2013 by Powell Slaughter in Industry, Legal
California Is Set to Revise its Flammability Standard—the Rest of the Country Awaits.
Never underestimate the power of the media.
A Chicago Tribune investigative report last summer examining the eco-toxicity of flame retardant chemicals used to meet the State of California’s open flame test for furniture led Governor Jerry Brown to demand a revision to the law, Technical Bulletin 117.
California regulations governing substances such as formaldehyde in home furnishings products have led to national standards, so retailers need to keep track of developments in the state regarding the issue of flammability in the products they sell on their floors—and anything else that might land them in legal trouble in the future (see accompanying story, “Prop 65 Looms”).
When it comes to flammability, a lot is happening fast, and that’s one reason the American Home Furnishings Alliance made flammability a focal point of its annual Sustainability Summit last month in Charlotte, N.C.
“People doing the science aren’t talking to the people making the decisions,” said Arlene Blum, a biophysical chemist who’s executive director and founder of the Green Science Policy Institute, Berkeley, Calif., and a visiting scholar at the University of California’s Department of Chemistry, during her keynote address to the AHFA gathering.
CHEMICAL HARM VS. LIVES SAVED
Blum has examined the toxicity of flame retardant chemicals since the 1970s, when her research was instrumental in banning the use of brominated tris in children’s pajamas, and her studies played a big role in the Chicago Tribune’s report. She got more media attention again in November with the release of a study examining the flame retardant chemicals found in sofas purchased over the last two decades. The gist of her argument is that the long-term health effects of off-gassing from flame-retarding chemicals causes more harm than any lives purportedly saved through regulations such as TB 117.
The revised standard does not direct manufacturers to use particular flame retardants. It’s a flame test only. It also exempts items believed to be of little fire risk from labeling requirements. For residential upholstery, it calls for a smoldering test only standard; addresses the upholstery cover fabric; tests the interactions of components of upholstered furniture; and adheres to testing standards of the American Society for Testing and Materials International (ASTM).
Tonya Blood, chief of California’s Bureau of Electronic and Appliance Repair, Home Furnishings and Insulation, is responsible for overseeing revisions to TB 117. She presented the revised state rule at the AHFA gathering.
“Health and safety relates to the workers in your plants and factories as well,” Blood told the AHFA gathering. “I do not test for chemicals. That is not my or my bureau’s function. We test for flammability alone. … If you want to use other products or other technology, we want to make sure our standard is flexible enough for you to do that.”
The new California standard also acknowledges the role that cover fabrics play relative to filler material such as foam in fire behavior with upholstered furniture. Why ASTM standards?
ASTM “has broad stakeholder participation … and it’s a consensus-based standard,” Blood said. “The test methods are reproducible, reliable and widely practiced.”
California work also found smoking is a huge problem in furniture-related fires. Blood cited Department of Homeland Security research showing that the fatality rate was more than seven times greater in smoking-related residential fires than non-smoking-related residential fire; and that the National Fire Protection Association found smoking materials remain the leading cause and the greatest risk factor of upholstered furniture fires and losses today.
In California, of 50 deaths related to upholstered furniture fires annually, 44 are smoking-related.
Other impetuses to the changes in TB-117:
• A Consumer Product Safety Commission study found that flame retardant treated foam actually increases the damage to cover fabrics from a smoldering cigarette relative to untreated foam.
• A CPSC study found there is no significant difference between the flame retardant foams formulated to pass TB 117 and untreated foams.
• Upholstery cover fabrics play a more important role in fire behavior performance than filling materials per a CPSC study.
• Research confirmed that when the cover fabrics were changed to less smolder-prone fabrics, smoldering resistance of the mock-up assembly significantly improved.
The new standard addresses testing materials used including standard polyurethane foam, where it narrowed the density range of the foam; specified more properties of the foam; and selected higher density foam for testing, which screens out the most smolder prone fabrics or weak barriers.
For cigarettes as an ignition source, the new standard specifies the properties and the ignition strength; reduces potential for variable performance; and allows manufacturers to procure material from various vendors.
Type II tests specify a more smolder prone fabric for a more rigorous test of the barrier material.
The proposed new standard was published Feb. 13, which opened the floor for written comments. (Written comments should go to TB117comments@dca.ca.gov by e-mail; or by mail to BEARHFTI, 4244 S. Market St., Sacramento, Calif. 95834). A public hearing is set for the changes on March 26, and adoption should take place this fall. By July 1 next year, all upholstery manufactured for sale in the state of California must be in compliance.
For inclusion in the public record and consideration in the revision of TB 117, comments must be received in writing.
“Get comments in in time for review so you can perhaps impact changes to the standard,” Blood told the AHFA gathering. “Once adopted, it’s too late to make a change.”
After the March public hearing, Blood’s bureau will spend April reviewing comments, after which it will open the revised standard to additional comment in May or June.
Blood said when it comes to enforcing TB 117, California takes about 50 sample products a month for testing—mostly from retail storefronts.
“If products are failing, we notify the manufacturer,” she said. “We’ll issue a citation, a fine, up top stopping sale of that product in California. We’ve found manufacturers are quick to want to come into compliance and address the issue.”
TALKING ABOUT THE ISSUE
AHFA assembled a stakeholder panel at its Sustainability Summit to bring further depth to the fire-retardant chemical conversation, moderated by Dr. Ana Mascarenas, policy and communications coordinator with Physicians for Social Responsibility in Los Angeles. In addition to Tonya Blood and Arlene Blum, the panel included Robert Luedeka, executive director of the Polyurethane Foam Association; Hardy Poole, vice president of regulatory and technical affairs for the National Textile Association; Don Coleman, president of the Upholstered Furniture Action Council; and Malin Nasman, product requirements and compliance specialist for Ikea North America.
How attentive are retailers in general to regulations governing the product on their floors?
“For Ikea, it’s in our DNA,” Nasman said. “I do think it’s very important for retailers to get educated because regulators go to retailers to get product for testing. Tonya (Blood), Arlene (Blum) and I are reaching out to many retailers for that reason.”
Ikea has trading offices worldwide working with around 1,000 suppliers to control product development from design to retail floor. The retailer’s product requirements and compliance group must comply with standards in the 41 countries where it does business. The group monitors laws and standards, safety and compliance and global testing requirements. Ikea owns testing labs in Sweden and Shanghai—the latter facility serves as a training center for store associates and suppliers in China.
“Our policy is to minimize or completely refrain from using harmful materials,” said Nasman, who noted that Ikea has much more control over its supply chain than most home furnishings retailers.” We’ve removed several questionable substances (from our products) before they were even regulated.
“In general, our policy is when there are regulations, we go with the strictest one.”
TB 117 already has affected Ikea, due to flame retardant chemicals required to meet the state’s flammability standard.
“TB 117 requires a special range of upholstered furniture,” Nasman said. “We could never sell that sofa in Europe” because of the chemicals.
In general, she said Ikea’s avoidance of flame retardant chemicals leads to three benefits: positive effect on environment and human health; cost savings; and increased product lifetime.
UFAC’s Coleman said TB 117 isn’t the only potential regulatory issue of which retailers should be aware.
“It’s not just the flammability issue, but also what’s inside the product,” he said. “The UFAC tag can help with that. It gives consumers information on what they’re buying.”
Luedeka of the Polyurethane Foam Association warned retailers to make sure they don’t get too comfortable after any regulatory change.
“Any time there’s a change in a safety requirement, there’s a false sense of security,” he said. When it comes to furniture flammability he stressed the “importance of separating the ignition source from the fuel source” by way of example.
TB 117 Check List
Following is a check list for your vendor
partners under revised TB 117 guidelines.
n Do I have to test or re-test any
components or materials?
No, provided the material will not cause the upholstered furniture to fail.
n How will I know if a product will pass?
Manufacturers may demonstrate this by using the results from historical data OR Use a
barrier material between the cover fabric and the foam.
n When can I manufacture furniture under the new standard?
Once the regulation is adopted (Fall 2013).
n When must I manufacture furniture under the new standard?
July 1, 2014, is the mandatory compliance date.
n How will this impact me selling my
product to retailers?
There is no sell-through provision for retailers. Retailers must purchase furniture under the new standard on or after July 1, 2014.
Prop 65 Is an Issue
Don’t Look Now, But Plaintiffs Might Be Shopping
Your California Store
In October 2011, the California Office of Environmental Health Hazard Assessment added tris (1,3-dichloro-2-propyl) phosphate (TDCPP) to its Proposition 65 list of 800-plus chemicals “known to the State to cause cancer.”
Once a chemical is listed, businesses have 12 months to comply with the Prop 65 warning requirements, and some in the furniture business are getting into trouble. Since December, nearly around 20 furnishings manufacturers selling products in California have been listed in prospective lawsuits related to Proposition 65 labeling of upholstered furniture allegedly containing the TDCPP. AHFA offered guidance (http://bit.ly/XQKCkW) on Prop 65 labeling last October, and Bill Perdue, vice president of regulatory affairs for the association, gave an update at the Charlotte event.
The California law requires any product for sale, or that might be handled in the course of manufacture and delivery, containing a product on the list to be labeled with the statement: “WARNING: This product contains a chemical known to the State of California to cause cancer, birth defects or other reproductive harm.”
“This is a notification and warning to consumers that these chemicals are in a product or workplace,” said Bill Perdue, vice president of regulatory affairs for the American Home Furnishings Alliance, at last month’s AHFA Sustainability Summit in Charlotte, N.C. “All consumer products for sale in the state of California are subject to Prop 65,” he said.
Forget CARB, forget TB 117—this is a separate issue.
“Our suggestion is that on the label, include the language that takes care of ‘cancer, birth defects or other reproductive harm,’” Perdue said. “The business must provide a clear and reasonable warning of exposure—throughout the entire supply chain.”
He advised attendees at the Charlotte meeting to make a formal communique to any of its retail customers in California and come up with a label that notifies customers prior to purchase that a product contains a chemical on the Prop 65 list; and to even label their products’ boxes so they’re protected while goods are in transit.
Stores should place appropriate signage at the entrance, and Perdue said it’s a good idea to have a “billboard” in the store along with labeling on the product itself, since a sign on the door or a poster on a wall does not suffice as a point-of-purchase warning.
“The regulation doesn’t specify where to put the label, only that the consumer can see it prior to purchase,” he added.
A big problem for retailers is that ordinary customers aren’t necessarily the ones bringing attention to the labeling requirements. “Professional” plaintiffs are hiring people to purchase products, say an inexpensive ottoman, and testing it for TDCPP. Fighting such cases can be expensive.
The choice to fighting is to settle, either alone or with a group of businesses facing the same complaint.
“We’re told this is now a cost of doing business in the state of California,” Perdue said.
He added that Prop 65 applies to retailers selling goods over the Internet to customers in California: “Put the label on the Web site’s home page, or have it pop up when they type in a California ZIP code.”