BILL ANALYSIS �
SB 1019
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Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
SB 1019 (Leno) - As Amended: June 10, 2014
SENATE VOTE : 29-6
SUBJECT : Upholstered furniture: flame retardant chemicals.
SUMMARY : Requires manufacturers of upholstered furniture to
indicate, on a label currently required by law, whether or not
the product contains added flame retardant chemicals.
Specifically, this bill :
1)Makes legislative findings about California's upholstered
furniture flammability standards and the adverse public health
and environmental impacts of flame retardant chemicals.
2)Defines terms, including:
a) "Covered products" as 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 (TB) 117-2013, entitled "Requirements,
Test Procedure and Apparatus for Testing the Smolder
Resistance of Materials Used in Upholstered Furniture,"
and,
b) "Added flame retardant chemicals" as flame retardant
chemicals that are present in any covered product or
component thereof at levels above 1,000 parts per million.
3)Requires a manufacturer of covered products to indicate
whether or not the product contains added flame retardant
chemicals on the label currently required by the California
Code of Regulations (TB 117-2013).
4)Requires label TB 117-2013 to include the following statement:
"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."
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5)Requires the manufacturer of a covered product sold in
California to retain documentation to show whether flame
retardant chemicals were added. Authorizes a written
statement by the supplier of each component covered by TB
117-2013 attesting either that flame retardant chemicals were
added or not added to be sufficient documentation.
6)Requires Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation (BEARHFTI) to ensure
compliance with the labeling and documentation requirements in
this bill.
7)Requires, within 30 days of a request from BEARHFTI, a
manufacturer of a covered product sold in California to
provide documentation establishing the accuracy of the flame
retardant chemical statement on the required label.
8)Requires BEARHFTI to assess fines of not less than $2,500, but
not more than $15,000 for the failure of the manufacturer of
the covered product to maintain or provide upon request the
required documentation.
9)Specifies that a manufacturer of covered products and
component suppliers shall be jointly and severally liable for
violations of the documentation requirements.
10)Requires BEARHFTI to provide the Department of Toxic
Substances Control (DTSC) with a selection of samples, as
specified, from covered products marked "contain NO added
flame retardant chemicals" for testing for the presence of
added flame retardant chemicals.
11)Authorizes, if DTSC's testing shows that a covered product
labeled as "contain NO added flame retardant chemicals" is
mislabeled because it contains added flame retardant
chemicals, BEARHFTI to assess fines for violations against
manufacturers of the covered product and component
manufacturers to be held jointly and severally liable for the
violation.
12)Requires fines for mislabeling to be assessed in increasing
severity, from $1,000 to $10,000, depending on the frequency
of the violation and in accordance with the following factors:
a) The nature and severity of the violation;
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b) The good or bad faith of the cited person;
c) The history of previous violations;
d) Evidence that the violation was willful; and,
e) The extent to which the cited person or entity has
cooperated with the BEARHFTI.
13)Requires BEARHFTI to adjust all minimum and maximum fines for
mislabeling for inflation every five years.
14)Authorizes BEARHFTI, if DTSC's testing shows that a covered
product labeled as "contain NO added flame retardant
chemicals" is mislabeled because it contains added flame
retardant chemicals to request that the label 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.
15)Authorizes BEARHFTI, if DTSC's testing shows that a covered
product labeled as "contain NO added flame retardant
chemicals" is mislabeled because it contains added flame
retardant chemicals to request additional testing of more
products belonging to the same SKU at the manufacturer's
expense.
16)Requires BEARHFTI to make information about any labeling
citation available to the public on its Internet Web site.
17)Specifies that it is the duty of BEARHFTI to receive
complaints from consumers concerning covered products sold in
California.
18)Authorizes BEARHFTI to adopt regulations pursuant to the
Administrative Procedure Act to carry out the requirements of
the bill.
EXISTING LAW :
1)Establishes the Home Furnishings and Thermal Insulation Act
and requires it to be administered by BEARHFTI within the
Department of Consumer Affairs (DCA). (Business and
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Professions Code (BCP) � 19000 et seq.)
2)Requires protection of the public to be the highest priority
for BEARHFTI in exercising its licensing, regulatory, and
disciplinary functions. Requires, whenever the protection of
the public is inconsistent with other interests sought to be
promoted, the protection of the public to be paramount. (BCP
� 19004.1)
3)Requires all seating furniture sold or offered for sale by an
importer, manufacturer, or wholesaler, including any seating
furniture sold to or offered for sale for use in a hotel,
motel, or other place of public accommodation, and
reupholstered furniture to which filling materials are added,
shall be fire retardant and shall be labeled in a manner
specified by BEARHFTI. (BCP � 19161)
4)Requires all flexible polyurethane foam in the form of slabs,
blocks, or sheets, or which is shredded, as specified, that is
offered for sale to the general public at retail outlets to be
fire retardant. Defines "fire retardant" as a product that
meets the regulations adopted by BEARHFTI. (BPC � 19161.3)
5)Prohibits a person from manufacturing, processing, or
distributing in commerce a product or part of a product that
contains more than 1/10th of 1% of pentaBDE or octaBDE.
(Health and Safety Code (HSC) � 108922)
6)Requires, pursuant to TB 117-2013, beginning January 1, 2015,
all filling materials and cover fabrics contained in
upholstered furniture sold in California to meet certain
smolder resistant testing standards, and to be labeled as
specified. (Article 13, Division 3, Title 4, California Code
of Regulations � 1374)
FISCAL EFFECT : Unknown.
COMMENTS :
Need for the bill : According to the author, "Consumers have the
right to know whether the furniture they are buying contains
added flame retardants. SB 1019 will provide consumers who are
purchasing furniture easily accessible information on whether
the product contains added flame retardant chemicals.
California's BEARHFTI found that flame retardant chemicals in
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furniture do not provide a meaningful fire safety benefit.
These chemicals are associated with a variety of health
concerns. Current labeling law does not provide clear
disclosure of the use of these chemicals even though many
consumers would like such information?
"SB 1019 would require upholstered furniture manufacturers to
disclose via modifying an existing law product label and
specified point-of-sale information as to whether or not the
furniture contains added flame retardant chemicals. This bill
provides an opportunity for retailers and manufacturers to
utilize the information that is disclosed pursuant to SB 1019 to
further the goal of helping their customers make informed buying
decisions. Ultimately, consumers want to be able to exercise an
informed choice and buy products that not only keep them and
their families safer, but also keep our firefighters safer. SB
1019 assists manufacturers, retailers and consumers in achieving
this."
Flame retardant chemicals : Flame retardants are added to
plastic, foam, textiles, electronics, and other products to
reduce the likelihood that products will catch fire and to slow
the rate at which they burn if they do catch fire. They can act
to reduce the chances that something catches on fire, or slow
the progression of the fire after it starts. Chemical flame
retardants undergo a chemical reaction that quenches the fire,
typically by reducing the amount of oxygen available to feed the
fire.
Human health and environmental impacts of flame retardant
chemicals : Many flame retardant chemicals are persistent
chemicals that bioaccumulate and biomagnify. PBDEs, the most
thoroughly studied of the flame retardant chemicals, have been
found in birds, fish, shellfish, amphibians, marine mammals,
sewage sludge, sediments, air samples, meats, dairy products,
and even vegetables. There has been extensive animal research
over the past decade, indicating that PBDE exposure can lead to
abnormalities in learning, memory, neurodevelopment,
hyperactivity, endocrine disruption, and neurotoxic effects.
In humans, PBDEs have been found to accumulate in blood, fat,
and breast milk. According to DTSC, the levels of PBDEs
measured in humans in the United States and Canada are typically
at least 10 times higher than those in Europe, and appear to be
doubling every few years. More recent research has shown that
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PBDE exposure in humans may lead to endocrine disruption,
reproductive difficulty, neurodevelopment, reduced IQ, and
elevated thyroid levels.
Upholstered furniture flammability standard : According to
BEARHFTI, in 1972, AB 2165 (Burton) was signed requiring BEARHFT
to establish upholstered furniture flammability standards. AB
2165 enacted Business and Professions Code Section 19161, which
required all upholstered furniture sold in California to be fire
retardant and labeled as such.
BEARHFTI states that it develops flammability standards in the
form of Technical Bulletins (TBs) which are adopted through
regulation. There are also a number of other federal
flammability standards developed by the United States Consumer
Product Safety Commission (CPSC) which are currently in effect
nationwide. While CPSC has been studying a national residential
upholstered furniture standard for several years, California
remains the only state with a residential upholstered furniture
flammability standard. However, since California is such a
large portion of the national market, most manufacturers choose
to meet California's standards in all of their products across
the country.
TB 117 : According to BEARHFTI, in October 1975, regulations
were promulgated and resulted with the development of Technical
Bulletin 117 (TB 117) entitled, "Requirements, Test Procedures
and Apparatus for Testing the Flame Retardance of Filling
Materials Used in Upholstered Furniture." This mandatory
performance standard requires that the concealed filling
materials and cover fabric of upholstered furniture undergo
individual component testing to ensure that they pass open flame
and cigarette smolder tests. Manufacturers meet this
requirement, predominately, through using polyurethane foam
treated with flame retardant chemicals, which must withstand
exposure to a 12 second small open flame.
Recently, BEARHFTI determined that TB 117 did not adequately
address the flammability performance of upholstered furniture
performance of the upholstery cover fabric and its interactions
with underlying filling materials and that flame retardant foam
can actually increase smolder propensity. In addition, concerns
have been growing about the human health and environmental
impacts of flame retardant chemicals. As a response, in 2012,
Governor Brown directed BEARHFTI to revise flammability
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standards for upholstered furniture sold in the state.
TB 117- 2013 : In recognition of TB 117's inadequacy at
addressing the flammability performance of upholstery cover
fabric and its interactions with underlying filling materials,
as well as noting the health concerns over the use of flame
retardant chemicals, BEARHFTI published TB 117- 2013 in November
2013. TB 117-2013 updates flammability standards from the open
flame method of testing to a smoldering test. Manufacturers
have indicated that they can comply with TB 117-2013 without the
use of flame retardant chemicals. TB 117-2013 became effective
on January 1, 2014. Manufacturers will have a year to complete
the transition and must come into full mandatory compliance on
January 1, 2015. TB 117-2013 supersedes TB 117.
The author's office indicates that existing regulations require
manufacturers to include the compliance tag required by TB 117-
2013 on all upholstered furniture sold in the state beginning in
January 2015. This bill coordinates with the existing
requirement by requiring flame retardant use to be included on
that tag in the same time frame. This information will provide
consumers with information about the products they are
purchasing for their homes.
Arguments in support : The Natural Resources Defense Council
(NRDC) asserts, "BEARHFTI found that flame retardant chemicals
as used in residential furniture do not provide a meaningful
fire safety benefit. These chemicals are associated with a
variety of health concerns, including cancer, decreased
fertility, hormone disruption, lower IQ, and hyperactivity.
California's children have some of the highest levels of flame
retardants in their blood and low-income communities of color
have high exposure as well? Consumers should be able to readily
identify furniture that does not contain these chemicals because
of health and environmental concerns. However, currently there
is no disclosure required for added flame retardants, so
consumers cannot determine if flame retardants have been added
to furniture."
The California Professional Firefighters argue, "Consumers want
to be able to exercise a knowledgeable choice and buy products
that not only keep them and their families safer, but our
state's firefighters safer as well. SB 1019 assists
manufacturers, retailers and consumers in achieving this
important goal. Ultimately, consumers who exercise a choice to
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purchase safer products create a direct and positive impact on
the reduction of toxic exposures to firefighters."
Arguments in opposition : The California Manufacturers &
Technology Association, along with several other industry
groups, argues in a letter submitted on a previous version of
the bill, "The bill as drafted: lacks scientific justification;
conflicts with existing California consumer product and chemical
safety laws; and contains statements of intent and operative
language that are either false, incomplete or taken out of
context, thereby failing to provide consumers with meaningful
information about the safety of products that may contain flame
retardant chemicals." They contend that this bill will
"unnecessarily alarm consumers over the safety of products they
may purchase," and conflicts with current Proposition 65 warning
labels for hazardous chemicals. The letter also objects to the
array of reporting requirements on manufacturers that could
expose them to monetary penalties, which they argue are
inappropriately harsh.
Recent related legislation :
1)AB 2197 (Mitchell, 2012), would have required BEARHFTI to
revise regulations to require all seating furniture sold or
offered for sale to meet a smolder flammability test rather
than an open flame-test. This bill was not heard in the
Assembly ESTM committee, at the author's request.
2)SB 147 (Leno, 2011), would have required the Bureau, on or
before March 1, 2013, to modify the requirements for
flammability of residential upholstered furniture to include a
smolder flammability test as an alternative method of
compliance. This billed failed passage in the Senate
Committee on Business, Professions, and Economic Development.
Note: the intent of this bill and AB 2197 (2012) was
implemented through regulation through the adoption of TB
117-2013.
3)SB 1291 (Leno, 2010), would have required the Department of
Toxic Substances Control to include, as a chemical under
consideration in the Green Chemistry process, any chemical
that is used, or is proposed to be used, as a flame retardant.
That bill was placed on the inactive file on the Senate Floor
and died on file.
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REGISTERED SUPPORT / OPPOSITION :
Support:
CalFIRE Local 2881 (co-sponsor)
California Professional Firefighters (co-sponsor)
Center for Environmental Health (co-sponsor)
Natural Resources Defense Council (co-sponsor)
Alliance for Toxic-Free Fire Safety
Architects, Designers and Planners for Social Responsibility
Association of Regional Center Agencies
BlueGreen Alliance
Breast Cancer Fund
California Labor Federation
California League of Conservation Voters
California Nurses Association
Californians for a Healthy & Green Economy
California Public Interest Research Group
City and County of San Francisco
Clean Water Action
Coalition for Clean Air
Commonweal Biomonitoring Resource Center
Consumer Federation of California
Consumers Union
EarthJustice
Environmental Working Group
Environment California
Esperanza Community Housing Corporation
Friends of the Earth
Health Care Without Harm
Just Transition Alliance
Kaiser Permanente
Long Beach Firefighters
Los Angeles County Fire Fighters, Local 1014
Perkins + Will
Pesticide Action Network
Physicians for Social Responsibility - Los Angeles
Physicians for Social Responsibility - San Francisco Bay Area
Sierra Club California
Stockton Professional Firefighters
United Firefighters of Los Angeles City, Local 112
Opposition:
American Chemistry Council
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American Home Furnishing Alliance
California Chamber of Commerce
California Furniture Manufacturers Association
California Manufacturers & Technology Association
Chemical Industry Council of California
Industrial Environmental Association
National Federation of Independent Businesses
North American Home Furnishing Association
North American Home Furnishings Association
Polyurethane Foam Association
Upholstered Furniture Action Council
Analysis Prepared by : Shannon McKinney / E.S. & T.M. / (916)
319-3965