, tests have found that
highly toxic fire retardant chemicals are present in the
polyurethane foam in baby products including portable cribs,
bassinets, car seats, strollers, playpens, swings, nursing
pillows, pregnancy pillows, high chairs and toddler chairs; items
that infants and young children come into repeated intimate
contact with on a daily basis. The Author indicates that these
products are treated with these chemicals in order to meet
California's flammability standard, Technical Bulletin 117 (TB
117), despite the lack of any evidence from federal or state
agencies such as the Consumer Product Safety Commission or the
Bureau that these products represent a fire hazard.
As the Author explains, TB 117, a California state flammability
requiring that the foam in furniture and baby products resist an
open flame for 12 seconds, has led to the annual use of millions
of pounds of fire retardant chemicals in California since the
early 1980's. Halogenated fire retardants, which are the least
expensive and most likely chemicals used to meet this regulation,
have been linked to endocrine disruption, neurological and
developmental impairments, cancer, birth defects, learning
disabilities such as ADHD, and a host of other health disorders.
The chemicals migrate from products in the home into household
dust, humans, pets, and the environment. A typical household can
contain up to several pounds of these chemicals, and their
extensive use to meet TB 117 has led to contamination of the
global environment.
According to the Author, these fat-loving chemicals close the
placenta and accumulate in body fat and breast milk. Thus, a
developing fetus is exposed to flame retardants in utero and
continue to receive postnatal exposure from its mother's milk.
Today, virtually every Californian tested has been found to have
fire retardant chemicals stored in their bodies, with babies and
young children showing the highest levels. Elevated levels have
also been found throughout the food chain, especially in dairy
SB 772
Page 4
products, meat, poultry and fish.
The Author notes that eleven U.S. states, including California,
have already banned two classes of halogenated flame retardants,
penta and octaBDE, from use. Both Maine and Washington have
furthered these efforts and recently banned an additional
halogenated chemical called decaBDE. In December of 2007, the
Consumer Product Safety Commission (CPSC) voted for a draft
furniture flammability standard that will reduce the use of
halogenated fire retardants nationwide, and that the CPSC
Commissioner concluded that "No one wants to trade fire risks for
chemical toxicity risks."
a) Description of Halogenated Fire Retardants. The most
commonly known halogenated fire retardants are brominated and
chlorinated chemicals. Manufacturers of consumer products
commonly add flame-retardant chemicals to plastics and other
flammable materials to reduce the risk of fire. Brominated
fire retardants (BFRs) are chemicals that reduce the spread of
fire in a variety of common products such as electronic
casings, polyurethane foam, and commercial textiles. The most
studied of the brominated flame retardants are the
polybrominated diphenyl ethers (PBDEs) which were first
introduced into the market over thirty years ago. These
chemicals escape into the environment during manufacture, use,
and disposal of products containing this flame retardant.
Chlorinated fire retardants (CFRs) are mainly used in
plastics. Chlorine is used for the production of polyvinyl
chloride (PVC). PVC is used in many applications including
construction and furnishings. The chlorine in the PVC makes
the material flame retardant. Like BFRs, CFRs accumulate in
the environment.
PBDEs, a type of BFR, are closely related in structure and
behavior of polychlorinated biphenyls (PCBs). PCBs are known
to have neurotoxic and carcinogenic action and were banned by
Congress in 1976. Such similarity of the chemicals' molecular
structures raises concern about potential biological hazards.
Proponents of this measure assert that BFRs and CFRs may
cause reproductive, developmental, neurological or other
health problems, including cancer, birth defects, learning
disorders, and mental retardation.
b) Governor's Green Chemistry Initiative. In April 2007, the
Secretary for Environmental Protection (Secretary) launched
the California Green Chemistry Initiative (GCI) in
SB 772
Page 5
collaboration with California Environmental Protection Agency,
boards, departments and offices, as well as other state
agencies. The Secretary asked the Department of Toxic
Substances Control (DTSC) to lead the initiative and conduct a
broad public process to generate ideas, develop overall policy
goals and make recommendations. In December 2008, the
Secretary released the California Green Chemistry Initiative
Final Report prepared by DTSC and presented "policy
recommendations for strengthening the protection of public
health and our environment and moving toward a sustainable
California." The Secretary stated that six recommendations
were developed through the GCI and constitute a far-reaching,
market-driven strategy with an ambitious aim; the launch of a
new chemicals framework and a quantum shift in environmental
protection. "These landmark policy options will continue
California's environmental leadership and foster a new era in
the design of a new consumer products economy - inventing,
manufacturing and using toxic-free, sustainable products."
One of the recommendations was to accelerate the quest for
safer products, creating a systematic, science-based process
to evaluate chemicals of concern and alternatives to ensure
product safety and reduce or eliminate the need for
chemical-by-chemical bans.
The DTSC in presenting the report to the Secretary indicated
that Green Chemistry is a systematic scientific and
engineering approach that seeks to reduce the use of hazardous
chemicals and the generation of toxic wastes by changing how
society designs, manufactures, and uses chemicals in processes
and products. "Rather than managing wastes after
end-of-product life, Green Chemistry shifts our focus to
designing chemicals, processes, and goods that have less or no
adverse effects throughout their lifecycle on California's
people and our environment." The DTS further stated that as a
state, " The most important thing we can do is give all our
children [underlined for emphasis] the chance to fulfill their
dreams, achieve their potential, and work together in
productive and sustainable jobs and communities. The report
sets forth new ideas to protect our children's health from
toxic chemicals in products . . ." [underlined for emphasis]
c) Recent Legislation to Deal with Dangerous Chemicals. AB
302
(Chan, Chapter 205, Statutes of 2003) banned the use of penta-
and octa- brominated diphenyl ethers after January 1, 2008.
SB 772
Page 6
SB 509 (Simitian, Chapter 560, Statutes of 2008) requires DTSC
to establish a Toxics Information Clearinghouse for the
collection, maintenance, and distribution of specified
chemical information.
AB 1879 (Feuer, Chapter 559, Statutes of 2008) gave the DTSC the
responsibility to develop, in regulation, processes by which
chemicals of concern are identified, and once identified,
scientifically assessed, along with their alternatives.
AB 706 (Leno, 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 retardancy standards set by the Bureau, and to meet other
requirements as specified. This measure failed on the Senate
Floor.
d) DTSC's Response to Dealing with Fire Retardant Chemicals.
In October 6, 2008, the Author sent a letter to the Governor
asking for him to deal with the serious issue of chemical
contamination in California homes and protect the health and
safety of California's children by taking the following steps:
(1) order the immediate suspension of TB 117 so that new
furniture will not be contaminated by these fire retardants;
(2) order suspension of any expansion of the flammability
standard to bedding such as pillows, comforters, and filled
bed clothing; (3) require the Bureau to enforce the current
ban on penta-BDE in imported furniture; (4) accelerate the
development of an alternatives assessment process in the Green
Chemistry Initiative, and use that process to look first at
PBDE and chlorinated fire retardants found in furniture; and,
(5) use new authority in AB 1879 and existing authority to
prohibit the use of these dangerous chemicals in intimate
household items such as furniture, mattresses, and bedding.
A response to the Author's letter was provided by DTSC. In
DTSC's letter to the Author they maintained that these fire
retardant chemicals have been historically used to ensure that
furniture and bedding are manufactured to standards that
provide for fire safety; another very critical consumer
protection and public safety goal. As well-intentioned as
recent chemical prohibitions and product bans are, they can
SB 772
Page 7
result in significant negative unintended consequences that
can negate or limit their intended benefits. "Without a
systematic method of ensuring that substitutes exist that do
not pose the same risks or hazards as a chemical that is being
prohibited, and that perform the same beneficial function of
those chemicals being prohibited, chemical prohibitions and
product bans can easily result in a regrettable solution."
DTSC indicated that as to the ban required by AB 302, they did
not know what chemicals have been substituted as a result of
this ban and that there has been no system in place to
evaluate any of the alternatives which may have been developed
and now be entering the marketplace. This response was in
spite of the fact that one of the primary policy
recommendations of the Green Initiative was to ensure that
such systems are in place.
Also, DTSC indicates, although they agree that the AB 303 ban
should be enforced, the legislation did not provide for
enforcement and DTSC cannot unilaterally decide to enforce a
statute for which no enforcement provisions have been
provided. "Absent enforcement provisions and resources,
compliance with this prohibition is left to manufacturers and
to individuals acting on their own behalf." This is an area
they indicated that they would work with the Author to
address.
In implementing AB 1879, DTSC indicated that they need to adopt
regulations which will allow for a number of potential
regulatory actions based on their assessment, from chemical
bans and prohibitions, to labeling or other notification, to
requirements to control access and exposure to chemicals of
concern to requiring that grants be funded to pay for the
development of alternatives where no feasible safer
alternatives exists. Although the regulations do not have to
be adopted till January 1, 2011,
DTSC intends to adopt its regulations regarding alternative
analysis well before that deadline.
e) Bureau of Home Furnishings and Thermal Insulation (Bureau)
New Flame Retardancy Regulations. According to the Author,
the Bureau is currently preparing new flame retardancy
regulations, even as existing law on flame retardancy appears
to conflict with the larger objectives of the Green Chemistry
SB 772
Page 8
Initiative. The Author sent a letter on April 8, 2009, to the
Governor along with other Chairs' of Senate and Assembly
Committees requesting that the new flammability regulations
(Technical Bulletin 604 or TB 604) be suspended and that a
multi-agency task force be convened to evaluate current fire
safety standards in light of reported health and environmental
hazards posed by toxic flame retardant chemicals and
materials. Other steps requested include ensuring that
development and promulgation of TB 604 does not add even more
toxic flame retardant chemicals or material to California
households and to ensure that fire safety requirements,
current and future, are in keeping with the goals of the
California Green Chemistry Initiative.
3.Arguments in Support. Commonweal , Consumer Federation of
California and Environmental Working Group are proponents of this
measure and argue that this important measure will protect the
health of California children by removing any obsolete and
frankly counterproductive state regulation that requires products
designed for children to be treated with highly toxic flame
retardants. This measure will pave the way for the development
of a revised standard that considers current scientific knowledge
about the adverse impacts of fire retardants. The proponents
further state that some of the chemicals being used today were
banned from use in children's sleepwear in 1977 by the Consumer
Product Safety Commission, but are still creating exposure to
children through direct physical or oral contact with furniture.
"This measure strikes the proper balance between protecting
infants and children from harmful toxic exposures and any limited
use of fire retardants."
The Sierra Club of California and Contra Costa Heath Services argue
that
TB 117 has led to the use of millions of pounds of flame retardant
chemicals in California since the early 1980's and that although
California has seen a 38% reduction in fire-related deaths from
1980-1999, other states have had an even greater decline in
deaths without adopting standards that lead to the use of toxic
chemicals. The health impacts are unknown on humans and
children are being exposed to these harmful chemicals that have
not proven to be effective. "Children and infants are most
sensitive to the adverse health effects of this class of chemical
toxins. Our babies are born with halogenated fire retardants in
their bodies and get a further dose from their mother's milk and
exposure to baby products. Five years from now we will look back
on the use of HFTs in children's products and ask ourselves,
SB 772
Page 9
'What could they have been thinking?'"
4.Arguments in Opposition. Health African American Families II
(HAAF) indicates that Californians currently are protected by the
highest standards of fire safety in the country and that state
standards for fire protection with the use of flame-retardant
chemicals has reduced the number of fire fatalities by more than
64 percent. HAAF argues that removing these life-saving fire
retardants from children's products without an adequate
replacement is misguided and would put children at serious risk.
Additionally, low income and minority communities already bear a
disproportionate share of fire-related deaths and injuries and
the proposed change in policy would only exacerbate the inequity.
5.Can All Juvenile Products be Exempt from Bureau Fire Retardant
Standards? This measure would exempt juvenile products, as
defined, from the requirements of Section 19161 of the Business
and Professions Code. As indicated, Section 19161 authorizes the
Bureau to establish fire retardant standards pursuant to
regulation for three types of products: mattress and mattress
sets, other bedding products, and all seating furniture sold in
the state, thus the juvenile versions of these products would be
the only type of products covered by the bill. Specifically,
Section 19161 requires all mattresses and mattress sets in
California to be fire retardant in accordance with standards set
by the U.S. Consumer Product Safety Commission (CPSC) and
authorizes the Bureau to adopt regulations as necessary to
implement this standard. The Bureau did develop a state standard
for mattress flammability, known as TB 603, on January 1, 2005.
However, the CPSC later adopted a national standard on July 1,
2007 (Part 1633 of Title 16 of the Federal Code of Regulations),
that was substantially similar to the California flammability
standard. The Bureau now enforces the federal standard, and it
is questionable whether the Bureau would have the ability to
exempt products pursuant to state legislation. The CPSC
regulation specifically mentions that juvenile mattresses and
mattress sets including crib mattresses are included in the scope
of regulation.
SUPPORT AND OPPOSITION:
Support:
Friends of the Earth (Sponsor)
As You Sow Foundation
SB 772
Page 10
Commonweal
Contra Costa Health Services
Consumer Federation of California
Environmental Working Group
Healthy Child Healthy World
Making Our Milk Safe
MomsRising.org
Sierra Club California
Opposition:
Health African American Families II
Consultant:Bill Gage