BILL ANALYSIS �
SB 1019
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 1019
AUTHOR: Leno
AMENDED: March 24, 2014
FISCAL: Yes HEARING DATE: April 2, 2014
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : UPHOLSTERED FURNITURE: FLAME RETARDANT CHEMICALS
SUMMARY :
Existing law :
1) Establishes the Bureau of Electronic and Appliance Repair,
Home Furnishings and Thermal Insulation (bureau) within the
Department of Consumer Affairs.
a) Authorizes the bureau to administer and enforce 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.
b) 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.
c) Defines a "fire retardant" product as a product that
meets the regulations adopted by the bureau.
2) Prohibits the manufacturing, processing, or distributing in
commerce a product, or a flame-retarded part of a product,
containing more than 1/10 of 1% pentaBDE or octaBDE (AB 302
(Chan) Chapter 205, Statutes of 2003).
3) Requires the Office of Environmental Health Hazard Assessment
(OEHHA) to publish a list of chemicals known to cause cancer
or birth defects or other reproductive damage, pursuant to
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the Safe Drinking Water and Toxic Enforcement Act of 1986
(Proposition 65).
4) Authorizes the Department of Toxic Substances Control (DTSC)
to identify chemicals of concern and evaluate, assess
alternatives to, and regulate consumer products that contain
chemicals of concern.
This bill :
1) Requires upholstered-furniture manufacturers to indicate
whether or not a product contains added flame retardant
chemicals, by including a specified statement on that label.
2) Requires the upholstered-furniture manufacturer of a 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.
3) Requires, for in-store sales in California and for Internet
and paper catalog sales to California, the
upholstered-furniture retailer in California to display the
point-of-sale sign in a specified manner.
4) Requires, if flame retardant chemicals are added to products
sold in California, 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.
5) Requires the bureau to make this information publicly
available on its Internet Web site.
6) Requires the upholstered-furniture manufacturer to retain
sufficient documentation to show the chemicals added to a
product or component.
7) Requires, if no flame retardant chemicals were added to the
product sold in California, the upholstered-furniture
manufacturer of the product sold in California to retain
documentation that no flame retardant chemicals were added.
8) Provides that a written statement by the supplier of each
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component of the furniture, attesting under penalty of
perjury that no flame retardant chemicals were added, is
sufficient to make this showing.
9) Requires, upon request, an upholstered-furniture manufacturer
of a 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
label and sign.
10)Requires the bureau to provide DTSC with samples of the
product or components of the product sold in California from
products marked "contains NO added flame retardant chemicals"
for testing for the presence of added flame retardant
chemicals.
11)Authorizes the bureau to assess fines for violations as
specified.
COMMENTS :
1) Purpose of Bill . According to the author, consumers have the
right to know whether the furniture they are buying contains
added flame retardants.
The author asserts that SB 1019 will provide consumers, who
are purchasing furniture, easily accessible information on
whether the product contains added flame retardant chemicals.
According to the author, the bureau found that flame
retardant chemicals in furniture do not provide a meaningful
fire safety benefit. These chemicals are associated with a
variety of health concerns. Current label law does not
provide clear disclosure of the use of these chemicals even
though many consumers would like such information.
The author states, while TB 117 (described in comment #2) no
longer requires upholstered-furniture manufacturers to use
toxic flame retardant chemicals, information is not provided
about the contents of flame retardants in the furniture.
Consumers therefore, will not be able to tell if a piece of
furniture that meets the standard does or does not contain
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flame retardant chemicals.
SB 1019 simply seeks to provide the information necessary to
consumers to make informed purchasing decisions.
2) Technical Bulletin 117 . In 1975, California adopted
Technical Bulletin 117 (TB 117), requiring that each
component material (such as polyurethane foam used to fill
furniture) be able to withstand a small open flame,
equivalent to a candle, for at least 12 seconds.
The bureau is responsible for publishing and enforcing TB
117.
Furniture manufacturers typically meet TB 117 with additive
halogenated organic flame retardants. Although no other U.S.
states have a similar standard, because California has such a
large market many manufacturers meet TB 117 in products that
they distribute across the United States.
The proliferation of flame retardants, and especially
halogenated organic flame retardants, in furniture across the
United States is linked to TB 117.
3) Flame-Retardant Chemicals & Public Health Hazards .
Manufacturers of consumer products commonly add
flame-retardant chemicals to plastics and other flammable
materials to reduce the risk of fire. These chemicals are
released into the environment during manufacture, use, and
disposal of products containing flame retardants.
PCBs The earliest flame retardants, polychlorinated
biphenyls (PCBs) were banned in the United States in 1977
when it was determined that they are toxic. With the ban,
industries shifted to using brominated flame retardants.
PBDEs 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.
PBDEs are closely related in structure and behavior of PCBs.
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PCBs are known to have neurotoxic and carcinogenic effects
and were banned by Congress in 1977. Because of similarity
of the chemical's molecular structures, concerns were raised
about potential biological hazards of PBDEs.
Studies in laboratory animals and humans have linked PBDEs to
thyroid disruption, memory and learning problems, delayed
mental and physical development, lower IQ, advanced puberty,
and reduced fertility.
A 2009 in vivo animal study conducted by the United States
Environmental Protection Agency (US EPA) noted that PBDEs are
particularly toxic to the developing brains of animals.
Peer-reviewed studies have shown that even a single dose
administered to mice during development of the brain can
cause permanent changes in behavior, including hyperactivity.
A 1998 study in Sweden found the first evidence of potential
for breast milk contamination from PBDEs. In the Swedish
study, archived samples collected between 1972 and 1997 were
analyzed for the presence of PBDEs to get an overall summed
total of PBDEs in milk. The data from Sweden show a drastic
increase in the quantity of PBDEs detected in women's breast
milk from 1972 to 1997, with concentrations doubling every
five years.
Sweden's voluntary phase-out of PBDEs by companies and
branches of the government began as early as 1990, and the
Swedish government strongly encouraged the European Union to
ban PBDEs outright.
A striking response to Sweden's voluntary PBDE controls can
be seen after 1997. Total PBDE levels in Swedish women's
breast milk fell about 30% between 1997 and 2000.
The European Union has banned several types of PBDEs as of
2008, 10 years after the Swedish discovered that they were
accumulating in breast milk.
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Sweden is the only nation with a comprehensive breast milk
monitoring program, so it has been difficult to track PBDE
concentration trends elsewhere. However, in regions where
bans and restrictions have not been established, available
studies are showing that PBDE concentrations in breast milk
have risen far past Sweden's 1997 peak.
The highest recorded PBDE levels in humans to date have been
in the United States.
A 2002 study of PBDEs in San Francisco Bay Area women's
breast fat reported an average of 86 ng/g fat, which is 21.5
times higher than Sweden's 1997 peak.
Studies of PBDEs in maternal blood and milk in Texas and
Indiana from 2001 and 2002 reported levels similar to those
found in the San Francisco Bay Area.
Average PBDE levels in Japanese women's breast milk are
comparable with those found in Sweden and other parts of
Europe, and levels in Canada were recently found to be 25.4
ng/g fat.
The United States has average PBDE levels about 3 times
higher than those found in Canada, and more than 100 times
higher than those measured in Japan.
In 2003, concerned about the hazards posed by two types of
PBDEs, especially to breast-fed infants, the California
Legislature passed, and the Governor enacted, a ban on these
chemicals (AB 302 (Chan) Chapter 205, Statutes of 2003).
Chlorinated Tris. Chlorinated Tris (TDCPP) has been in use
since the 1960s. TDCPP was banned from use in children's
pajamas in 1977 when it was found to be mutagenic, but
remains in use as a foam additive in furniture, car seats,
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and other products.
Its use has increased in the United States following the 2006
ban on the common flame retardant PentaPBDE.
According to studies conducted in rats, TDCPP is associated
with increased tumor rates in kidneys and testes, some of
which were cancerous.
Evidence suggests that it may impact fertility by influencing
hormone levels and semen quality in men. A recently
published study found that TDCPP was a neurotoxin to brain
cells. In an assessment conducted by the Consumer Product
and Safety Commission, TDCPP was found to pose a threat to
human health.
Pursuant to Proposition 65, the State of California has
listed TDCPP as a chemical known to cause cancer.
On March 13, 2014, DTSC named TDCPP in children's foam padded
sleep products as a priority product to be evaluated in the
Safer Consumer Products Program for potential regulatory
action.
Because of molecular similarity, other flame retardants are
similarly linked to cancer and other above-listed adverse
health effects.
Additionally, many flame retardants degrade into compounds
that are also toxic, and in some cases the degradation
products may be the primary toxic agent. Halogenated
compounds with aromatic rings can degrade into dioxins and
dioxin-like compounds, particularly when heated, such as
during production, a fire, recycling, or exposure to sun.
Chlorinated dioxins are among the highly toxic compounds
listed by the Stockholm Convention on Persistent Organic
Pollutants.
4) Exposure Pathways . Nearly all Americans now tested have
flame retardants in their body.
Residents in North America tend to have substantially higher
body levels of flame retardants than people who live in many
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other developed areas; and around the world, human body
levels of flame retardants have increased over the last 30
years.
People can be exposed to flame retardants through several
routes, including diet; inhalation of dust from consumer
products in the home, vehicle, or workplace; or environmental
contamination near their home or workplace.
Infants and toddlers are particularly exposed to flame
retardants found in breast milk and dust. Because many
halogenated flame retardants are fat-soluble, they accumulate
in fatty areas such as breast tissue and are mobilized into
breast milk, delivering high levels of flame retardants to
breast-feeding infants.
As consumer products age, small particles of material become
dust particles in the air and land on surfaces around the
home, including the floor. Young children crawling and
playing on the floor frequently bring their hands to their
mouths, ingesting about twice as much house dust as adults
per day in the United States. Young children in the United
States tend to carry higher levels of flame retardants per
unit body weight than do adults.
Some occupations expose workers to higher levels of
halogenated flame retardants and their degradation products.
Studies have shown U.S. foam recyclers and carpet installers,
who handle padding often made from recycled polyurethane
foam, showed elevated levels of flame retardants in their
tissues. Workers in electronics recycling plants around the
world also have elevated body levels of flame retardants
relative to the general population. Electronics recyclers in
Guiyu, China, have some of the highest human body levels of
PBDEs in the world.
U.S. firefighters also show elevated levels of PBDEs and high
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levels of brominated furans, toxic degradation products of
brominated flame retardants.
5) Environmental Exposure . Flame retardants manufactured for
use in consumer products are found in various environments
around the world.
In 2009, the U.S. National Oceanic and Atmospheric
Administration released a report on PBDEs and found that, in
contrast to earlier reports, they were discovered throughout
the U.S. coastal zone. This nationwide survey found that New
York's Hudson Raritan Estuary had the highest overall
concentrations of PBDEs, both in sediments and shellfish.
Individual sites with the highest PBDE measurements were
found in shellfish taken from Anaheim Bay, California, and
four sites in the Hudson Raritan Estuary.
Watersheds that include the Southern California Bight, Puget
Sound, the central and eastern Gulf of Mexico off the
Tampa-St. Petersburg, Florida coast, and Lake Michigan waters
near Chicago and Gary, Indiana also were found to have high
PBDE concentrations.
Communities near electronics factories and disposal
facilities, especially areas with little environmental
oversight or control, develop high levels of flame retardants
in air, soil, water, vegetation, and people.
Organophosphorus flame retardants have been detected in
wastewater in Spain and Sweden, and some compounds do not
appear to be removed thoroughly during water treatment.
6) Efficacy . Recent review of these chemicals by both the
federal and California governments has found that the use
these chemicals for fire protection in compliance with TB 117
provide no "meaningful" protection.
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In the past, advocates for the flame retardant industry have
cited a study from the National Bureau of Standards
indicating that a room filled with flame-retarded products (a
polyurethane foam-padded chair and several other objects,
including cabinetry and electronics) offered a 15-fold
greater time window for occupants to escape the room than a
similar room free of flame retardants.
However, critics of this position, including the lead author
of this study, Vyentis Babrauskas, argue that the levels of
flame retardant used in that 1988 study are much higher than
the levels required by TB 117 and the levels used broadly in
the United States in upholstered furniture do not provide
meaningful fire protection.
Several studies in the 1980s tested ignition in whole pieces
of furniture with different upholstery and filling types,
including different flame retardant formulations. In
particular, they looked at maximum heat release and time to
maximum heat release, two key indicators of fire danger.
These studies found that the type of fabric covering had a
large influence on ease of ignition, that cotton fillings
were much less flammable than polyurethane foam fillings, and
that an interliner material substantially reduced the ease of
ignition. They also found that although some flame retardant
formulations decreased the ease of ignition, the most basic
formulation that met TB 117 had very little effect. In one
of the studies, foam fillings that met TB 117 had equivalent
ignition times as the same foam fillings without flame
retardants.
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" and
California's bureau made similar findings.
In actuality, the chemicals pose additional risk because
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when ignited by fire they burn and degrade into a dioxin
compound that is carcinogenic posing inhalation risk to
residents and firefighters.
7) Chicago Tribune "Playing with Fire" . In 2012, the Chicago
Tribune published a series of articles: "Playing With Fire,"
which investigated the proliferation of the use of flame
retardant chemicals in the United States, and evaluated the
scientific evidence of the safety of flame retardant
chemicals and their effectiveness in reducing damage from
fire.
The series writers' investigation found that furniture first
became treated with flame retardants because of the tobacco
industry, according to internal cigarette company documents
examined by The Tribune.
A generation ago, tobacco companies were facing growing
pressure to produce fire-safe cigarettes, because so many
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house fires started with smoldering cigarettes. The tobacco
industry worked with the chemical industry to advocate for
policies that would require furniture to contain flame
retardants rather than require fire-safe cigarettes.
The documents examined by the Tribune show that cigarette
lobbyists secretly organized the National Association of
State Fire Marshals and then guided its agenda so that it
pushed for flame retardants in furniture.
The Tribune also found that an advocacy group called
Citizens for Fire Safety, along with other fire safety
groups around the world, was created to explicitly lobby
against efforts to ban, restrict or further regulate flame
retardants. The Citizens for Fire Safety describes itself
as "a coalition of fire professionals, educators, community
activists, burn centers, doctors, fire departments and
industry leaders." However, according to documents obtained
from the California Secretary of State, the organization is
a trade association with only three members: Albemarle
Corporation, ICL Industrial Products, and Chemtura
Corporation, which together represent 40% of the world
market for flame retardants.
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The Tribune authors write, "These powerful industries
distorted science in ways that overstated the benefits of
the chemicals, created a phony consumer watchdog group that
stoked the public's fear of fire and helped organize and
steer an association of top fire officials that spent more
than a decade campaigning for their [the tobacco and
chemical industries'] cause."
According to the Tribune articles, Citizens for Fire Safety
paid a prominent Seattle physician, Dr. David Heimbach, the
former president of the American Burn Association, and made
donations to other community activists to testify before
California state lawmakers in a hearing of the Senate
Committee on Business and Professions against SB 772 (Leno,
2009), which would have exempted certain children's products
from flame retardant requirements.
Dr. Heimbach testified that he treated a 7-week-old girl who
was burned in a fire started by a candle that ignited a
chemical-free pillow. The Tribune's investigation found that
Dr. Heimbach made up his testimony before the Senate
committee. Their investigation found that there was no
7-week-old burn victim and no candle fire or patient that he
treated as a result of fire where flame retardants could have
prevented injury. After the Chicago Tribune investigation,
Heimbach admitted he made up the story.
In March, 2014, the State of Washington issued disciplinary
charges against Dr. Heimbach. The medical licensing
authorities allege that Heimbach fabricated testimony and
failed to disclose his ties to the chemical industry and
falsely presented himself as an unbiased burn expert when he
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was in fact collecting $240,000 from flame retardant
manufacturers. The Medical Quality Assurance Commission
charges state that Heimbach's "misrepresentations to
legislators, to burn experts and to other doctors is conduct
which harms the reputation of the profession?. This conduct
demonstrates an unfitness to bear the responsibilities or
enjoy the privileges of the profession." He faces seven
charges, including unprofessional conduct and violating
patient privacy. To date a hearing has not been set.
This series of articles raises serious questions as to
whether false information and testimony provided to
California's Legislature influenced the failure of previous
legislation.
8) TB 117-2013 . In 2012, Governor Brown directed the bureau to
review California's four-decade-old flammability standards
and recommend changes to reduce toxic flame retardants while
continuing to ensure fire safety. Governor Brown stated,
"Toxic flame retardants are found in everything from high
chairs to couches and a growing body of evidence suggests
that these chemicals harm human health and the environment.
We must find better ways to meet fire safety standards by
reducing and eliminating wherever possible dangerous
chemicals."
In recognition of TB 117's inadequacy in addressing the
flammability performance of upholstery cover fabric and its
interactions with underlying filling materials and the health
concerns over the use of these chemicals, the bureau
published TB 117-2013 to allow for a smolder standard that
does not require the use of flame retardant chemicals to be
in compliance. TB117-2013 supersedes TB 117.
SB 1019 builds off of the revised technical bulletin (TB
117- 2013) by providing transparency in regard to the
chemical content of upholstered furniture.
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9) Prior Legislation . AB 127 (Skinner, Chapter 579, Statutes of
2013), requires the State Fire Marshal, in consultation with
the bureau, to review the flammability standards for building
insulation materials, including whether the flammability
standards for some insulation materials can only be met with
the addition of chemical flame retardants and requires, if
deemed appropriate by the State Fire Marshal based on this
review, the State Fire Marshal to, by July 1, 2015, propose
for consideration by the commission updated insulation
flammability standards that accomplish certain things,
including maintaining overall building fire safety.
SB 147 (Leno, 2011) would have required the bureau, on or
before March 1, 2013, to modify TB 117 regarding product
standards for fire retardant furniture to include a smolder
flammability test to provide an alternative method of
compliance that can be met without the use of chemical fire
retardants and does not compromise fire safety; required the
bureau, in developing the smolder flammability test, to
consider the draft smolder standard proposed by the federal
Consumer Product Safety Commission, to take into
consideration the cost to manufacturers and consumers, and
amend existing label specifications to identify any products
meeting that adopted standard. The bill further authorized
the Bureau Chief to additionally exempt polyurethane foam
from the fire retardant requirements, as specified.
Note : the provisions of this bill have been largely
implemented through the revision of TB 117 in 2013.
SB 1291 (Leno) of 2010, would have required the DTSC to
include, as a chemical under consideration, any chemical that
is used, or is proposed to be used, as a flame retardant, in
accordance with the review process (Green Chemistry Process)
under the current chemical of concern regulations. That bill
was placed on the inactive file on the Senate Floor and died
on file.
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SB 772 (Leno) of 2009, would have exempted "juvenile
products," as defined, from the fire retardant requirements
pursuant to federal law and the regulations of the bureau,
except that the bureau could have, by regulation modified
this exemption if the bureau determined that any juvenile
products posed a serious fire hazard. That bill died in the
Assembly Appropriations Committee.
Note : the provisions of SB 772 have been largely implemented
through regulation by the bureau effective December 29, 2010.
AB 706 (Leno) of 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. That bill
failed passage on the Senate Floor.
AB 302 (Chan) Chapter 205, Statutes of 2003, banned the use
of penta and octa PBDEs after January 1, 2008.
10)Double Referral to Senate Rules Committee . If this measure
is approved by the Senate Environmental Quality Committee,
the do pass motion must include the action to re-refer the
bill to the Senate Rules Committee.
SOURCE : California Professional Firefighters
Center for Environmental Health
Natural Resources Defense Council
SUPPORT : Alliance for Toxic-Free Fire Safety
Architects, Designers and Planners for Social
Responsibility
California League of Conservation Voters
CALPIRG
Clean Water Action
Commonweal Biomonitoring Resource Center
Consumer Federation of California
Consumers Union
EarthJustice
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Environmental Working Group
Friends of the Earth
Health Care Without Harm
Just Transition Alliance
Perkins + Wills
Sierra Club California
OPPOSITION : None on file