California recently required labeling on upholstered furniture to identify whether it contains flame retardant chemicals. Now the Legislature is seeking to expand that requirement to certain children’s products. Earlier this month, the Senate approved SB 763, which would require labeling on a variety of upholstered (stuffed or filled) products intended for infants and children under 12 years of age, including:
- Bassinets
- Booster seats
- Infant car seats
- Changing pads
- Floor play mats
- Highchairs and highchair pads
- Bouncers
- Carriers
- Seats
- Swings
- Walkers
- Nursing pads and pillows
- Playpen padding
- Portable hook-on chairs
- Strollers
- Nap mats
- Foam crib mattresses
Labeling
SB 763 requires that manufacturers of covered children’s products add a permanent label to the product stating:
“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.
This product:
_____contains added flame retardant chemicals
_____contains NO added flame retardant chemicals”
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.
For those of you versed in the labeling requirement set out in SB 1019, enacted last year, you may notice that oddly, SB 763 does not require labels identical to SB 1019. SB 763 reverses the position of the paragraph on flammability and the disclosure. Given the cost of producing labels, one would hope this gets corrected by the Assembly.
Recordkeeping requirements
Manufacturers must maintain documentation supporting their disclosure. If upstream suppliers provide components to the manufacturer of the ultimate product, written certifications from the suppliers of the component parts are sufficient.
Enforcement
The bill authorizes the California Bureau of Electronic and Appliance Repair, Home Furnishings, and Thermal Insulation 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.
Impact on retailers
SB 763 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. It does, however, require that internet retailers place the disclosure “in close proximity to the juvenile product’s price, on each Internet Web site pages that contains a detailed description of the juvenile product and its price.” It similarly requires the disclosure to be on the page with the product for catalog sellers.
While we still have no insight into Bureau’s approach to enforcement, it could interpret SB 763 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.
Next steps
The bill was introduced to the Assembly on June 4, and it is unclear whether it will garner support there. The bill appears to have broad support from public health and environmental advocates, as well as California firefighters.
