Capitol Comments

Is That a Light at the End of the Tunnel?

By Peter Mayberry and Jessica Franken | October 8, 2009

CPSC staff proposes alternate draft flammability standard for upholstered furniture

Regular readers of Capitol Comments should know that the U.S. Consumer Product Safety Commission (CPSC) has spent more than a decade developing flammability standards that would apply to all upholstered furniture sold in the U.S. It has been an issue with a very colorful and convoluted history that began in 1993 when the National Association of State Fire Marshals filed a petition with CPSC seeking national standards. Since then, CPSC staff has developed several draft standards, each of which have been generally opposed by organizations that represent the furniture manufacturing industry.

A recurring theme of the opposition is that furniture fabrics would have to be treated with fire-resistant (FR) chemicals to meet any of the standards proposed by CPSC staff, and there is little scientific data about the impact that living in a house with FR-treated fabrics for years at a time has on human health. Concern was so great, in fact, that Congress intervened by requiring that a study be conducted by the National Academy of Sciences. This study alone delayed the CPSC rule-making for several years.

But now, finally, it looks like there could be light at the end of this tunnel. Indeed, after years of data collection and behind-the-scenes discussions with numerous stakeholders, CPSC staff presented a "2007 Alternative Draft Standard" to the CPSC Commissioners on December 6, 2007 and asked for approval to issue the draft as a proposed rule in the Federal Register. If the commissioners grant the staff's request, national flammability standards for upholstered furniture could be in place by this time next year.

This issue is of major importance to the nonwovens industry because it is widely recognized that—when it comes to making upholstered furniture less flammable—the only alternative to coating outer fabric with FR chemicals is to wrap cushioning material under the outer fabric with an FR liner known as barrier fabric. And since nonwovens can be engineered to produce any level of FR protection, they are an excellent candidate for any barrier fabric needed to meet a new standard.

Alternative Draft Standard

Under the newest approach to this issue, CPSC staff is proposing that all upholstered furniture offered for sale in the U.S. fall into one of two categories: Type I or Type II.

For upholstered furniture to be classified as Type I, CPSC staff is proposing that "cover fabrics or other covering materials" be able to pass a laboratory test demonstrating that they are "smolder resistant." In this test, seating area mockups made with the cover material over a standard polyurethane foam filing (SPUF) would have to self-extinguish within 45 minutes, with no obvious signs of ignition, after a cigarette has been lodged in the crevice between the seating area and the back of the mockup. In addition, the cover fabric must demonstrate that it only allows "minimal heat" to transfer between the outer fabric and the SPUF underneath. To do this, the test requires that no more than 10% of the SPUF substrate be lost during the course of the 45 minute test.

In outlining the test method that would be used to certify that furniture is Type I, Dale Ray of the CPSC staff told the Commissioners that 85% of all fabric currently on the market should be able to pass this test with either no modifications or only slight modification.

For cover fabric that cannot pass the test or cannot be treated with FR chemicals, or if manufacturers do not want to use FR-treated cover fabrics, CPSC staff is proposing the Type II designation. Specifically, CPSC staff is proposing that Type II upholstered furniture be capable of passing a smolder-resistant test and a small open-flame ignition test based on the British flammability standard BS 5852.

As outlined by CPSC staff, compliance with Type II requirements would be demonstrated through testing in which mockups are constructed with cover fabrics placed between the cover fabric and any interior filling materials. To be designated as an acceptable barrier fabric for Type II furniture, CPSC staff is proposing the following criteria be met:

In tests of seating mockups of barriers with standard cover fabric and SPUF, complying Type II barriers would have to protect the interior foam: the mockup could not exhibit more than 1% mass loss of the SPUF substrate at the end of the 45-minute smoldering ignition test, and no more than 20% mass loss of the total mockup assembly at the end of a 45-minute open flame test.

CPSC staff further note that Type II furniture could be constructed with any cover fabrics and any interior fillings, and that the only upholstery material that needs to be qualified is the barrier fabric. Any upholstered furniture made with "non-complying" cover fabric would have to have a Type II barrier according to the CPSC staff.

To demonstrate that they meet these new standards, manufacturers and importers could rely on certificates of compliance issued by materials suppliers under the Federal Flammable Fabrics Act (FFA), and there are no periodic sampling requirements contained in the proposed standard. Manufacturers and importers would, however, "be responsible for establishing appropriate test programs to ensure compliance."

Lastly, the proposed standard calls for a requirement that every piece of upholstered furniture offered for sale in the U.S. carry a permanent label containing:
- A statement certifying compliance, and identifying the method of compliance (Type I or Type II);
- The identity of the manufacturer or importer;
- The location and date (month/year) of manufacture and
- The model and lot number of the furniture item.

In terms of cost/benefit, CPSC staff estimates that adopting these standards would add $32-57 million/year to the expense of all upholstered furniture, but would result in benefits that amount to $419-424 million/year. As the CPSC staff puts it, therefore, "projected annual net benefits to society associated with the staff's 2007 alternative draft standard would be $367-387 million per year's worth of complying furniture production."

Next Steps

Now that the CPSC staff has formally recommended that its 2007 Alternative Draft Standard be issued for comment, the two Commissioners who are currently in charge of the agency basically have two choices: they can either agree to issue a Federal Register notice seeking public comment on the proposal, or they can do nothing.

Indeed, when questioning the staff after the presentation of their proposal, CPSC Chairman Nancy Nord indicated she might not be convinced that national standards are needed. Noting that careless smoking is the overwhelming cause of house fires started by the ignition of upholstered furniture—and that 22 states have recently adopted laws requiring that only "reduced ignition propensity" cigarettes be sold within their borders – Chairman Nord questioned whether it would be more prudent to hold off further action on this issue until the effect of state-level action could be better understood.

As this article went to press, however, several key stakeholders and a knowledgeable CPSC staff member were forecasting that the Com­mission will publish a proposed rule and will do so quickly because the agency has invested too much time, money and effort in this project to abandon it now. Moreover, considering the recent Congressional attention CPSC has received with regard to the safety of imported toys and other products, some observers say a vote to take no action on the staff's recommendation could result in the removal of one or both of the existing commissioners from their positions by Congress.

For its part, INDA, Association of the Nonwoven Fabrics Industry, has continued to promote the fact that nonwovens are available as barrier fabrics that can be engineered to any level of FR performance deemed necessary by CPSC—a point we have made at every opportunity since the very beginning. If the 2007 Alternative Draft Standard is published for comment, therefore, INDA will review the document carefully to identify any areas of concern we may have. INDA staff has also offered the industry's cooperation in working with the furniture manufacturers so that they can better understand how nonwovens work, how much they cost, and how they could be used to comply with any new standards developed by CPSC.