When we last reported on efforts by the U.S. Consumer Product Safety Commission (CPSC) to establish national flammability standards for upholstered furniture, Commission staff had just released long-awaited details of a draft standard (see Capitol Comments, December 2004). At the time, CPSC staff indicated their intent to send a briefing package summarizing the regulatory options to the three CPSC Commissioners in late 2005. And, while it appears that staff will not meet that goal, recent developments suggest that they are focused on continuing to move the effort forward.
In May, for instance, CPSC staff circulated a second iteration of the draft standard, which they followed with a mid-October release of a preliminary economic analysis report (i.e. cost/benefit review) that is required under law. Moreover, under CPSC's "Semiannual Regulatory Agenda" appearing in the October 31 edition of the Federal Register, there is a notation that staff intends to present a recommended plan of action to the CPSC Commissioners in January 2006, meaning they are just slightly off their previously stated goal of getting a recommendation to the Commissioners by the end of 2005.
Given the impending release of the briefing package, this article will review some of the key changes staff made to the previous draft standard as well as some of the key findings of their preliminary economic report. But first, it is important to outline some regulatory history surrounding this somewhat epic rulemaking effort.
Although there has been substantial movement during the past several months, the origins of CPSC's Federal flammability standard for upholstered furniture date back to 1993 when the National Association of State Fire Marshals (NASFM) filed two petitions seeking separate standards addressing furniture fires caused by unattended cigarettes and small open flames (such as those produced by matches, cigarette lighters, candles, etc). CPSC eventually decided to pursue only a small open flame standard and deferred action on cigarette ignition, believing that a small open flame standard would likely also address ignitions caused by smoldering cigarettes.
Early versions of the standard sought to require upholstered furniture fabrics to be self-extinguishing when ignited by a small open flame, essentially requiring these fabrics to be treated with flame-retardant (FR) chemicals. Concerns about the potential long-term health impacts of exposures to FR-treated furniture, however, began to emerge, slowing CPSC's progress. During this time, INDA, Association of the Nonwoven Fabrics Industry, repeatedly urged the agency to consider the use of nonwoven barriers—which can limit the spread of a fire without all of the consumer exposure to FR chemicals—as an alternative to self-extinguishing fabrics. CPSC was ultimately convinced and released a revised draft standard in 2001 that included an option to use FR barrier materials as a means of complying with national standards.
In 2003, CPSC decided to expand the scope of its efforts to include fires started by smoldering cigarettes and issued a new Advance Notice of Proposed Rulemaking to include both hazards. CPSC staff has been working to develop a final proposal ever since and, as we noted above, released preliminary draft standard language in October 2004.
Work on the upholstered furniture standard—and several other pending CPSC initiatives—was again slowed, however, when a vacancy in the three-member panel of commissioners was created after Mary Sheila Gall announced her resignation in October 2004, and her replacement, commissioner Nancy Nord, was not sworn in until May 5, 2005. Just days later, in fact, CPSC staff released a revised version of the draft standard.
Most recently, during a November 11 stakeholder meeting requested by NASFM, CPSC project manager Dale Ray explained that staff had revised their previous version of the draft standard in an effort to provide "more options and flexibility for manufacturers" while simultaneously improving the safety of upholstered furniture.
The new version, according to Mr. Ray, attempts to achieve this balance by offering manufacturers the option of choosing one of four methods to comply with the standard, which include: 1) using a performance-tested interior fire barrier; 2) employing a cover fabric with barrier qualities such as leather, wool or vinyl-coated fabrics; 3) using a combination of ignition resistance tested foam/loose filling materials with performance-tested cover materials or using non-complying loose filling materials with a performance tested interliner or 4) using any combination of upholstery materials that meet end-product smoldering and open flame resistance tests.
In addition, the most recent draft requires that furniture manufacturers/importers affix a label to each piece of upholstered furniture identifying the specific method used to comply with the national standard, along with other information such as the manufacturer/importer's name and month and year of manufacture. The newer version of the draft standard now also calls for a modified mock-up piece designed according to American Society for Testing and Materials (ASTM) and Upholstered Furniture Action Council (UFAC) specifications for the smoldering resistance tests, and requires that a cigarette be left on the mock-up for 30 minutes. During that time, the substrate or filling material may not lose more than 10% of its total mass or it will fail. The revised draft also makes changes to pass/fail criteria for the small, open-flame resistance test.
Filling materials and barriers are subject to the same flame exposure/duration requirements under the staff's latest version of the draft standard, (i.e. 35 mm gas flame/20 seconds for fillings; 240 mm flame/70 seconds for barriers), but they no longer have to meet the 10% mass loss at 10 minutes requirement. Further, the newer version allows for testing of cover fabrics and composites and requires these items be subjected to a 35 mm gas flame for 20 seconds. All of the items being tested will be given a passing grade if they do not lose more than 20% mass after 45 minutes. According to the preliminary economic analysis released by CPSC in October, the cost of implementing the standard in its current form would be approximately $184 million. But these costs, according to the same analysis, will be offset by nearly $1.2 billion in anticipated annual benefits due to dramatic reductions in deaths, injuries and property losses.
During the November meeting, Mr. Ray reiterated the staff's plan to deliver a briefing package that includes all of the regulatory options for the rulemaking, along with a final economic analysis and a recommended course of action for consideration by the CPSC Commissioners. The commissioners are then expected to vote on which option will be pursued and, based on that vote, it is likely that a Notice of Proposed Rulemaking will be published for public comment.
Assuming, therefore, that a proposed rule is published in early 2006, members of INDA's Furniture and Bedding Flammability Focused Interest Committee will be asked to review the proposal and recommend an appropriate response from the nonwovens industry. CPSC typically allows 60 to 90 days for public comments to be submitted in response to proposed rules and, after that, the Commission will take as much time as needed to review all comments and determine what additional steps will be taken. This means that, under a best-case scenario, a final rule could be expected before next spring. Realistically, however, it is anybody's guess when, or even if, this rulemaking will ever be finalized.
To view CPSC staff's revised draft standard, the preliminary economic analysis and other documents related to the upholstered furniture flammability rulemaking, visit CPSC's Freedom of Information Act Electronic Reading Room at: http://www.cpsc.gov/library/foia/foia.html.