Amended in Senate April 21, 2014

Amended in Senate March 24, 2014

Senate Bill No. 1019

Introduced by Senator Leno

February 14, 2014

An act to add begin delete Section 19094 end delete begin insert Sections 19094 and 19095 end insert to the Business and Professions Code, relating to business.

LEGISLATIVE COUNSEL’S DIGEST

SB 1019, as amended, Leno. Upholstered furniture: 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 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. This 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 begin delete an upholstered-furniture end delete begin insert a end insert manufacturer of covered products, as defined, to indicate whether or not the product contains added flame retardant chemicals, as defined, by including a specified statement on that label. begin delete The bill would also require the upholstered-furniture manufacturer of any covered product sold in California to provide point-of-sale signs containing the aforementioned statement to the upholstered-furniture retailer for each product shipped to California. For in-store sales in California and for Internet and paper catalog sales to California, the bill would require the upholstered-furniture retailer in California to display the point-of-sale sign in a specified manner. end delete

begin delete

If flame retardant chemicals are added to covered products sold in California, the bill would require the upholstered-furniture manufacturer to make good faith efforts to determine the various flame retardant chemicals used in its products and report this information to the bureau. The bill would require the bureau to make this information publicly available on its Internet Web site.

end delete

The bill would require the begin delete upholstered-furniture end delete manufacturer of the covered product to retain sufficient documentation to show begin delete the chemicals end delete begin insert whether flame retardant chemicals were end insert added to a covered product or component. begin delete If no flame retardant chemicals were added to the covered product sold in California, the bill would require the upholstered-furniture manufacturer of the covered product sold in California to retain documentation that no flame retardant chemicals were added. end delete The bill would provide that a written begin delete statement end delete begin insert affidavit end insert by the supplier of each component begin delete of the furniture, attesting under penalty of perjury that no flame retardant chemicals were added, end delete begin insert attesting that flame retardant chemicals were added or not added end insert is sufficient to make this showing. begin delete By expanding the crime of perjury, the bill would impose a state-mandated local program. end delete

Upon request, the bill would require begin delete an upholstered-furniture end delete begin insert a end insert manufacturer of a covered product sold in California to provide to the bureau, within 30 days of the request, documentation establishing the accuracy of the flame retardant chemical statement on the begin delete label and sign end delete begin insert label end insert . The bill would require the bureau to provide the Department of Toxic Substances Control with samples of the covered product or components thereof sold in California from products marked “contains NO added flame retardant chemicals” for testing for the presence of added flame retardant chemicals. If the department’s testing shows that a covered product labeled as “contains NO 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 begin delete upholstered-furniture end delete manufacturers of the covered product and component manufacturers. The bill would also authorize the bureau to assess fines for failure to maintain the required chain of custody documentation.

The bill would require the bureau to assess fines for certain violations and would additionally authorize the bureau to issue a citation including a citation with a fine for certain violations, as specified. The bill would authorize the bureau to make this citation information available to the public. The bill would also make it the duty of the bureau to receive consumer complaints.

The bill would authorize the bureau to adopt regulations in order to carry out these provisions.

Because a violation of the bill’s requirements would be a crime, the bill would impose a state-mandated local program.

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:

begin delete

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) In 1975, California implemented Technical Bulletin 117,
which requires that materials, such as polyurethane foam, used to
fill furniture be able to withstand a small open flame for at least
12 seconds.

(b) Flame retardant chemicals are used widely in upholstered
furniture to meet the flame retardant standards of California Bureau
of Electronic and Appliance Repair, Home Furnishings, and
Thermal Insulation Technical Bulletin 117.

(c) People are exposed to flame retardant chemicals in multiple
ways, including when the chemicals migrate from furniture and
other consumer products into air and dust in the home or
workplace.

(d) Some of these chemicals can persist in the environment,
bioaccumulate in people and animals, and have been shown to
cause adverse developmental effects in animals and humans.

(e) A study by the California Environmental Protection Agency
found that women in California have much higher levels of toxic
flame retardants in their breast tissue than women in other states
and countries. Studies published in the journal of Environmental
Research show that children in California have much higher levels
of flame retardant chemicals than children elsewhere in the country.

(f) A study published in the Journal of Occupational and
Environmental Medicine concluded that firefighters have a
significantly elevated risk of cancer that may be attributed to toxic
chemicals they inhale, including flame retardants.

(g) California consumers have become increasingly concerned
about the potential adverse human health impacts due to exposure
to certain chemical flame retardants. Various studies have linked
exposure to flame retardants to cancer, lower IQs and attention
problems, male infertility, male birth defects, and early puberty in
girls.

(h) In 2012, the Chair of the Federal Consumer Product Safety
Commission, testified to Congress that “the fire-retardant foams
did not offer a practically significant greater level of open flame
safety than the untreated foams.”

(i) In 2012, the Chicago Tribune published a series of
investigative reports that showed that the claims of the efficacy of
flame retardants in furniture misrepresent the science.

(j) In 2012, Governor Brown asked of the Bureau of Electronic
and Appliance Repair, Home Furnishings, and Thermal Insulation
to review the state’s four-decade-old flammability standards and
recommend changes to reduce toxic flame retardants while
continuing to ensure fire safety.

(k) The Bureau concluded that the presence of flame retardant
chemicals in furniture does not provide a meaningful fire safety
benefit. In 2013, the Bureau of Electronic and Appliance Repair,
Home Furnishings, and Thermal Insulation promulgated
regulations, revising Technical Bulletin 117 to allow furniture
manufacturers to meet a smoldering standard. The revised
Technical Bulletin 117-2013 provides improved fire safety
standards without the use of flame retardant chemicals.

(l) California consumers have voiced a desire to purchase
furniture that complies with Technical Bulletin 117-2013 but does
not contain flame retardant chemicals.

(m) Technical Bulletin 117-2013 can be met with or without
the use of flame retardant chemicals, but consumers currently have
no way to know whether flame retardant chemicals have been
added to the product.

(n) It is, therefore, the intent of the Legislature in enacting this
measure to provide California consumers clear information about
the furniture products they are purchasing, specifically concerning
compliance with fire safety standards and the absence or presence
of added flame retardant chemicals.

end delete

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 19094 is added to the end insert begin insert Business and
Professions Code end insert begin insert , to read: end insert

begin insert

begin insert 19094. end insert   

The Legislature finds and declares all of the following:

(a) In 1975, California implemented Technical Bulletin 117,
which requires that materials, such as polyurethane foam, used
to fill furniture be able to withstand a small open flame for at least
12 seconds.

(b) Flame retardant chemicals are used widely in upholstered
furniture to meet the flame retardant standards of the Bureau of
Electronic and Appliance Repair, Home Furnishings, and Thermal
Insulation’s Technical Bulletin 117.

(c) People are exposed to flame retardant chemicals in multiple
ways, including when the chemicals migrate from furniture and
other consumer products into air and dust in the home or
workplace.

(d) Some of these chemicals can persist in the environment,
bioaccumulate in people and animals, and have been shown to
cause adverse developmental effects in animals and humans.

(e) A study by the California Environmental Protection Agency
found that women in California have much higher levels of toxic
flame retardants in their breast tissue than women in other states
and countries. Studies published in the journal of Environmental
Research show that children in California have much higher levels
of flame retardant chemicals than children elsewhere in the
country.

(f) A study published in the Journal of Occupational and
Environmental Medicine concluded that firefighters have a
significantly elevated risk of cancer that may be attributed to toxic
chemicals they inhale, including flame retardants.

(g) California consumers have become increasingly concerned
about the potential adverse human health impacts due to exposure
to certain chemical flame retardants. Various studies have linked
exposure to flame retardants to cancer, lower IQs and attention
problems, male infertility, male birth defects, and early puberty
in girls.

(h) In 2012, the Chairman of the federal Consumer Product
Safety Commission testified to Congress that “the fire-retardant
foams did not offer a practically significant greater level of open
flame safety than the untreated foams.”

(i) In 2012, the Chicago Tribune newspaper published a series
of investigative reports that showed that the claims of the efficacy
of flame retardants in furniture misrepresent the science.

(j) In 2012, Governor Brown asked the Bureau of Electronic
and Appliance Repair, Home Furnishings, and Thermal Insulation
to review the state’s four-decade-old flammability standards and
recommend changes to reduce toxic flame retardants while
continuing to ensure fire safety.

(k) The Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation concluded that the presence
of flame retardant chemicals in furniture does not provide a
meaningful fire safety benefit. In 2013, the Bureau of Electronic
and Appliance Repair, Home Furnishings, and Thermal Insulation
promulgated regulations, revising Technical Bulletin 117 to allow
furniture manufacturers to meet a smoldering standard. The revised
Technical Bulletin 117-2013 provides improved fire safety
standards without the use of flame retardant chemicals.

(l) California consumers have voiced a desire to purchase
furniture that complies with Technical Bulletin 117-2013 but does
not contain flame retardant chemicals.

(m) Technical Bulletin 117-2013 can be met with or without the
use of flame retardant chemicals, but consumers currently have
no way to know whether flame retardant chemicals have been
added to the product.

(n) Upholstered furniture manufacturers and California’s retail
industry recognize the intrinsic value of helping consumers make
knowledgeable buying decisions and are uniquely positioned to
take the lead in building trust in the marketplace. Providing
information on the use of chemical flame-retardants in upholstered
furniture gives retailers a unique opportunity to respond to the
needs of their customers. Consumers want to be able to exercise
an informed choice and buy products that are not only safer for
themselves and their families, but are products that will also keep
our firefighters safer.

(o) It is, therefore, the intent of the Legislature in enacting this
measure to provide California consumers clear information about
the furniture products they are purchasing, specifically concerning
compliance with fire safety standards and the absence or presence
of added flame retardant chemicals.

end insert

SEC. 2.  

Section begin delete 19094 end delete begin insert 19095 end insert is added to the Business and
Professions Code, to read:

begin delete 19094. end delete
begin insert 19095. end insert   

(a) For the purposes of this section, the following
definitions shall apply:

(1) “Component” means the separate constituent parts of
upholstered furniture sold in California, begin delete including, but not limited
to, end delete begin insert as identified in Technical Bulletin 117-2013, specifically end insert cover
fabrics, barrier materials, resilient filling materials, and decking
materials.

(2) “Covered products” means any flexible polyurethane foam
or upholstered or reupholstered furniture sold in California that is
required to meet the test requirements set forth in Technical
Bulletin 117-2013, entitled “Requirements, Test Procedure and
Apparatus for Testing the Smolder Resistance of Materials Used
in Upholstered Furniture.”

(3) “Added flame retardant chemicals” means flame retardant
chemicals that are present in any covered product or component
thereof at levels above begin delete 500 end delete begin insert 1000 end insert parts per million.

(4) “Department” means the Department of Toxic Substances
Control.

(5) “Consumer Price Index” means the Consumer Price Index
for All Urban Consumers published by the Bureau of Labor
Statistics.

(b) (1)  begin delete (A) An upholstered-furniture end delete begin insert A end insert manufacturer of covered
products shall indicate whether or not the product contains added
flame retardant chemicals by including the following begin delete statement end delete
begin insert “flame retardant chemical statement” end insert on the label described in
Section 1126 of Title 4 of the California Code of Regulations for
covered products:

“This product meets California’s furniture fire safety standard
and begin insert the upholstery materials end insert :

_____contains added flame retardant chemicals

_____contains NO added flame retardant chemicals

The Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation found that flame retardant
chemicals in furniture do not provide a meaningful fire safety
benefit. According to the Centers for Disease Control and
Prevention (CDC), such flame retardant chemicals can migrate
into air and begin delete house end delete dust where people can be exposed to them.”

begin delete

An upholstered-furniture manufacturer

end delete

begin insert A manufacturer of covered products end insert shall indicate the absence
or presence of added flame retardant chemicals by placing an “X”
in one of the appropriate blanks.

begin delete

(B)

end delete

begin insert (2) end insert  This statement shall be begin delete in end delete included in the label described in
Section 1126 of Title 4 of the California Code of Regulations in
accordance with the bureau’s regulations for that label.

begin delete

(C)

end delete

begin insert (3) end insert  Notwithstanding any other law, the bureau shall assess fines
for violations of this begin delete paragraph end delete begin insert subdivision end insert pursuant to Section
1383.2 of Title 4 of the California Code of Regulations.

begin delete

(2) (A) The upholstered-furniture manufacturer of any covered
product sold in California shall provide point-of-sale signs
containing the flame retardant chemical statement to the
upholstered-furniture retailer for each product shipped to
California. For in-store sales in California, the upholstered-furniture
retailer in California shall display the point-of-sale sign next to
the price or description of the covered product. The point-of-sale
sign shall be sized and placed so as to remain clear and conspicuous
to consumers, and the minimum size of type shall be at least 0.2
inches in height.

(i) For sales of covered products sold in California via an
Internet Web site, the upholstered-furniture retailer in California
shall place the point-of-sale sign containing the flame retardant
chemical statement clearly and conspicuously, and in close
proximity to the covered product’s price, on each Internet Web
site page that contains a detailed description of the covered product
and its price. The point-of-sale sign shall be sized and placed so
as to remain clear and conspicuous to a consumer viewing the
page.

(ii) For sales of covered products sold in California through
paper catalogs, the upholstered-furniture retailer in California shall
place the point-of-sale sign containing the flame retardant chemical
statement clearly and conspicuously, and in close proximity to the
covered product’s price, on each page that contains a detailed
description of the covered product and its price. The point-of-sale
sign shall be sized and placed so as to remain clear and conspicuous
to consumers.

(B) The bureau shall assess fines for violations of this paragraph
in accordance with the factors described in subdivision (e) 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).

(c) If flame retardant chemicals are added to a covered product
sold in California, the upholstered-furniture manufacturer shall
make good faith efforts to determine the various flame retardant
chemicals used in its products and report this information
semi-annually to the bureau. The bureau shall make this
information publicly available on its Internet Web site. If
information on the specific flame retardant chemicals used in the
covered product is not known to the upholstered-furniture
manufacturer, the upholstered-furniture manufacturer may report
the trade name of the chemical mixture used.

(d) (1) (A) If any flame retardant chemical was added to the
covered product or any component thereof sold in California, the
upholstered-furniture manufacturer of the covered product shall
retain sufficient documentation to show the chemicals and the
amounts of the chemicals that were added.

(B) If no flame retardant chemicals were added to the covered
product sold in California, the upholstered-furniture

end delete

begin insert (c) end insert begin insert   end insert begin insert (1) end insert begin insert   end insert begin insert The end insert manufacturer of the covered product sold in
California shall retain documentation begin delete that no end delete begin insert to show whether end insert
flame retardant chemicals were added. A written begin delete statement end delete begin insert affidavit end insert
by the supplier of each component begin delete of the furniture end delete begin insert covered by
Technical Bulletin 117-2013 end insert attesting begin delete under penalty of perjury end delete
that begin delete no end delete flame retardant chemicals were added begin insert or not added end insert shall
be sufficient documentation.

(2) The bureau shall ensure compliance with labeling and
documentation of chain of custody requirements in this section.

(3) (A) Upon request, begin delete an upholstered-furniture end delete begin insert a end insert manufacturer
of a covered 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
begin delete and sign end delete required by subdivision (b).

(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 (e) for the failure of the begin delete upholstered-furniture end delete
manufacturer begin insert of the covered product end insert to maintain the required chain
of custody documentation.

(C) The bureau shall provide the Department of Toxic
Substances Control with samples of the covered product or
components thereof sold in California from products marked
“contains NO added flame retardant chemicals” for testing for the
presence of added flame retardant chemicals. The department shall
provide the results of all testing to the bureau.

(D) (i) If the department’s testing shows that a covered product
labeled as “contains NO added flame retardant chemicals” is
mislabeled because it contains added flame retardant chemicals,
the bureau may assess fines for violations against
begin delete upholstered-furniture end delete manufacturers of the covered 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 factors described
in subdivision (e) 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) If the department’s testing shows that a covered product
labeled as “contains NO 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 begin delete labels and signs end delete begin insert label end insert required by subdivision (b) for
covered products that belong to the same stock keeping unit (SKU)
currently produced by the manufacturer be corrected to reflect that
flame retardant chemicals are added to the covered product.

(iv) If the department’s testing shows that a covered product
labeled as “contains NO 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 begin delete or sign end delete required by subdivision (b) for covered
products if the manufacturer wishes to retain the “contains NO
added flame retardant chemicals” designation on the label begin delete or sign end delete
required by subdivision (b).

(E)  begin delete An upholstered-furniture end delete begin insert A end insert manufacturer of covered products
and component suppliers shall be jointly and severally liable for
violations of chain of custody requirements in this subdivision.

begin delete

(e)

end delete

begin insert (d) end insert  (1) Notwithstanding any other law, the bureau may issue a
citation, including a citation with a fine, for a violation of this
section, and shall make citation information available to the public.

(2) In determining the amount of the fine associated with a
citation, 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 covered products sold in California.

begin delete

(f) The bureau shall establish requirements for providing
translations of the flame retardant chemical statement in other
languages on the sign required by subdivision (b) as may be
needed.

end delete begin delete

(g)

end delete

begin insert (e) end insert  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) in order to carry out begin delete the provisions of end delete this section.

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.