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Will California S.B. 1019 Cause Confusion For Proposition 65 Compliance? – Yes.

On September 30, 2014, Governor Brown signed S.B. 1019 into law.  S.B. 1019 requires manufacturers of flexible polyurethane foam or upholstered (or reupholstered) furniture to label their products as containing — or not containing, as the case may be — added flame retardants. The law’s stated purpose is to “provide California consumers clear information about the furniture products they are purchasing, specifically concerning compliance with fire safety standards and the presence of added flame retardant chemicals.” Aside from the fact that the information to be provided is not all that clear, compliance with S.B. 1019 will pose significant Proposition 65 challenges to entities which manufacture, distribute or sell such furniture products.  The key message is this:  no matter what the S.B. 1019 label says, the furniture manufacturer — and the entities downstream in its supply chain — always should independently consider how Proposition 65 applies to the product and whether to provide a Proposition 65 warning for it.

The passage of S.B. 1019 follows the 2013 revisions to California Technical Bulletin 117 (TB 117) by the Bureau of Electronic and Appliance Repair, Home Furnishings, and Thermal Insulation (the Bureau).  TB 117 imposed certain flame resistance requirements on specified categories of furniture products. Although TB 117 did not require the use of flame retardants to meet its requirements, the use of flame retardants allowed its standards to be met.  The revisions to TB 117, now TB 117-2013, allows furniture manufacturers to meet a lower, smoldering standard, which purportedly may be met with or without the use of flame retardant chemicals.

The Bureau will implement and enforce S.B. 1019.  The law requires the manufacturers of “covered products” — i.e., products covered by TB 117-2013 — to place labels on those products stating whether or not they contain “added flame retardants.” The definition of “added flame retardant” is “flame retardant chemicals that are present in any covered product or component thereof at levels above 1000 parts per million” (ppm). “Flame retardant chemical,” in turn, is broadly defined as “any chemical or chemical compound for which a  functional use is to resist or inhibit the spread of fire.”

The label required under S.B. 1019 must state:  

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 place an “X” in the appropriate blanks and must maintain documentation to show whether flame retardant chemicals are added. If they do not maintain such documentation, or if they do not provide the documentation to the Bureau upon request, they will be subject to fines of up to $15,000.

S.B. 1019 also authorizes the Bureau to provide furniture samples designated as containing “NO added flame retardant” to the Department of Toxic Substances Control for confirmatory testing. Based on the results of such testing, the Bureau may require that the labels for other units with the same SKU be revised to reflect that flame retardant chemicals are added, may require further testing (with testing costs paid by the manufacturer), and may assess fines which can escalate to up to $10,000 per violation.

The disconnect between S.B. 1019 and Proposition 65 results primarily from the laws’ different standards. S.B. 1019 essentially imposes a flame retardant product content standard of 1000 ppm. If the product content level is below that, then the “contains NO added flame retardant chemical” phrase may be checked.  However, Proposition 65 imposes a dose standard.  For example, the dose level for the listed flame retardant TDCPP (also known as “Chlorinated Tris” or “Tris”), above which a warning is required, is 5.4 micrograms per day. It is not possible to translate a Proposition 65 dose standard to a product content standard without the expertise of a toxicologist.

Worse, S.B. 1019’s 1000 ppm standard is over an order of magnitude above the product content standard established by many Proposition 65 settlements for TDCPP and other listed flame retardant chemicals. Hundreds of Proposition 65 60-day notices have been served on manufacturers, distributors and retailers of furniture products since October 2012, the effective date of the Proposition 65 listing of TDCPP. These notices, primarily served by the Center for Environmental Health (CEH) and plaintiffs represented by The Chanler Group, have resulted in settlements restricting the use of not only TDCPP but other flame retardants, including even flame retardants not listed under Proposition 65.  The CEH settlements impose an across-the-board prohibition on intentionally added flame retardants; The Chanler Group settlements establish a 25 ppm product content standard for TDCPP and certain other listed flame retardants.  These settlement-based standards, while not binding on non-parties, as a practical matter establish industry-wide standards and create obstacles to negotiating different resolutions with private enforcers.

Thus, a “good” S.B. 1019 label — one in which the “contains NO added flame retardant chemicals” statement is marked — has little relevance to a Proposition 65 analysis. Manufacturers, distributors and retailers of covered products still must assess whether a Proposition 65 warning should be provided for the product. Further, entities subject to Proposition 65 settlements cannot simply rely on a “good” S.B. 1091 label to meet their commitments under the typical CEH or The Chanler Group settlement agreements.

On the other end of the spectrum, a S.B. 1019 label indicating that the product contains added flame retardants triggers different concerns. In those circumstances, the product manufacturer, distributor and retailer should carefully consider whether to provide a Proposition 65 warning, given the current enforcement climate.  However, if the entity already is subject to a settlement that imposes a reformulation requirement inconsistent with S.B. 1019’s 1000 ppm standard and that does not otherwise allow warnings, the only other option may be to refrain from selling the product in California.

Finally, providing a Proposition 65 warning for a flame retardant along with a “good” S.B. 1019 label may seem contradictory, at least upon a superficial analysis.  In those circumstances, the furniture manufacturer should anticipate requests for further explanation from downstream entities in the supply chain, consumers — and even the Bureau.

As is always the case with Proposition 65, buyer beware.

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.