BILL ANALYSIS
SB 772
Page 1
Date of Hearing: June 30, 2009
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Wesley Chesbro, Chair
SB 772 (Leno) - As Amended: May 5, 2009
SENATE VOTE : 23-14
SUBJECT : Home furnishings: juvenile products.
SUMMARY : Exempts juvenile products, as defined, from fire
retardant requirements and regulations unless the Bureau of Home
Furnishings and Thermal Insulation (BHFTI) determine the product
poses a serious fire hazard. Specifically, this bill :
1)Exempts juvenile products from fire retardant requirements and
the regulations adopted there-under for specified bedding
products and seating furniture.
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. 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)Authorizes BHFTI, by regulation, to modify the exemption if
the BHFTI determines that any juvenile products pose a serious
fire hazard.
4)Provides that the exemption under this section does not apply
to products regulated by federal law.
EXISTING LAW :
1)Requires all mattresses and mattress sets manufactured for
sale in this state to be fire retardant.
2)Defines "fire retardant," as a product that meets the
standards for resistance to open-flame test adopted by the
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United States Consumer Product Safety Commission (CSPC) and
set forth in federal regulations.
3)Authorizes the BHFTI to adopt regulations it deems necessary
to implement these fire retardant standards.
4)Requires all other bedding products that BHFTI determines
contribute to mattress bedding fires to comply with
regulations adopted by the BHFTI specifying that those
products be resistant to open-flame ignition.
5)Requires all seating furniture sold or offered for sale by an
importer, manufacturer, or wholesaler for use in this state,
and reupholstered furniture to which filling materials are
added, to be fire retardant and labeled as such. Exempts
physical fitness and exercise equipment from this requirement.
6)Prohibits a person from manufacturing, processing, or
distributing in commerce a product containing more than
0.1% pentaBDE (penta brominated diphenyl ether) or
octaBDE (octa brominated diphenyl ether), both of which
are flame retardant chemicals.
7)Authorizes, under the Federal Hazardous Substances Act
(FHSA), the CPSC to regulate hazards to children.
8)Authorizes, under the Flammable Fabrics Act, the CPSC to
regulate fire risks associated with interior furnishings.
FISCAL EFFECT : Unknown.
COMMENTS :
Purpose : According to the author, "The California home
furnishing flammability requirement known as Technical Bulletin
117 (TB 117) has led to the annual use of millions of pounds of
fire retardant chemicals in California since the early 1980's.
Halogenated fire retardants-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 attention deficit disorder and hyperactivity, and a host of
other health disorders. These toxic chemicals migrate from
products in the home into household dust, humans, pets, and the
environment. A typical household can contain up to several
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pounds of these chemicals, and their extensive use to meet TB
117 has led to contamination of the global environment?
"Today, virtually every Californian tested has been found to
have fire retardants chemicals stored in their bodies, with
babies and young children showing the highest "body burdens".
Elevated levels have also been found throughout the food chain,
especially in, dairy products, meat, poultry, and fish. Most
alarming of all, tests have found that halogenated fire
retardants are present in the polyurethane foam in baby products
including portable cribs, bassinets, car seats, strollers,
playpens, swings, nursing pillows, high chairs and toddler
chairs. These juvenile products are treated with these toxins
in order to meet the standards required under TB 117, despite no
credible scientific documentation showing that they represent a
fire risk? It's time for that to change. California needs to
permit manufacturers to remove these toxins from products that
infants and young children come into repeated and intimate
contact with on a daily basis."
California's flammability standards: In California, mattresses,
mattress sets, bedding products and upholstered furniture
manufactured or sold in the state is required to meet
flammability standards specified in Technical Bulletin No. 117
(TB 117), promulgated by BHFTI. According to the Office of
Environmental Health Hazard Assessments (OEHHA), TB 117, which
requires that foam in a product withstand ignition if exposed to
an open flame for 12 seconds, has resulted in the extensive use
of additive chemical flame retardants in furniture sold in
California for over 25 years. To avoid the expense of creating
a separate product line for California and to voluntarily comply
with the most stringent flammability requirements in the U.S.,
many large manufacturers and distributors of furniture or
furniture components add flame retardant chemicals to their
products sold in other states as well.
Common flame retardant chemicals and their potential health
effects : According to OEHHA, TB 117 has resulted in the
extensive use of brominated and chlorinated organic chemical
compounds (BFRs and CFRs). Many brominated and chlorinated
compounds have been shown to persist in the environment and have
been associated with adverse health effects including cancer,
reproductive and developmental toxicity, neurological
dysfunction and endocrine disruption.
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Prior to 2006, polybrominated diphenyl ethers (PBDEs) were the
primary additive flame retardants in furniture foam. PBDEs are
a type of BFRs which migrate from furniture into indoor and
outdoor environments. Some of the highest PBDE concentrations
in the world have been found in California homes and within the
bodies of California residents. PBDEs are closely related in
structure and behavior of polychlorinated biphenyls (PCBs).
PCBs are known to have neurotoxic and carcinogenic effects and
were banned by Congress in 1976.
In 2003, the California Legislature was sufficiently concerned
about the hazards posed by two types of PBDEs (pentaBDEs and
octaBDEs), that it passed, and Governor enacted, a ban on these
chemicals (AB 302, Chan, Chapter 205, Statutes of 2003). Such
similarity of the chemicals' molecular structures raises concern
about potential biological hazards of all of these types of
flame retardant chemicals.
BHFT's expansion of flame retardancy regulations: BHFTI is
considering extending flammability requirements to include
filled bed clothing, such as pillows, mattress pads and
comforters, in a new guideline, Technical Bulletin 604 or TB
604. The Chair of this Committee, along with the author and
other Chairs of Senate and Assembly Committees, sent a letter on
April 8, 2009 to the Governor requesting that 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 requests included ensuring that
development and promulgation of TB 604 does not add even more
toxic flame retardant chemicals or materials to California
households and ensuring that fire safety requirements, current
and future, are in keeping with the goals of the California
Green Chemistry Initiative. The authors of the letter have not
received a response from the Administration.
New approach - not a ban bill: Prior legislation has attempted
to prohibit the manufacture, use and sale of specified flame
retardant chemicals that are linked to negative public health
impacts. The author has this year taken a new approach to
limiting children's exposure to potentially harmful flame
retardants. Rather than propose a chemical ban, he instead
proposes exempting certain children's products, unless they pose
a fire hazard, from state flammability standards. This approach
does not explicitly restrict or prohibit the use of any flame
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retardant chemicals in juvenile products, but it does eliminate
manufacturers' need to use them. It also eliminates the concern
that manufacturers, if prohibited from using a certain chemical
but still required to adhere to flammability standards, might
substitute a regrettable alternative for the banned chemical.
Trading a reduction of fire risk for a reduction in chemical
toxicity risks ? The use of flame retardant chemicals in
juvenile furniture does not appear to actually increase public
safety. In a response to the author's request for information
on fire risks associated with children's furnishings and other
juvenile products containing polyurethane foam, in October 2008
the CPSC responded, "The CPSC can regulate specific products if
it determines that the products pose an unreasonable risk of
death or injury under foreseeable conditions of use. To date,
the CPSC has not made such a determination with respect to the
risk of fire of most of the juvenile products [in the bill]? A
review of the available consumer product-related fire injury
data from the Commission's National Electronic Injury
Surveillance System (NEISS) for 2000 - 2008 does not identify
any incidents in which a stroller, infant carrier, bassinet or
nursing pillow first ignited."
Additionally, according to a 2006 study by the National Fire
Protection Association, the rate of reduction of fire deaths in
California over the last 20 years, during which halogenated fire
retardants were used heavily in furniture, is statistically
similar to other states that did not have furniture flammability
standards.
According to the author's office, in recent years, the CPSC has
been developing a national furniture flammability standard. In
2008, the CPSC proposed a draft flammability standard that will
not lead to the de-facto use of fire retardant chemicals. CPSC
Commissioner Thomas Moore concluded "No one wants to trade fire
risks for chemical toxicity risks."
Arguments in support: According to the Juvenile Products
Manufacturers Association, "The Federal Hazardous Substances Act
already restricts exposure... Most furniture is already subject
to exclusion of up to inch of filling or backing under
existing California law. Unfortunately, this exclusion was not
applied to juvenile furniture. Given the overly broad
definition of upholstered furniture in this state, this has
resulted in needless cost to consumers and restricted choices of
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materials available to California parents and caregivers." The
Consumer Federation of America writes, "SB 772 strikes the
proper balance between protecting infants and children from
harmful toxic exposures and any legitimate but limited use of
fire retardants." Environmental Working Group notes, "Some of
the [flame retardant] chemicals being used today in juvenile
products 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."
Arguments in opposition: According to the California Chamber of
Commerce, the California Manufacturers Technology Association,
and other organizations, "This proposal is based on fears about
the potential human health effects of exposure to fire
retardants, even though there is no peer-reviewed empirical data
supporting these fears. In effect, this bill prioritizes such
theoretical health risks above the very real risks of injury and
death that flame retarded products seek to prevent? The Green
Chemistry legislation enacted last year will ensure that any
health risks posed by fire retardant chemicals are clearly
identified and appropriately regulated." The California Black
Chamber of Commerce Foundation writes, "California's fire safety
standards have caused fire-related injuries and deaths to
decline by more than 64 percent in recent years. We cannot
abdicate these standards and leave the most vulnerable at the
most risk."
Similar recent legislation:
AB 302 (Chan, Chapter 205, Statutes of 2003), banned the use of
penta- and octa- brominated diphenyl ethers (pentaBDE or
octaBDE) after January 1, 2008.
AB 513 (Leiber, 2007), would have extended the prohibition on
pentaBDE or octaBDE to include decaBDE, but only with regard to
electronic products. This measure failed passage on the
Assembly floor.
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), requires DTSC to
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develop, in regulation, processes by which chemicals of concern
and their alternatives are identified and assessed, and methods
of reducing exposure are established.
AB 706 (Leno, 2008), would have required bedding products to
comply with certain requirements, including not containing a
chemical that doesn't comply with alternatives assessment
requirements, as specified. Required DTSC to develop and adopt
methodology an alternative assessment to review the classes of
chemicals used to meet the fire retardancy standards set by the
BHFTI. This measure failed passage on the Senate floor.
Double referral : This bill was double-referred by the Assembly
Rules Committee to the Assembly Business and Professions
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Friends of the Earth (sponsor)
As You Sow Foundation
The Baum Foundation
Breast Cancer Fund
California Professional Firefighters
Center for Biological Diversity
Center for Environmental Health
Commonweal
Consumer Federation of California
Contra Costa Health Services
Diversified Health Services
Environment California
Environmental Working Group
Friends of Earth
Green California (alert)
Healthy African American Families II
Healthy Child Health World
Humane Society of the United States
Juvenile Products Manufacturers Association
Ocean Conservancy
Making Our Milk Safe
MomsRising.org
National Association for the Advancement of Colored People
(NAACP) (alert)
Natural Resources Defense Counsel
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Planning and Conservation League
San Francisco Firefighters Cancer Prevention Foundation
Santa Barbara Channelkeeper
Sierra Club California
Stentorians of Los Angeles County
The Trauma Foundation
Opposition
American Chemistry Council
California Building Industry Association
California Chamber of Commerce
California Black Chamber of Commerce Foundation
California Business Properties Association
California Manufacturers Technology Association
California Retailers Association
Chemical Industry Council of California
Citizens for Fire Safety
Green Chemistry Alliance (alert)
Kern County Taxpayers Association
National Tax Limitation Committee
Orange County Professional Firefighters Association
San Joaquin County Hispanic Chamber of Commerce
The Thursday Group (alert)
Several individuals
Analysis Prepared by : Shannon McKinney / E.S. & T.M. / (916)
319-3965