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AB-2998 Juvenile products: flame retardant materials. (2017-2018)

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Date Published: 04/03/2018 09:00 PM
AB2998:v98#DOCUMENT

Amended  IN  Assembly  April 03, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2998


Introduced by Assembly Member Bloom
(Principal coauthor: Assembly Member Kalra)
(Coauthor: Assembly Member Mark Stone)

February 16, 2018


An act to add Article 5.5. 5.5 (commencing with Section 19100) to Chapter 3 of Division 8 of the Business and Professions Code, relating to business.


LEGISLATIVE COUNSEL'S DIGEST


AB 2998, as amended, Bloom. Juvenile products: flame retardant materials.
Existing law, the Home Furnishings and Thermal Insulation Act, a violation of which is a misdemeanor, provides for the regulation of persons engaged in businesses relating to upholstered furniture, bedding and filling materials, and insulation, and provides for the enforcement and administration of those provisions by a chief under the Director of Consumer Affairs. Existing law authorizes the bureau to establish grades, specifications, and tolerances for materials used in upholstered furniture and bedding or filling materials and requires a manufacturer of upholstered furniture to indicate whether a product contains flame retardant chemicals.
This bill bill, on and after January 1, 2020, would prohibit an establishment a person, including a manufacturer, from selling or distributing in commerce in this state new, not previously owned juvenile products, mattresses, or upholstered or reupholstered furniture containing more than 0.1% of a flame retardant chemical or more than 0.1% of a mixture containing a flame retardant chemical. furniture that contains, or a constituent component of which contains, flame retardant chemicals at levels above 1,000 parts per million, except as specified, and would prohibit a custom upholsterer from, among other things, repairing upholstered furniture or reupholstered furniture using components that contain flame retardant chemicals at levels above 1,000 parts per million, except as specified. The bill would authorize the director to adopt regulations and rules to implement and enforce the act’s provisions. The bill would require the bureau to enforce and ensure compliance with these requirements and would require the bureau to provide the Department of Toxic Substances Control with a selection of samples from products regulated by the act’s provisions and would authorize the bureau to assess fines against manufacturers for a violation of the act’s provisions, as specified. The bill would require the bureau to receive complaints from consumers concerning these regulated products that are sold in this state. The bill would define various terms for these purposes. The bill would also make various findings and declarations in this regard.
Because a violation of the bill’s provisions would be a misdemeanor, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

The Legislature finds and declares all of the following:

(a)The Bureau of Electronic and Appliance Repair, Home Furnishings, and Thermal Insulation (the bureau) is charged with developing state flammability standards for adoption via regulation. Since the adoption by the bureau of Technical Bulletin 117 (TB-117) in 1975, which sets forth flammability standards, flame retardant chemicals have been routinely used in upholstered furniture and certain juvenile products to meet TB-117’s open-flame standard. In 2013, California updated its flammability standard with the adoption of Technical Bulletin 117-2013 (TB 117-2013). Flame retardant chemicals were commonly used to meet TB-117. By contrast, compliance with TB 117-2013 is widely being achieved without the use of flame retardant chemicals. TB 117-2013 also exempts certain juvenile products from meeting its flammability standard.

(b)Scientists have found that organohalogens and some organophosphorous flame retardant chemicals exhibit one or more of the key characteristics of a class of synthetic organic compounds commonly referred to as Persistent Organic Pollutants (POPs), in that they are bioaccumulative, persistent, capable of long-range transport, or toxic.

(c)A study led by Duke University published in 2012 of residential couches purchased in the United States between 1985 and 2010 revealed that the foam inside 85 percent of couches tested contained flame-retardant chemicals.

(d)Another Duke University-led study published in 2011 revealed that foam in 80 percent of tested baby products contained toxic or potentially harmful flame retardant chemicals, and that the most commonly occurring flame retardant in these products was tris(1,3-dichloroisopropyl) phosphate (TDCPP). Furthermore, testing by the State of Washington’s Department of Ecology published in the department’s report to the Washington State Legislature and most recently updated in 2015, uncovered a variety of flame retardants in children’s products and upholstered furniture, including six halogenated flame retardants. A more recent Duke University study published in 2015 found a correlation between infants’ exposure to juvenile products containing added flame retardants, and the level of TDCPP, one type of halogenated flame retardant chemical, in the infants’ bodies.

(e)Inhalation and ingestion of indoor dust is a common route of human exposure to flame retardant chemicals. Studies have shown that indoor dust contains anywhere from 1.5 to 50 times greater concentration of flame retardant chemicals than the outdoor environment. Given that humans spend 90 percent of their time indoors, human exposure to flame retardants can be significant.

(f)A 2010 National Health and Nutrition Examination Survey conducted by the National Center for Health Statistics detected polybrominated diphenyl ether (PBDE) flame retardants in the blood of 97 percent of those surveyed. Children living in California have some of the highest documented blood PBDE concentrations of any population studied. A 2014 University of California, Berkeley study found flame retardants in the dust of 100 percent of the California early childhood education facilities studied. In addition, TDCPP levels in 51 percent of the facilities studied exceeded Proposition 65 guidelines for carcinogens.

(g)Scientists recognize the urgency to reduce the exposure of vulnerable populations, particularly young children, to flame retardant chemicals. A consensus statement issued by the Project Targeting Environmental Neuro-Developmental Risks (Project TENDR) found that PBDEs are associated with neurodevelopmental disorders in children.

(h)TDCPP, tris(2-chloroethyl) phosphate (TCEP), and Tris(2,3-dibromopropyl) phosphate (TDBPP) have been linked to cancer, as well as repercussions on both reproductive health and embryo development. In addition, these chemicals are listed on California’s Proposition 65 list of chemicals known to cause cancer, birth defects, or other reproductive harm.

(i)In 2017, the United States Consumer Product Safety Commission issued a guidance document based on the overwhelming scientific evidence presented to the commission to alert the public to serious concerns about the toxicity of organohalogen flame retardants added to children’s products, furniture, mattresses and plastic casings surrounding electronics. The commission requested that manufacturers eliminate the use of these chemicals in their products. It also recommended that retailers obtain assurance from manufacturers that their products do not contain these chemicals, and that consumers, especially those who are pregnant or with young children, avoid products containing these chemicals.

(j)Effective July 1, 2017, California’s Department of Toxic Substances Control identified children’s foam-padded sleeping products containing TDCPP or TCEP as priority products for evaluation in connection with health hazards.

(k)Firefighters are at particular risk for exposure to flame retardants via inhalation and ingestion of smoke, dust, and debris from household products and insulation containing flame retardants. Elevated rates of cancer have been reported among firefighters; and studies have found firefighters’ PBDE blood levels to be three times higher than levels in other Americans, and twice as high as levels among California residents.

(l)At least one study has demonstrated a correlation between household dust containing flame retardants and elevated levels of flame retardants in house cats’ blood. These elevated levels of flame retardants have also been linked to higher incidence of feline hyperthyroidism.

(m)Flame retardant chemicals have been detected in the atmosphere, seawater, freshwater, sediments, and a variety of wildlife. Because they resist degradation and are capable of being transported long distances, flame retardant chemicals have been found in remote regions such as the Arctic and in deep sea life.

(n)Consumer products containing flame retardants may be discarded at landfills at the end of their useful lives. Flame retardants in landfills have been shown to contaminate landfill leachate and biosolids, and levels of flame retardants are higher in people and wildlife living near landfills.

(o)The federal government has failed to adequately regulate the use of flame retardant chemicals. In 2016, Congress passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which adds to the responsibilities of the United States Environmental Protection Agency (EPA) under the federal Toxic Substances Control Act (15 U.S.C. Sec. 2601 et seq.) to assess and regulate chemicals. The EPA has yet to restrict use of any flame retardant chemicals under this enactment.

(p)In the absence of federal action, California and other states have taken steps to limit or ban the use of certain flame retardant chemicals.

(q)The Legislature enacted Section 108922 of the Health and Safety Code, which banned the commercial manufacture and distribution of products on or after June 1, 2006 that contain over one-tenth of one percent of either of two brominated flame retardant chemicals, octa- and penta-brominated diphenyl ethers. However, many other flame retardant chemicals, such as known carcinogens TCEP and TDCPP, and highly persistent HBCD, remain in use. One 2016 meta-analysis found 47 unique non-PBDE flame retardant chemicals in indoor house dust. Three of these chemicals were found in over 90 percent of samples, indicating that flame retardants are ubiquitous in indoor environments.

(r)A United States Consumer Product Safety Commission study found that there was no significant difference in fire safety between foams with added flame retardant chemicals formulated to pass TB-117, and foams not containing any flame retardant chemicals.

(s)The bureau currently exempts the following types of juvenile product from state flammability standards: bassinets, highchair pads, nursing pads, booster seats, infant bouncers, nursing pillows, car seats, infant carriers, playpen side pads, changing pads, infant seats, playards, floor play mats, infant swings, portable hook-on chairs, highchairs, infant walkers, and strollers.

(t)TB 117-2013 sets forth flammability standards, but does not govern the use of flame retardant chemicals. Some product manufacturers thus still opt to use flame retardant chemicals in upholstered furniture and juvenile products, even though these chemicals are not necessary for compliance with TB 117-2013.

(u)In 2014, the Legislative enacted Senate Bill 1019, requiring manufacturers of product items covered by TB 117-2013 to affix a label to each item disclosing whether the item contains or does not contain flame retardant chemicals.

SECTION 1.

 The Legislature finds and declares all of the following:
(a) The State of California has found that flame retardant chemicals are not needed to provide fire safety. The Bureau of Electronic and Appliance Repair, Home Furnishings, and Thermal Insulation (hereafter bureau) is charged with developing state flammability standards for adoption via regulation. From 1975 to 2013, flame retardant chemicals were commonly used in upholstered furniture to meet flammability standard, Technical Bulletin 117 (TB-117). In 2013, California updated its flammability standard with the adoption of Technical Bulletin 117-2013 (TB 117-2 but it is 520 013). Compliance with TB 117-2013 is widely being achieved without the use of flame retardant chemicals. However, some product manufacturers still use flame retardant chemicals in upholstered furniture and juvenile products, even though these chemicals are not necessary for fire safety or compliance with TB 117-2013.
(b) In 2013, the bureau exempted 18 juvenile products from having to meet any flammability standard because the bureau determined that these products “are not prone to cause or sustain a serious fire if ignited.” The following types of juvenile products that are exempted from state flammability standards include bassinets, highchair pads, nursing pads, booster seats, infant bouncers, nursing pillows, car seats, infant carriers, playpen side pads, changing pads, infant seats, playards, floor play mats, infant swings, portable hook-on chairs, highchairs, infant walkers, and strollers.
(c) In 2017, the United States Consumer Product Safety Commission issued a guidance document based on the overwhelming scientific evidence presented to the commission to alert the public to serious concerns about the toxicity of organohalogen flame retardants added to children’s products, furniture, mattresses, and plastic casings surrounding electronics. The commission requested that manufacturers eliminate the use of these chemicals in their products. It also recommended that retailers obtain assurance from manufacturers that their products do not contain these chemicals and that consumers, especially those who are pregnant or with young children, avoid products containing these chemicals.
(d) Scientists have found that many of the flame retardant chemicals commonly used in furniture exhibit one or more of the key characteristics of a class of synthetic chemicals commonly referred to as Persistent Organic Pollutants (POPs). These chemicals accumulate in our bodies and in the environment; persist in the environment for long periods of time; are capable of long-range transport, and are toxic to humans and animals. Flame retardant chemicals have been found in remote regions such as the Arctic and in deep sea life. Flame retardant chemicals have been detected in the atmosphere, seawater, freshwater, sediments, and a variety of wildlife.
(e) Firefighters are at particular risk from flame retardant chemicals. Numerous studies document increased cancer rates and deaths amongst firefighters due to occupational exposures. The cancers that are elevated in firefighters include four types (multiple myeloma, non-Hodgkin’s lymphoma, prostate, and testicular) that are potentially related to exposure to cancer-causing chemicals called dioxins. Dioxins are formed when products burn in a fire and the presence of flame retardant chemicals can result in more toxic smoke containing dioxins and furans to which firefighters are exposed. Studies have found firefighters’ blood levels of certain flame retardants to be three times higher than levels in other Americans, and twice as high as levels among California residents.
(f) Children living in California have some of the highest documented blood concentrations of certain flame retardant chemicals compared to other children in the United States. Scientists recognize the urgency to reduce the exposure of vulnerable populations, particularly young children, to flame retardant chemicals. A consensus statement issued by the Project Targeting Environmental Neuro-Developmental Risks (Project TENDR) found that certain flame retardant chemicals are associated with loss of IQ, attention problems, and other developmental problems in children.
(g) Flame retardant chemicals migrate out of these products over the lifetime of the product and end up in household dust. Inhalation and ingestion of indoor dust, often from hand to mouth behaviors, is a common route of human exposure to flame retardant chemicals. Studies have shown that indoor dust contains anywhere from 1.5 to 50 times greater concentration of flame retardant chemicals than the outdoor environment. Given that humans spend 90 percent of their time indoors, human exposure to flame retardant chemicals can be significant. Children have been found to have three to five times higher levels of certain flame retardant chemicals than their mothers.
(h) The federal government has failed to adequately regulate the use of flame retardant chemicals. In 2016, Congress passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Public Law 114-182), which adds to the responsibilities of the United States Environmental Protection Agency (EPA) under the federal Toxic Substances Control Act (15 U.S.C. Sec. 2601 et seq.) to assess and regulate chemicals. The EPA has yet to restrict use of any flame retardant chemicals under this enactment.
(i) In the absence of federal action, California and other states have taken steps to limit or ban the use of certain flame retardant chemicals. In 2017, the State of Maine passed legislation that prohibits the sale of residential upholstered furniture containing flame retardants. In fall of 2017, the City and County of San Francisco passed an ordinance that prohibits the sale of upholstered and reupholstered furniture as well as children’s products containing flame retardant chemicals. The State of Rhode Island also passed legislation that will ban the sale of furniture or residential upholstered bedding with any added organohalogen flame retardants.
(j) Studies demonstrate that mattresses contribute significantly to the flame retardant levels in indoor air and dust. Studies also find that removing flame-retarded products from indoor environments reduces air and dust contamination. Therefore, decreasing the amount of flame-retarded products in buildings would result in decreased human exposures.
(k) While many categories of products and materials that are not covered by this act contain flame retardant chemicals, which pose health risks, as the United States Consumer Product Safety Commission has recognized, this act takes an incremental approach to addressing these health risks and focuses on those categories of products and materials that the bureau has prior experience in addressing the presence of flame retardant chemicals.

SEC. 2.

 Article 5.5 (commencing with Section 19100) is added to Chapter 3 of Division 8 of the Business and Professions Code, to read:
Article  5.5. Juvenile Products

19100.
 For the purposes of this article, the following definitions apply:

(a)“Establishment” means any store, stand, booth, concession, or any other business that sells juvenile products, mattresses, reupholstered furniture, or upholstered furniture, or is in the business of reupholstering residential furniture in California.

(a) “Consumer price index” has the same meaning as in subdivision (a) of Section 19094.
(b) “Flame retardant chemical” means any chemical or chemical compound for which a functional use is to resist or inhibit the spread of fire. Flame retardant chemicals include, but are not limited to, halogenated, phosphorous based, nitrogen based, and nanoscale flame retardants; flame retardant chemicals listed as “designated chemicals” pursuant to Section 105440 of the Health and Safety Code, and any chemical or chemical compound for which the words “flame retardant” is required to appear on the substance safety data sheet pursuant to Section 1910.1200(g) of Title 29 of Code of Federal Regulations. has the same meaning as in subdivision (a) of Section 19094.
(c) “Juvenile product” means a new, not previously owned product subject to this article chapter and designed for residential use by infants and children under 12 years of age, including, but not limited to, a bassinet, booster seat, changing pad, floor play mat, highchair, highchair pad, infant bouncer, infant carrier, infant seat, infant swing, infant walker, nursing pad, nursing pillow, playpen side pad, playard, portable hook-on chair, stroller, and children’s nap mat.
(d) Juvenile products do not include any of the following:
(1) Products that are not primarily intended for use in the home, such as products or components for motor vehicles, watercraft, aircraft, or other vehicles.
(2) Products subject to Part 571 of Title 49 of the Code of Federal Regulations regarding parts and products used in vehicles and aircraft.

(3)Products required to meet federal flammability standards in Parts 1632 and 1633 of Title 16 of the Code of Federal Regulationsregarding mattress products.

(4)

(3) Products required to meet state flammability standards in Technical Bulletin 133, entitled “Flammability Test Procedure for Seating Furniture for Use in Public Occupancies.”
(4) Consumer electronic products that do not fall under the bureau’s jurisdiction for flammability standards.
(e) “Mattress” has the same definition as that term is defined in Section 1632.1 of Title 16 of the Code of Federal Regulations.
(f) “Reupholstered furniture” means furniture whose original fabric, padding, decking, barrier material, foam, or other resilient filling has been replaced by an establishment, a custom upholsterer, that has not been sold since the time of the replacement, and that is required to meet the flammability standards set forth in Technical Bulletin 117-2013 entitled “Requirements, Test Procedure and Apparatus for Testing the Smolder Resistance of Materials Used in Upholstered Furniture.” Reupholstered Furniture shall not include products required to meet Technical Bulletin 133.

(g)“Sell” means any of the following undertaken by an establishment: sell, offer for sale, transfer possession for compensation, trade, rent, lease, or otherwise give or distribute, or an intent to conduct any of these activities.

(h)

(g) “Upholstered furniture” means new, not previously owned seating made with soft materials, including, but not limited to, fabric, padding, decking, barrier material, foam, or other resilient filling, that is required to meet the flammability standards set forth in Technical Bulletin 117-2013 entitled “Requirements, Test Procedure and Apparatus for Testing the Smolder Resistance of Materials Used in Upholstered Furniture.” Upholstered furniture shall not include products required to meet Technical Bulletin 133. has the same meaning as “covered products” does in subdivision (a) of Section 19094.

19101.
 (a) On or after January 1, 2020, an establishment in this state may a person, including a manufacturer, shall not sell or distribute in commerce in this state any new, not previously owned juvenile products, mattresses, reupholstered furniture, or upholstered furniture containing more than 0.1 percent of a flame retardant chemical or containing more than 0.1 percent of a mixture that includes a flame retardant chemical. that contains, or a constituent component of which contains, flame retardant chemicals at levels above 1,000 parts per million.
(b) On or after January 1, 2020, a custom upholsterer shall not repair, reupholster, recover, restore, or renew upholstered furniture or reupholstered furniture using components that contain flame retardant chemicals at levels above 1,000 parts per million.

(b)

(c) The prohibition in subdivision (b) does subdivisions (a) and (b) do not apply to electrical either of the following:
(1) Electroniccomponents of juvenile products, mattresses, reupholstered furniture, or upholstered furniture. furniture, or any associated casing for those electronic components.
(2) Upholstered or reupholstered furniture components other than those identified in paragraph (1) of subdivision (a) of Section 19094.

19102.
 The director may adopt regulations and rules necessary or appropriate for the implementation and enforcement of this article.

19103.
 (a) The bureau shall enforce and ensure compliance with Section 19101.
(b) (1) The bureau shall provide the Department of Toxic Substances Control with a selection of samples from products regulated under this article to test for compliance with Section 19101. The bureau shall select samples based on consultation with the Department of Toxic Substances Control, taking into account a range of manufacturers and types of covered products. The bureau shall integrate these testing requirements into the existing testing program described in subdivision (c) of Section 19094.
(2) (A) If the Department of Toxic Substances Control’s testing shows that any reupholstered furniture or new, not previously owned juvenile products, mattresses, or upholstered furniture is in violation of Section 19101, the bureau may assess fines for violations against manufacturers of the product for the violation.
(B) If a person continues to sell or distribute products in commerce in this state belonging to the same stock keeping unit (SKU) as products that do not comply with Section 19101, after notice of the violation is posted on the bureau’s Internet Web site, the bureau may assess fines against the person for the continued sale or distribution of those products. The bureau shall make information about any citation issued pursuant to this section available to the public on its Internet Web site, and shall develop a process for keeping interested persons informed about updates to notices of violation posted on the bureau’s Internet Web site.
(c) A fine for a violation of this section shall be assessed in accordance with the following schedule:
(1) The fine for the first violation shall be not less than one thousand dollars ($1,000), but not more than two thousand five hundred dollars ($2,500).
(2) The fine for the second violation shall be not less than two thousand five hundred dollars ($2,500), but not more than five thousand dollars ($5,000).
(3) The fine for the third violation shall be not less than five thousand dollars ($5,000), but not more than seven thousand five hundred dollars ($7,500).
(4) The fine for any subsequent violation shall be not less than seven thousand five hundred dollars ($7,500), but not more than ten thousand dollars ($10,000).
(d) In determining the amount of the fine for a violation of this section, the bureau shall consider the following factors:
(1) The nature and severity of the violation.
(2) The good or bad faith of the cited person.
(3) The history of previous violations.
(4) Evidence that the violation was willful.
(5) The extent to which the cited person or entity has cooperated with the bureau.
(e) (1) The bureau shall adjust all minimum and maximum fines imposed by this section for inflation every five years.
(2) The adjustment shall be equivalent to the percentage, if any, that the Consumer Price Index at the time of adjustment exceeds the Consumer Price Index at the time this section goes into effect. Any increase determined under this paragraph shall be rounded as follows:
(A) In multiples of ten dollars ($10) in the case of penalties less than or equal to one hundred dollars ($100).
(B) In multiples of one hundred dollars ($100) in the case of penalties greater than one hundred dollars ($100), but less than or equal to one thousand dollars ($1,000).
(C) In multiples of one thousand dollars ($1,000) in the case of penalties greater than one thousand dollars ($1,000).
(f) The bureau shall receive complaints from consumers concerning products regulated by this article sold in this state.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.