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Washington State Flame Retardant Ban Begins July 1, 2017

Beginning July 1, 2017, the State of Washington shall prohibit the sale and distribution of children’s products and residential upholstered furniture containing more than 1000 parts per million (ppm) of any of the following flame retardants in any product component:

• Tris(1,3-dichloroisopropyl) phosphate (TDCPP) (CAS Registration Number 13674-87-8);
• Tris(2-chloroethyl) phosphate (TCEP) (CAS Registration Number 115-96-8);
• Decabromodiphenyl ether (CAS Registration Number 1163-19-5);
• Hexabromocyclododecane (HBCD) (CAS Registration Number 25637-99-4); and
• The additive tetrabromobisphenol A (TBBPA) (CAS Registration Number 79-94-7).

The restriction is part of the Children’s Safe Products Act (CSPA), Revised Code of Washington (RCW) Chapter 70.240, first enacted in 2008 and amended in April 2016 to add the flame retardant restrictions. The regulation applies to any manufacturer, wholesaler, or retailer who “knowingly” offers children’s products or residential upholstered furniture for sale or use in the state of Washington, and does not contain an exception for existing stock.

Manufacturers of affected products must notify persons who sell the products in Washington by April 1, 2017. If any products containing the restricted chemicals in quantities above 1000 ppm are sold after July 1, 2017, manufacturers will be required to recall the product and reimburse the retailer or purchaser for sold merchandise. Manufacturers violating these requirements will be subject to penalties of up to $5,000 per violation.

Under RCW 70.240.010, children’s products include toys, children’s cosmetics, children’s jewelry, and products intended as clothing and teething, sleep, or feeding aids. Residential upholstered furniture is defined in RCW 70.76.010 as “residential seating products intended for indoor use in a home or other dwelling intended for residential occupancy that consists in whole or in part of resilient cushioning materials enclosed within a covering consisting of fabric or related materials, if the resilient cushioning materials are sold with the item of upholstered furniture and the upholstered furniture is constructed with a contiguous upholstered seat and back that may include arms.”

Clearing out products from supply chains, in time for a ban like this one, is not an easy exercise. The initial challenge lies in evaluating whether product components contain the restricted substances above 1000 ppm, which can be a time- and resource-intensive task. Manufacturers should not rely on the “knowing” violation aspect of the law to avoid that basic fact-finding effort. Beyond that, the requirement to notify downstream sellers, and pull product, may trigger difficult business conversations and perhaps even breach of contract claims.

That said, this Washington State restriction is not the only flame retardant restriction in the U.S. Minnesota has enacted a similar prohibition that goes into effect in 2019. California has identified children’s sleep products containing TDCPP or TCEP as possible Priority Products under its Safer Consumer Products program. And, a wave of California Proposition 65 enforcement actions beginning 2012, involving listed flame retardants in furniture and children’s products, also reflect increasing pressure on product manufacturers to reduce or eliminate flame retardants, pressure which has rippled up the supply chain to component manufacturers as well. Businesses that have understood the import of these developments will surely have an easier time managing the Washington State requirements.

This blog article was researched and written by Brown University Class of 2018 student Aisha Keown-Lang. Ms. Lang is studying biology and political science at Brown University with the goal of going into bioethics and public health. Her special interest in genetics stems from her research in the Li Lab at UCSF and the Gerbi Lab at Brown. After having worked with children in the Providence school system for nearly three years, her commitment to improving scientific literacy and expanding health services in underserved communities remains strong. Ms. Lang is currently a writer for Brown’s Science Cartoon Program (SciToons), which aims to communicate scientific research and ideas to a diverse audience.

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Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.