Amended in Assembly August 22, 2014

Amended in Assembly August 18, 2014

Amended in Assembly June 30, 2014

Amended in Assembly June 18, 2014

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

begin insert

(Coauthors: Assembly Members Ammiano, Skinner, and Wieckowski)

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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 certain upholstered furniture to contain a specified label that is permanently attached 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 statement 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 requirement or for failure to provide, upon request, the required documentation to the bureau, 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) 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, 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.

(i) The Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation concluded that “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.” 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.

(j) 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.

(k) 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.

(l) 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) “Flame retardant chemical” means any chemical or chemical
compound for which a begin delete purported end delete functional use is to resist or
inhibit the spread of fire. Flame retardant chemicals include, but
are not limited to, halogenated, phosphorous-based, nitrogen-based,
and nanoscale flame retardants, begin delete and end delete flame retardant chemicals
listed as “designated chemicals” pursuant to Section 105440 of
the Health and Safety begin delete Code end delete begin insert Code, and any chemical or chemical
compound for which “flame retardant” appears on the substance
Safety Data Sheet (SDS) pursuant to Section 1910.1200(g) of Title
29 of the Code of Federal Regulations end insert .

(4) “Chemical” means either of the following:

(A) An organic or inorganic substance of a particular molecular
identity, including any combination of those substances occurring,
in whole or in part, as a result of a chemical reaction or occurring
in nature, and any element, ion, or uncombined radical, and any
begin delete degrade end delete begin insert degradate end insert , metabolite, or reaction product of a substance
with a particular molecular identity.

(B) A chemical ingredient, which means a substance comprising
one or more substances described in subparagraph (A).

(5) “Molecular identity” means the substance’s properties listed
below:

(A) Agglomeration state.

(B) Bulk density.

(C) Chemical composition, including surface coating.

(D) Crystal structure.

(E) Dispersability.

(F) Molecular structure.

(G) Particle density.

(H) Particle size, size distribution, and surface area.

(I) Physical form and shape, at room temperature and pressure.

(J) Physicochemical properties.

(K) Porosity.

(L) Solubility in water and biologically relevant fluids.

(M) Surface charge.

(N) Surface reactivity.

(6) “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.

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

(8) “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 1374.3 of Title 4 of
the California Code of Regulations for covered products:

“The upholstery materials in this product:

_____contain added flame retardant chemicals

_____contain NO added flame retardant chemicals

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

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 1374.3 of Title 4 of the California Code of Regulations in
accordance with the bureau’s regulations for that label. 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.

(c) (1) The manufacturer of the covered product sold in
California shall retain documentation to show whether flame
retardant chemicals were added. A written statement 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 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. 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)  begin insert (i) end insert begin insert   end insert 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. begin insert The bureau shall reimburse the
department for the cost of testing for the presence of added flame
retardant chemicals in covered products marked “contain NO
added flame retardant chemicals”. end insert

begin insert

(ii) No later than August 1 of each fiscal year, the bureau shall
assess available resources and determine the number of tests to
be conducted in the corresponding fiscal year, pursuant to this
subparagraph.

end insert

(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 the 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.