Amended in Assembly June 10, 2014

Amended in Senate May 27, 2014

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 Section 19094 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 and each offense is punishable by a fine, as specified.

Existing state law requires begin insert certain end insert upholstered furniture begin delete and bedding end delete to contain a specified label that is begin delete securely fastened in a manner approved by the bureau end delete begin insert permanently attached end insert 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 a 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.

The bill would require the manufacturer of the covered product to retain sufficient documentation to show whether flame retardant chemicals were added to a covered product or component. The bill would provide that a written begin delete affidavit end delete begin insert statement end insert by the supplier of each component attesting that flame retardant chemicals were added or not added is sufficient to make this showing. The bill would require the bureau to assess a fine for a violation of the documentation begin delete requirement, end delete begin insert requirement or for failure to provide, upon request, the required documentation to the bureau, end insert as specified.

The bill would require a manufacturer of a covered product sold in California, upon request, to provide to the bureau, within 30 days of the request, documentation establishing the accuracy of the flame retardant chemical statement on the label. The bill would require the bureau to provide the Department of Toxic Substances Control with samples of the covered product or components thereof sold in California from products marked “contain NO added flame retardant chemicals” for testing for the presence of added flame retardant chemicals, as specified. If the department’s testing shows that a covered product labeled as “contain NO added flame retardant chemicals” is mislabeled because it contains added flame retardant chemicals, the bill would require the bureau to assess fines for violations against manufacturers of the covered product and component manufacturers, as specified.

The bill would require the bureau to make information about any citation issued pursuant to its provisions available to the public on its Internet Web site. The bill would also make it the duty of the bureau to receive consumer complaints.

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

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:

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 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 begin delete the presence
of flame retardant chemicals in furniture does not provide a
meaningful fire safety benefit. end delete begin insert “studies show that fire retardant
(FR) tested foam does not provide a meaningful difference in egress
time from non-FR foam and increases smoldering propensity. end insert begin insert ” end insert 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.

SEC. 2.  

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

19094.  

(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, as identified in Technical
Bulletin 117-2013, specifically 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 1,000 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) A manufacturer of covered products shall indicate
whether or not the product contains added flame retardant
chemicals by including the following “flame retardant chemical
statement” on the label described in Section begin delete 1126 end delete begin insert 1374.3 end insert of Title
4 of the California Code of Regulations for covered products:

begin delete

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

_____contain added flame retardant chemicals

_____contain 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 dust where people can be exposed to them.”

end delete begin insert

“The upholstery materials in this product:

end insert begin insert

_____contain added flame retardant chemicals

end insert begin insert

_____contain NO added flame retardant chemicals

end insert begin insert

The State of California determined that the fire safety
requirements for this product can be met without adding flame
retardant chemicals. The state has identified many flame retardants
as being known to, or strongly suspected of, adversely impacting
human health or development.”

end insert

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

(2) This statement shall be included in the label described in
Section begin delete 1126 end delete begin insert 1374.3 end insert of Title 4 of the California Code of
Regulations in accordance with the bureau’s regulations for that
label. begin insert The statement need not be in all capital letters, and shall
follow the statement required by Section 1374.3 of Title 4 of the
California Code of Regulations. end insert

(c) (1) The manufacturer of the covered product sold in
California shall retain documentation to show whether flame
retardant chemicals were added. A written begin delete affidavit end delete begin insert statement end insert by
the supplier of each component covered by Technical Bulletin
117-2013 attesting either that flame retardant chemicals were added
or not added shall be sufficient documentation.

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

(3) (A) Upon request, a manufacturer of a 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 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 (d) for the failure of the manufacturer of the covered
product to maintain the documentation required by this begin delete section end delete
begin insert section, or for the failure of the manufacturer of the covered
product to provide, upon request, the documentation required by
this section to the bureau end insert . These fines shall replace any other fines
in this article for a violation of the documentation requirements
of this section. This subparagraph does not alter or amend any
other penalty otherwise imposed by this article.

(C) A manufacturer of covered products and component
suppliers shall be jointly and severally liable for violations of the
documentation required in this section.

(D) The bureau shall provide the Department of Toxic
Substances Control with a selection of samples from covered
products marked “contain NO added flame retardant chemicals”
for testing for the presence of added flame retardant chemicals.
The samples shall be from the components identified in paragraph
(1) of subdivision (a). The bureau shall select samples based on
consultation with the department, taking into account a range of
manufacturers and types of covered products. The bureau and the
department shall consult on the tests to be conducted by the
department. The department shall provide the results of any
completed test to the bureau.

(E) (i) If the department’s testing shows that a covered product
labeled as “contain NO added flame retardant chemicals” is
mislabeled because it contains added flame retardant chemicals,
the bureau may assess fines for violations against 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 (d) and the following schedule:

(I) The fine for the first violation shall be not less than one
thousand dollars ($1,000) but not more than two thousand five
hundred dollars ($2,500).

(II) The fine for the second violation shall be not less than two
thousand five hundred dollars ($2,500) but not more than five
thousand dollars ($5,000).

(III) The fine for the third violation shall be not less than five
thousand dollars ($5,000) but not more than seven thousand five
hundred dollars ($7,500).

(IV) The fine for any subsequent violation shall be not less than
seven thousand five hundred dollars ($7,500) but not more than
ten thousand dollars ($10,000).

(iii) The fines in clause (ii) shall replace any other fines in this
article for a violation of the testing requirements of this section.
This clause does not alter or amend any other penalty otherwise
imposed by this article.

(iv) If the department’s testing shows that a covered product
labeled as “contain 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 label 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.

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

(d) (1) The bureau shall make information about any citation
issued pursuant to this section available to the public on its Internet
Web site.

(2) In determining the amount of the fine for violations of this
section, the bureau shall consider the following factors:

(A) The nature and severity of the violation.

(B) The good or bad faith of the cited person.

(C) The history of previous violations.

(D) Evidence that the violation was willful.

(E) The extent to which the cited person or entity has cooperated
with the bureau.

(3) (A) The bureau shall adjust all minimum and maximum
fines imposed by this section for inflation every five years.

(B) The adjustment shall be equivalent to the percentage, if any,
that the Consumer Price Index at the time of adjustment exceeds
the Consumer Price Index at the time this section goes into effect.
Any increase determined under this paragraph shall be rounded as
follows:

(i) In multiples of ten dollars ($10) in the case of penalties less
than or equal to one hundred dollars ($100).

(ii) In multiples of one hundred dollars ($100) in the case of
penalties greater than one hundred dollars ($100) but less than or
equal to one thousand dollars ($1,000).

(iii) In multiples of one thousand dollars ($1,000) in the case
of penalties greater than one thousand dollars ($1,000).

(4) It shall be the duty of the bureau to receive complaints from
consumers concerning covered products sold in California.

(e) The bureau may adopt regulations pursuant to the
Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code) to carry out this section.

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.