Retail Industry Trade Regulation and Environmental Law
California Enacts New Ban on the Use of Flame Retardants, Effective January 1, 2020
By Alexis J. Morris and Jon-Erik W. Magnus
California recently enacted a sweeping ban on the use of flame retardants in certain consumer products. Codified at California Business and Professions Code sections 19100 – 19104, AB 2998 prohibits the manufacture, distribution, and sale of children’s products, specified mattresses and mattress components, and upholstered and reupholstered furniture that contain specific flame retardant chemicals in excess of 1,000 parts per million (ppm). Additionally, AB 2998 authorizes the Bureau of Electronic and Appliance Repair, Home Furnishings, and Thermal Insulation (the “BEARHFTI”), a division of California’s Department of Consumer Affairs, to enforce the new law through product testing and the assessment of fines.
AB 2998 is relatively straightforward in terms of the large number of products (children’s products, mattresses and furniture products) included within its scope. However, the interpretation of AB 2998 becomes more difficult with respect to the identification of chemicals regulated by the statute. The statute does not identify by name all of the regulated chemicals, instead referencing classes of chemicals and chemicals listed elsewhere. Once a chemical is identified, product testing then will be required to determine if the chemical violates the statute’s 1,000 ppm prohibition.
Manufacturers that continue to use flame retardant chemicals have limited time to assess their products for future compliance given production lead times and supply chain demands. While the statute’s prohibitions do not take effect until January 1, 2020, potentially impacted entities should start the process of ensuring that their products are compliant now. The list of implicated chemicals is expansive and the presence of a prohibited chemical in excess of the 1,000 ppm limit may require new sourcing or product reformulation. Industry members must also stay apprised of other requirements on the state, local and national level regulating the use of flame retardants in consumer products.
AB 2998 regulates three types of products: (1) “juvenile products”; (2) mattresses; and (3) upholstered furniture. “Juvenile products” are described, expansively, including products for home use by children under twelve years of age. Juvenile products include items such as booster seats, bassinets, changing pads, high chairs, nursing pads, playpen side pads, children’s nap pads and strollers. Specifically exempted from the definition of juvenile products are products used outside of the home, including those used in cars, watercraft, airplanes and subject to federal regulation, or subject to a flammability standard for furniture in a public setting.
Under AB 2998, the definition of “mattress” includes adult and youth mattresses, crib and portable crib mattresses, futons and convertible furniture that include a mattress element. Notably, AB 2998 does not apply to thread or fiber when used for stitching mattress components and only applies to the foam components used in adult mattresses.
Finally, AB 2998 regulates upholstered furniture which encapsulates just about any type of furniture built around a frame with a fabric cover and resilient fill materials (padding).
To determine if a flame retardant chemical is subject to the new law, a two-part inquiry is required. The first inquiry is fairly straightforward: was the chemical added to the product for fire-resistive purposes? This “functional use” inquiry includes chemicals used in combination with other chemicals for the purpose of resisting or inhibiting the spread fire.
The second inquiry is a bit more cumbersome, requiring that the chemical (added to the product for fire-resistive purposes) fall within one of three designations: (i) within a class of chemicals generally described as “halogenated,” “organophosphorus,” “organonitrogen,” or “nanoscale”; (ii) a “designated chemical” as defined by California’s Environmental Contaminant Biomonitoring Program; or (iii) a chemical listed on the Washington Department of Ecology’s Chemicals of High Concern to Children list as of January 1, 2019, and that is identified as a flame retardant or synergist to a flame retardant as part of the rationale for the chemical’s listing.
Manufacturers will need to identify every chemical added to a product for flame retardant purposes and then cross-reference these constituents against the classes of chemicals banned by AB 2998, “designated chemicals” identified by California’s Environmental Contaminant Biomonitoring Program and Washington’s Department of Ecology’s Chemicals of High Concern to Children list. If this process identifies a regulated flame retardant, the final step in an AB 2998 assessment is to ensure that the subject chemical does not appear in the product in excess of 1,000 ppm. With regard to this last step, while formulation analysis may provide insight to the levels of a flame retardant in a product, enforcement of the statute is based on product testing. Accordingly, there is no “safe harbor” for violations that might occur as an unexpected result of the manufacturing process.
Oversight and Enforcement
AB 2998 vests the BEARHFTI with specific oversight and enforcement powers. The new law requires the BEARHFTI to oversee a program of product testing. The BEARHFTI has discretionary authority to assess fines against manufacturers where testing reveals violations of the standards contained in AB 2998 – the presence of a banned chemical in excess of 1,000 ppm. A penalty will only accrue against a retailer or distributor if a retailer or distributor continues to sell a product after the BEARHFTI has posted a notice of violation (“NOV”) on its website for a specific product. To this end, AB 2998 requires that the BEARHFTI post NOVs and establish a process to keep interested parties apprised of NOVs.
The statute’s penalty calculation guidelines require a graduated penalty. Repeat offenses will generate a larger fine. A first-time violation will result in a fine of between $1,000 and $2,500 while a penalty after multiple violations can result in a fine of between $7,500 and $10,000.
The statute also requires some self-policing. The International Sleep Products Association (“ISPA”), a trade organization representing the mattress industry, must conduct surveys reporting on the use of flame retardant chemicals in mattresses and mattress components. Mattress producers registered with the BEARHFTI are required under the new law to respond to ISPA’s surveys.
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