Capitol Comments

New California Furniture Flammability Standard Takes Effect

By Jessica Franken, Director of Government Affairs & Dawnee Giammittorio, Associate Director of Government Affairs INDA, Association of the Nonwoven Fabrics Industry | February 18, 2014

Plus, Miscellaneous Tariff Bill update.

California has adopted a new flammability standard designed to discourage the use of flame retardant chemicals in upholstered residential furniture. The new law, Technical Bulletin (TB) 117-2013, revises the earlier TB 117 by replacing the standard’s open flame test with a smolder test that regulators believe can be met without using flame retardant chemicals. As of January 1, 2014, manufacturers may begin manufacturing to the new standards, or wait until Jan. 1, 2015 when compliance will be required. 

California, the only state with a flammability standard for furniture, first implemented TB 117 in 1975. It has become the de facto national standard in the absence of a rule from the Consumer Product Safety Commission (CPSC), which has been toiling away on a federal version since 1993. Today, some 80% of furniture sold in the U.S. meets TB 117 guidelines.

The California standard is administered by the state’s Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation (BEARHFTI) and applies to upholstered furniture, including some children’s products such as high chairs. The old standard required the filling materials, usually polyurethane foam, to withstand a 12-second exposure to an open flame (the “flame test”). The most effective and least expensive way to pass this test was to inject flame retardant chemicals into the foam, resulting in sofas that contained as much as two to three pounds of chemicals. 

However, in recent years, a flood of media attention including a six-part Chicago Tribune series of articles and an HBO film, “Toxic Hot Seat,” has focused on the effectiveness, safety and abundance of flame retardants present in products in American homes. The Chicago Tribune series charged the chemical industry with leading “a decades-long campaign of deception that has loaded the furniture and electronics in American homes with pounds of toxic chemicals linked to cancer, neurological deficits, developmental problems and impaired fertility,” citing testing that showed that flame retardants failed to meaningfully reduce fire damages, while at the same time exposing consumers to serious health threats. California’s standard came under particularly harsh criticism in the articles, particularly the logic of testing that focuses on exposing foam inside a cushion to an open flame when in reality it is upholstery fabric that is ignited first in most furniture fires. 

In June 2012, California Gov. Jerry Brown responded to the criticism of TB 117 and mounting evidence of health risks by instructing BEARHFTI to review the standard with the goal of reducing the use of toxic flame retardants. On February 8, 2013, the Bureau released the updated version, which, as already noted, replaces the open flame test with a smolder-only one, although it does not directly ban the use of flame retardants.

TB 117-2013 adopts the approach that the best way to prevent foam from igniting is to make sure that the surface materials do not smolder in the first place. Under the new standard, a lighted cigarette will be placed on the furniture surface and if the resulting charring is two inches or less, the furniture will pass. Flame retardants are not explicitly banned under TB 117-2013, but drafters believe they met the Governor’s charge of reducing their use because the new standard provides no incentive for using them. As BEARHFTI Chief Tonya Blood explained, “The previous standards focused predominantly on filling materials, where fires don’t actually start. The new standards were developed to address where the fire begins, which is the cover fabric and to focus on the interactions of the cover fabric and filling materials.” 

The new standard should be welcome news to barrier makers. To pass the new standard, manufacturers can line furniture with a fire shield or use flame-retardant fabrics, which do not emit toxic gases. Gov. Brown’s office reports that a number of manufacturers have stated they will no longer need to use foam injected with flame retardants under the new standards but will instead choose between more smolder-resistant cover fabrics or smolder-resistant barriers beneath the cover fabrics.

The California standard is expected once again to have broad reaching impact both as the de facto standard until a federal one is adopted and also as a direct influence on the federal standard currently in the works. The Consumer Product Safety Commission (CPSC) said it will look to California as it performs its own analysis and crafts its own standard. Additionally in the report accompanying the bill funding CPSC for 2014, the Senate Appropriations Committee “urges the CPSC to continue its work on a furniture flammability standard that addresses smoldering ignition risk and does not impede the eventual adoption of, and compliance with, California’s new proposed standard.”

TB117-2013, including details of the test standard, can be found at: www.bhfti.ca.gov/about/laws/attach_11.pdf

Miscellaneous Tariff Bill update

Unfortunately, we cannot report that the Miscellaneous Tariff Bill (MTB) is making its way through Congress, but the Senate has taken up important trade legislation that could mean the MTB is next on the agenda. We reported last month that insiders have predicted the most likely path forward for the MTB would be in early January as part of a larger package of trade legislation including a bill reinstating Presidential Trade Promotion Authority (TPA). While it is no longer early January, at press time the Senate is considering a bipartisan bill to reinstate Trade Promotion Authority (TPA), the Bipartisan Congressional Trade Priorities Act of 2014, or TPA-2014, introduced January 9.

Under TPA, which expired in 2007 and is also called “fast track” authority, trade agreements would move swiftly through Congress allowing lawmakers only to vote yea or nay, but not to amend or filibuster the deals. Its renewal is seen as essential to finalizing significant trade deals, including the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (T-TIP). 

The Senate Finance Committee held hearings January 16 on TPA-2014 where Democrats raised concerns on a range of issues including labor, environmental, currency and investor-state dispute settlement provisions. While Senate aides in December said they believed passage of TPA-2014 was likely, it is unclear whether they expected so many issues would need to be resolved. The Senate is expected to vote soon on TPA-2014, and the House is also considering its own version --H.R. 3820, which is expected to pass.

As regular readers know, the MTB provides critical import duty relief on hundreds of essential manufacturing inputs that are not available in the U.S., including viscose rayon staple fibers. Unfortunately, Congress allowed the duty relief benefits to lapse at the end of 2012, forcing U.S. companies to absorb the additional costs throughout the year and affecting their ability to compete.  H.R. 2708, the stalled bill that reinstates MTB relief, includes several provisions covering rayon staple fibers but does not provide for a retroactive refund of tariffs. There is no corresponding MTB measure before the Senate, which has been distracted while some lawmakers debate whether the duty relief constitutes an earmark and still others have introduced bills to revise the MTB process altogether. 

We remain hopeful that Congress will take up the MTB measures along with its consideration of the TPA bill. INDA will continue to monitor activity on these important trade measures and encourage speedy approval. In the meantime, if you would like to send a message to your Congressional lawmakers encouraging them to support passage of the MTB, contact INDA’s Director of Government Affairs Jessica Franken directly at jfranken@inda.org to request a template letter and instructions for sending it.

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