Key Flame Retardant Law is About to Change – Updated

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Flame Retardants

The State of California has recently changed an obscure part of its flame retardant law that affect the health and safety of everyone in the United States, although it will not begin to have a positive effect until later this decade or into the next.  Read on for the full story.  Since this post was initially published, the State of California issued final regulations.  This version brings you fully up to date.

Editor’s note – this guest post on flame retardant chemicals was written by my husband, Bill Webb, who is an attorney with his own firm in San Francisco, California.

Flame retardants are used in a number of household and children’s items, most notably couches and love seats, exposing millions of people to harmful chemicals.  The flame retardants are used in order to comply with a well-intentioned but outdated law that lawmakers have been unable to change.  This law is a regulation in only one state, but for reasons explained below, it affects the whole country, and has resulted in the use of large quantities of dangerous chemicals in the vast majority of American households.  Fortunately, it appears that the law is about to change, thanks to California’s Governor Jerry Brown.  Hopefully, this will lead to a significant decrease in the use of dangerous flame retardant chemicals.  You may want to start saving for that new couch now.  Here is what happened.

The background

In 1975, California was concerned about fires injuring and killing people and children.  So, in good faith and believing it was doing the right thing, California adopted a law and an implementing regulation that required that certain furniture and children’s products comply with flammability standards set forth in a document called Technical Bulletin 117 (TB 117).

Specifically, California Business and Professional Code section 19161 requires “all seating furniture sold or offered for sale … in this state . . . [to] be fire retardant.”  Once a law is passed by the legislature, the executive branch often needs to pass regulations that implement the law.  In this case, California implemented section 19161 by requiring all filling materials contained in “seating furniture” – i.e. couches, love seats and chairs – to meet flammability standards set forth in TB 117.

Essentially, TB 117 ensures that furniture meets flame retardant standards by requiring that fill material in seating furniture withstand a small open flame for at least twelve-seconds without catching fire.  Note that the law does not require the use of flame retardants — it merely requires certain materials — mostly couch cushions — to be able to withstand a small open flame for twelve-seconds without bursting into flame.  This is certainly a laudable goal, but like many well-intentioned acts, it had unintended consequences.

Unintended consequences

In order to comply with TB 117, manufacturers used certain chemicals known as Polybrominated Diphenyl Ethers (“PDBEs”) as flame retardants – up to two pounds worth of flame retardant chemicals for each sofa.

The effect of the law spread well beyond California borders

Because California is the twelfth largest economy in the world (i.e. it is a larger marketplace than most countries), furniture and other manufacturers wishing to sell their products in California had to manufacture their products to California’s flammability standard.  Since it is not cost efficient to manufacture the same item to two or more different standards, and since California’s standards are the most stringent in the country, this means that thanks to California, most furniture and children’s products sold in the U.S. are manufactured to the California standard, including the use of flame retardant PDBEs.

Harmful flame retardants

Until 2004, furniture manufacturers usually complied with TB 117 by adding the flame retardant pentabromodiphenyl ether (“pentaBDE”) to the foam fill material in seating furniture.  However, due to mounting health concerns about pentaBDE, and increased state legislative efforts to ban the flame retardant, its manufacturer voluntarily ceased production in 2004 (a year after California banned it and 8 other states and the European Union followed suit).   Since then, TDCPP and Firemaster 550 have been the primary flame retardants used by furniture manufacturers to comply with TB 117.  TDCPP was also recently found to be prevalent in a wide variety of children’s products, such as nursing pillows, changing pads, and car seats.

The problem is that after the law passed and the regulation was issued, these flame retardants have been studied, and scientists have raised concerns about their toxicity.  The U.S. Environmental Protection Agency states:

EPA is concerned that certain PBDE congeners are persistent, bioaccumulative, and toxic to both humans and the environment. The critical endpoint of concern for human health is neurobehavioral effects. Various PBDEs have also been studied for ecotoxicity in mammals, birds, fish, and invertebrates. In some cases, current levels of exposure for wildlife may be at or near adverse effect levels. http://www.epa.gov/oppt/existingchemicals/pubs/actionplans/pbde.html

Californians exhibit higher levels of flame retardant chemicals in their bodies than those living elsewhere

Tests have shown that people living in California have higher levels of PDBEs than people living elsewhere; studies were done comparing Californians with people from Massachusetts, Ohio and Mexico, and those in California had higher concentrations of PDBEs in them, leading researchers to believe that TB 117 may be implicated.

The law probably does not really help prevent fires

Ironically, the flame retardants do not prevent the materials from burning, but only allow the materials from failing the flammability tests.  In an actual fire, the furniture and materials will ultimately burn, releasing potentially toxic smoke into the air.

Attempts to change the fire retardant law have been stymied by chemical manufacturers

Thus, the rule of unintended consequences has reigned supreme.  As a result, Californians have tried to change the law, but, sadly, have been unable to do so.  Fire fighters teamed up with environmentalists and other citizen groups in order to change the law.  Even furniture manufacturers were in agreement the law needed to be changed.  Fire fighters were very concerned that these flame retardants might make the already toxic smoke they breathe while fighting fires even more toxic, leading to higher rates of cancer in fire fighters than in the non-firefighting population.  And other groups were alarmed with the increased levels of PDBEs in Californians.

Starting in 2008, California State Senator Mark Leno introduced legislation many times to overturn California Business and Professional Code section 19161, but his efforts were rebuffed each time he did so, because the chemical industry lobby is so strong.  The industry even hired a New York public relations firm that had advised the tobacco industry in connection with regulators’ efforts to compel the tobacco companies to create cigarettes that would extinguish themselves if left unattended.  In connection with those efforts, the public relations firm suggested the chemical companies create an organization called “Citizens for Fire Safety.”  You can view Senator Leno talking about his efforts as of November 2012 here.  In this video, he describes that when the chemical manufacturers needed help to keep TB 117 in place, they turned to the same public relations firm, and received the same advice — utilize an organization called “Citizens for Fire Safety” to testify against the repeal of any flame retardant laws.

Interestingly, the Chicago Tribune figured out what was going on and published a very telling four-part expose of the group and its efforts.  It is well worth the read, and can be found here.

After the Chicago Tribune pieces ran in May 2012, Citizens for Fire Safety disbanded.  Its website has been taken down and replaced by a notice, essentially admitting that the group had been organized by the three largest chemical companies, and that their efforts were going to be carried on under a different name.

Unable to change the flame retardant statute, attention has now been turned to its implementing regulation and TB 117

Since the California legislature has been unable to repeal Business and Professional Code section 19161, Governor Jerry Brown has seen to it that its implementing regulation and TB 117 receive scrutiny.

On February 8, 2013, California’s Department of Consumer Affairs, Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation (the “Bureau”) announced it was considering ways of changing the way TB 117 would help ensure that furniture is fire retardant.

The Bureau is the organization that had implemented TB 117 in the first place.  As part of the executive branch, it falls under the influence of Governor Jerry Brown, and not the California legislature, which has been unable to change the law.

Accordingly, the Bureau announced it was considering revising TB 117.  The revised proposed regulation is called “TB 117-2013.”  It has not yet become law.

Essentially, the Bureau proposes to do so by amending the manner in which flammability is measured.  It does so by doing away with the twelve-second open flame test referenced above in favor of a “smolder-only” test, which would be much easier for manufacturers to meet without adding any flame retardant chemicals.  This new test is based on one promulgated by an independent and very highly regarded third-party known as ASTM International (formerly known as the American Society for Testing and Materials).

The Bureau stated that it would (as is customary when a regulator announces regulations) accept comments from the public, which were held open until March 26, 2013.  For anyone who is interested in seeing what a “public comment” looks like when made by a non-profit organization, look here for Earth Justice’s comment.

On March 26, 2013, the Bureau held a hearing.  The hearing is on YouTube, and you can view it here if you’d like.

Since the hearing, we haven’t heard much, but industry experts are expecting a final rule to be handed down sometime in 2013.  We will report back when that happens.

Update

Since the above was first published, the State of California listened to concerns by manufacturers regarding the timing of the change in the law.  Specifically, manufacturers were concerned that they would have trouble making the switch by the proposed July 1, 2014 deadline.  They therefore filed comments during the period of time that the Brown administration had announced for the public to make comments on the changes in the law.  California listened to these comments, and delayed the effective date of the changes from July 1, 2014 to January 1, 2015.  This extension is designed to provide businesses “the additional time needed to deplete current supplies (of products made with the chemicals, as well as the chemicals themselves) and effectuate the new regulatory changes,” according to a memorandum published by the California Department of Consumer Affairs.

Editor’s Note: to contact Attorney Bill Webb, please visit http://www.webblegalgroup.com or e-mail info@webblegalgroup.com.

Update: for specific flame retardant-free furniture recommendations, read my “Products I Like – Flame Retardant-Free Furniture” post.

5 Responses

  1. When Cal 117 was originally put in place, there was no thought or imagination given to the fact that the flame retardants used would leave the foam and effect people and the environment. Although scientist knew that the effect of putting the fame retardant into foams ” wore off with time”, they didn’t question where that material “ended up”. Of course, now we know!

    There has been a recent break through in the area of Green Chemistry, which is proving to solve this problem of flame retardants fleeing the foam. The amount flame suppressants needed in the green technology is reduced by 80% but more importantly, this new class of flame suppressants being used, are permanently linked into the foam polymer. Advanced scientific tests can find no final trace of these new materials in the foams, the only thing remaining is their very positive effect on the resistance of the foam to ignition from cigarette and match heat sources. These foams are now gradually entering the US market. “Green to the rescue, again?!!!”

  2. […] community activists as they fight for transparency around a 1975 law. That piece of legislation, California Technical Bulletin 117 (TB-117), was enacted to eradicate fires in the home caused by cigarettes. What ensued were health […]

  3. Chris Serra

    Thanks for the update on this situation that California has imposed on the entire country. It is unconscionable that the State of California continues with resistance against changing this law given all of the known ill effects to everyone who purchases furniture with foam in it. Requiring the use of harmful chemicals in a product seems obviously counter to many other laws in the State that attempt to do the opposite, quite a contradiction in behavior. I hope that the change can gain support more quickly than you have outlined in your update and can be more meaningful such as including a ban on these chemicals when used in a fashion that can harm people.

  4. unhombrealado

    It is unfortunate that the way the legislation has changed will still enable current manufacturers to continue using the same fire retardant chemicals. hopefully, we will see added competition from a lower entry barrier and more eco (and economically) friendly furniture companies.

  5. Thank you so much! As a college student,this provided great research as well as links to environmentally safe products

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