In conjunction with changes to California upholstered furniture flammability regulations, commonly referred to as TB-117, the state recently enacted complementary legislation requiring that furniture “law labels” disclose whether the products contain flame retardant chemicals.
California’s flammability requirements
Prior to 2014, California flammability requirements for upholstered furniture, set forth in California Bureau of Home Furnishings and Thermal Insulation Technical Bulletin 117, or TB 117, required open flame testing on filling materials, an aggressive test that is difficult to pass without the use of chemical flame retardants.
Effective January 1, 2014, BHFTI updated TB 117 (now known as TB 117-2013) to meet modern manufacturing methods, eliminating the open flame test and giving manufacturers the option of smolder-resistant cover fabrics or smolder-resistant barriers beneath the cover fabrics.
While compliance with TB 117-2013 is voluntary in 2014, as of January 01, 2015 manufacturers must meet the new flammability standard and labeling requirements.
Labeling for flame retardant chemicals
BHFTI hopes that through elimination of open flame testing, consumer fire protection will be preserved while the reliance on flame retardant chemicals will be significantly reduced or eliminated. However, TB 117-2013 contains no prohibition on the use of chemical flame retardants.
As a result, the Legislature enacted SB 1019, which provides consumers with notice of upholstered furniture products containing chemical flame retardants. SB 1019 adds Section 19094 to the California Business & Professions Code, requiring that manufacturers of covered products add to the “law label” of each product the following statement:
“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.”
Manufacturers must mark an “X” next to the applicable statement. For the purposes of the disclosure, a product contains added flame retardant chemicals if the chemical is present in amounts above 1,000 parts per million.
Manufacturers must also maintain documentation showing whether a product has added flame retardant chemicals. If upstream suppliers provide components subject to TB 117-2013 to the manufacturer of the ultimate product, this requirement can be met through written certifications from the suppliers of the component parts.
SB 1019 synchs with the revisions to TB 117-2013, requiring the addition of this label language to any upholstered furniture “required to meet the test requirements set forth in Technical Bulletin 117-2103.”
Thus, this requirement kicks in for furniture manufactured on and after January 1, 2015.
The bill authorizes BHFTI to fine a manufacturer between $2,500 and $15,000 for failing to maintain documentation regarding the existence of flame retardant chemicals in products, with the sliding scale of penalties tied to factors like culpability, history of violations, and cooperation with the Bureau.
It also provides for fines for manufacturer mislabeling, ranging from $1,000 to $2,500 for a first violation, and increasing for subsequent violations all the way up to $7,500 to $10,000.
SB 1019 provides no definition of manufacturer (i.e., it does not expand the term to include an importer or other responsible entity located in California), and it contains no express compliance obligations for retailers of covered products.
We expect the Bureau to interpret SB 1019 as prohibiting retailers from selling covered products in California without appropriate labeling based on the general compliance provision in Business & Professions Code § 19072.
The Bureau may also promulgate regulations requiring more direct compliance from retailers or otherwise issue agency guidance discussing retailer obligations. The general enforcement provisions for upholstered furniture authorize the Attorney General and district, county, and city attorneys to obtain injunctive relief and civil penalties of up to $2,500 per violation.