SB 763
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Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Susan Bonilla, Chair
SB 763(Leno) – As Amended June 19, 2015
SENATE VOTE: 30-10
NOTE: This bill is double-referred, and if passed by this Committee, it will be referred to the
Assembly Environmental Safety and Toxic Materials Committee.
SUBJECT: Juvenile products: flame retardant chemicals
SUMMARY: Requires a juvenile product manufacturer, as defined, to include a label indicating
whether the product has added flame retardant chemicals, and requires the Bureau of Electronic
and Appliance Repair, Home Furnishings and Thermal Insulation (Bureau) to ensure compliance
with labeling and documentation requirements, as specified.
EXISTING LAW:
1) Establishes the Home Furnishings and Thermal Insulation Act (Act), administered by the
Bureau within the Department of Consumer Affairs (DCA). The Bureau is under the
supervision and control of a Chief appointed by the Governor, and the Chief is under the
supervision and control of the Director of DCA. (Business and Professions Code (BPC) §
19000 et seq.)
2) Provides for the licensing and inspection of businesses that manufacture and sell upholstered
furniture, bedding, and thermal insulation. (BPC § 19000 et seq.)
3) Defines “seating furniture,” including children’s furniture, movable or stationary, as any
furniture made or sold with or without filling material, together with the structural units,
which may be used as a support for the body, limbs, or feet when sitting or resting in an
upright or reclining position. (BPC § 19006.1)
4) Defines “bedding” as any quilted pad, packing pad, mattress pad, hammock pad, mattress,
comforter, quilt, sleeping bag, box spring, studio couch, pillow or cushion made of leather,
cloth or any other material, which is or can be stuffed or filled with any concealed substance
or material, which can be used by any human being for sleeping or reclining purposes. (BPC
§ 19007)
5) Requires all mattresses and box springs manufactured for sale in this state to be fire retardant,
as defined to meet the federal standards for resistance to open-flame test, and authorizes the
Bureau to adopt regulations to implement those standards. (BPC § 19161)
6) Requires other bedding products to comply with regulations adopted by the Bureau
specifying that those products be resistant to open-flame ignition. (BPC § 19161)
7) Requires all seating furniture sold or offered for sale, including any seating furniture sold to
or offered for sale for use in a hotel, motel, or other place of public accommodation, and
reupholstered furniture to which filling materials are added, to be fire retardant and labeled in
a manner specified by Bureau. (BCP 19161)
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8) Requires all flexible polyurethane foam, except as specified, that is offered for retail sale to
be fire retardant, and defines “fire retardant” to mean a product that meets the regulations
adopted by the Bureau. (BPC § 19161.3)
9) Authorizes the Chief, subject to the approval of the Director of DCA, to exempt items of
upholstered furniture which are deemed not to pose a serious fire hazard from the fire
retardant requirements. (BPC § 19161.5)
10) Requires, pursuant to TB 117-2013, beginning January 1, 2015, all filling materials and
cover fabrics contained in upholstered furniture sold in California to meet certain smolder
resistant testing standards, and to be labeled as specified. (Article 13, Division 3, Title 4,
California Code of Regulations § 1374)
11) Exempts eighteen juvenile products (bassinets, booster seats, car seats, changing pads, floor
play mats, highchairs, highchair pads, infant bouncers, infant carriers, infant seats, infant
swings, infant walkers, nursing pads, nursing pillows, playpen side pads, playards, portable
hook-on chairs, strollers) from meeting the flammability requirements of TB 117-2013.
(Article 13, Division 3, Title 4, CCR § 1374.2)
12) Prohibits a person from manufacturing, processing, or distributing in commerce a product or
part of a product that contains more than 1/10th of 1% of pentaBDE or octaBDE (types of
polybrominated diphenyl ethers, or "PBDEs"), except as specified. (Health and Safety Code
§ 108922)
THIS BILL:
1) Defines the following terms:
a) "Component" is the separate constituent parts of juvenile products sold in California,
specifically cover fabrics, barrier materials, resilient filling materials, and plastic parts.
b) "Juvenile product" is a product subject to the Act and intended for use by infants and
children under 12 years of age, including: bassinets, booster seats, infant car seats,
changing pads, floor play mats, highchairs, highchair pads, infant bouncers, infant
carriers, infant seats, infant swings, infant walkers, nursing pads, nursing pillows,
playpen side pads, playards, portable hook-on chairs, strollers, children's nap mats, and
infant foam crib mattresses. Provides that products subject to the upholstered furniture
labeling requirements are not subject to this bill, and that a "juvenile product" does not
include products required to meet federal flammability standards for mattresses and
mattress pads.
c) "Added flame retardant chemicals" are flame retardant chemicals that are present in any
juvenile product or component thereof at levels above 1,000 parts per million.
d) "Flame retardant chemicals" are any chemical, as defined, or chemical compound for
which a functional use is to resist or imbibe the spread of fire, including halogenated,
phosphorus-based, nitrogen-based, and nanoscale flame retardants, flame retardant
chemicals listed as "designated chemicals" pursuant to the California Environmental
Contaminant Biomonitoring Program, and any chemical or chemical compound for
which "flame retardant" appears on the substance Safety Data Sheet (SDS) pursuant to
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federal regulations.
2) Requires a manufacturer of juvenile products to have a label securely attached to the product,
in plain view, stating whether or not the fabric, filling, and plastic parts of the product
contain added flame retardant chemicals, as specified.
3) Requires retailers of juvenile products sold through paper catalogs or online in California to
place the flame retardant chemical statement clearly and conspicuously, and in close
proximity to the juvenile product's price on each page, or webpage, that contains a detailed
description of the juvenile product and its price.
4) Requires a manufacturer of juvenile products sold in California to retain documentation to
show whether flame retardant chemicals were added. Provides that a written affidavit by the
supplier of each component of a juvenile product attesting that flame retardant chemicals
were or not added is sufficient documentation.
5) Requires the Bureau to ensure compliance with these labeling and documentation
requirements, and requires, within 30 days of a request by the Bureau, a manufacturer of a
juvenile product sold in California to provide the Bureau with documentation establishing the
accuracy of the flame retardant chemical statement on the label.
6) Authorizes the Bureau to assess fines of not less than $2,500 and not more than $15,000,
depending on specified factors, for the failure of the manufacturer of the juvenile product to
maintain the documentation required or to provide requested documentation to the Bureau.
7) Requires the Bureau to provide the California Department of Toxic Substances Control
(DTSC) with samples of components of the product from products marked “contains NO
added flame retardant chemicals” for testing for the presence of added flame retardant
chemicals, as specified.
8) Requires DTSC to provide the results of all testing to the Bureau, and the Bureau to
reimburse the DTSC for the costs of testing. Requires the Bureau to assess available
resources no later than August 1 of each fiscal year and determine the number of tests to be
conducted in the corresponding fiscal year.
9) Authorizes the Bureau, if the DTSC's testing shows that a juvenile product is mislabeled
because it contains added flame retardant chemicals, to assess fines for violations against
manufacturers of the juvenile product and component manufacturers to be held jointly and
severally liable for the violation. Also authorizes the Bureau to request that the label that
belong to the same stock keeping unit (SKU) currently produced by the manufacturer be
corrected to reflect that flame retardant chemicals are added to the product.
10) Authorizes the Bureau to assess fines between $2,500 to $10,000, depending on specified
factors, or for mislabeling a product.
11) Requires the Bureau to adjust all minimum and maximum fines imposed by these provisions
for inflation every five years.
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12) Requires the Bureau to make information about any citation issued pursuant to these
provisions on the Bureau's website, specifies that it is the duty of the Bureau to receive
complaints from consumers regarding juvenile products sold in California, and authorizes the
Bureau to adopt regulations to carry out the provisions of the bill.
13) Provides that fire retardant requirements shall not apply to juvenile products.
FISCAL EFFECT: According to the Senate Appropriations Committee Analysis dated May
28, 2015, "Costs pressures, in the low hundreds of thousands of dollars, to the Home Furnishing
and Thermal Insulation Fund (HFTI Fund, special) for the enforcement of these requirements,
including testing for label accuracy."
COMMENTS:
Purpose. This bill is sponsored by the California Professional Firefighters, the Center for
Environmental Health, and the Consumer Federation of California. According to the author,
"This bill requires manufacturers of specific children's products to disclose on a label whether or
not the product contains added flame retardant chemicals. Infants and small children spend
hours in close contact with items such as changing pads, nursing pillows, and strollers. This
label will only apply to a narrow class of products that have a history of containing flame
retardants in their foam fillings….Flame retardant chemicals are associated with cancer,
decreased fertility, hormone disruption, lower IQ, and hyperactivity. When these chemicals
burn, they release dioxin and furans—some of the most toxic chemicals known to science—that
put firefighters at high risk for cancer and other serious conditions. Finally, fire reporting data
has raised questions as to whether flame retardants actually provide additional fire safety.
As a result of growing public concern, California recently moved away from the open flame test.
The change to a more reasonable smolder test enables manufacturers to meet fire safety with or
without the use of flame retardant chemicals. SB 1019 (Leno) gave consumers a way to know if
furniture contains flame retardant chemicals. However, the SB 1019 label doesn’t apply to these
child and infant products, since they pose little or no fire risk and were exempted from
California's flammability standard. Testing has proven that exemption from the flammability
standard does not mean products are free from flame retardant chemicals. Parents simply don't
know, and lack the information they need to send an important market signal….SB 763 allows
for the free market to operate at its best- when consumers have the knowledge to seek out and
purchase what they want…. SB 763 simply gives consumers a way to make informed choices
and protect children from harm."
Background. The California Bureau of Home Furnishings and Thermal Insulation (BHFTI) was
established in 1911 (AB 547 (Ryan), Chapter 73, Statutes of 1911) in response to unscrupulous
manufacturing practices in the mattress industry, which contributed to the fires following the
1906 San Francisco earthquake. BHFTI's jurisdiction was later expanded to include upholstered
furniture and other bedding and insulation products. To ensure public safety, BHFTI's licensing
population was broadened to include retailers, wholesalers and importers in order to remove
dangerous product from the market. BHFTI also certifies thermal insulation products and
publishes an annual directory of those products. In 2009, ABX4 20 (Strickland), Chapter 18,
Statutes of 2009-10, merged BHFTI with the Bureau of Electronic and Appliance Repair
together to create the Bureau.
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California is one of only two states (Ohio is the other) that have product testing laboratories.
California leads the nation in setting industry standards and for its technical expertise in testing
and classifying filling materials found in furniture and bedding. These standards affect the
products that are sold across the country, because manufacturers typically produce items that
meet California's standards, and distribute those items to the rest of the nation. The Bureau has
access to, and may inspect and test, any article of upholstered furniture, bedding, or insulation,
and may condemn, seize, or destroy any of those products that are in violation of the law. While
companies do not need to have their products tested to receive a license, staff may select items
for testing to determine if products are in compliance. The Bureau's laboratory tests roughly 300
samples of upholstered furniture, mattresses, bedding, plumage (feather and down), and thermal
insulation each year, and upholstered furniture and mattresses make up the largest share of those
samples.
TB 117 and TB 117-2013. In 1975, California adopted flammability standard TB 117, which
required that each component material (such as polyurethane foam) be able to withstand a small
open flame, equivalent to a candle, for at least 12 seconds. This performance-based standard did
not prescribe the use of flame retardant chemicals, manufacturing methods, or specific materials
to meet the standards. However, furniture manufacturers typically meet TB 117 by treating
materials with flame retardants comprised of halogenated compounds. California is the only
state to have established such a standard, but many manufacturers have chosen to meet TB 117
in products that they distribute across the United States. Significant concern has been raised in
recent years with the environmental and health impacts of the flame retardant chemicals that are
used to meet the standard.
In 2012, Governor Brown directed the Bureau to revise flammability standards for upholstered
furniture sold in the state. According to a statement from the Governor's office, “Toxic flame
retardants are found in everything from high chairs to couches and a growing body of evidence
suggests that these chemicals harm human health and the environment,” stated Governor Brown.
“We must find better ways to meet fire safety standards by reducing and eliminating wherever
possible dangerous chemicals.”
In addition to the environmental and health concerns, the Bureau believed that the existing
standard did not adequately address the flammability performance of upholstered furniture in an
actual fire. In an actual fire, upholstery cover fabric is the first item to ignite, and then exposes
the foam underneath to a much larger flame. The current small open flame testing method does
not reflect real-world scenarios. As a result, the Bureau published TB 117-2013, a revised
standard, to test upholstered furniture for smolder ignition, which is the predominant source of
fires today.
TB117-2013 is a “semi-composite” test in which components are combined with standard test
materials to construct a test specimen. The standards were crafted based on a comprehensive
review, statewide workshops, and public comment, which included over 30,000 comments in
support, and a petition that reached over 68,000 signatures in support. Manufacturers have
indicated that they can comply with TB 117-2013 without the use of flame retardant chemicals.
The new TB117-2013 became effective on January 1, 2014, and manufacturers were required to
come into full mandatory compliance on January 1, 2015.
Exempt Products. BPC 19161.5 authorizes the Bureau Chief, subject to the approval of the
DCA Director, "…to exempt items of upholstered furniture which are deemed not to pose a
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serious fire hazard" from fire retardant requirements. Recently, the Bureau, after examining the
low flammability risk associated with juvenile products (which tend to use less filling materials
and less flammable materials, and are frequently used under care and supervision of adults), has
exempted specified juvenile products from toxic flame retardant requirements. In 2010, the
Bureau exempted strollers, infant carriers, and nursing pillows from TB 117 standards (4 CCR
1374.2). Effective January 1, 2014, the Bureau exempted an additional 15 juvenile products,
including: bassinets, booster seats, car seats, changing pads, floor play mats, highchairs,
highchair pads, infant bouncers, infant seats, infant swings, infant walkers, nursing pads, playpen
side pads, play yards, and portable hook-on chairs. In addition, while the Bureau used to require
exempt products to display a label that stated the product was exempt from TB 117, exempt
products are no longer required to have that label.
According to the author, while many juvenile products are exempt from flammability standards,
tests have found that flame retardants chemicals are still present in juvenile products that are in
close contact with infants and young children, including nap mats, bassinets, changing pads,
strollers, playpens, swings, nursing pillows, highchairs, and toddler chairs.
Exposure to flame retardant chemicals. People can be exposed to flame retardants through
several routes, including inhalation of dust from consumer products in the home or workplace.
These chemicals are not chemically bonded to products, and mix with household dust that is
ingested, inhaled, or otherwise absorbed into humans, pets, and wildlife. As consumer products
age, small particles of material become dust particles in the air and land on surfaces around the
home, including the floor. Young children crawling and playing on the floor near contaminated
dust actually ingest these chemicals through their frequent hand-to-mouth behavior. As a result,
young children have been found to have 3-5 times higher levels of flame retardant chemicals
than their mothers. Because many halogenated flame retardants are fat-soluble, they accumulate
in fatty areas such as breast tissue and are mobilized into breast milk, delivering high levels of
flame retardants to breast-feeding infants. Infants and toddlers are particularly exposed to flame
retardants found in breast milk and dust, and young children in the United States tend to carry
higher levels of flame retardants per unit body weight than do adults. Growing evidence shows
that many flame retardant chemicals have serious human and environmental health impacts,
including cancer, decreased fertility, hormone disruption, lower IQ, and hyperactivity.
Identifying Flame Retardant Chemicals. In California, flame retardants once commonly used
have recently been listed as being known to cause cancer or birth defects or other reproductive
harm under Proposition 65 or banned from use in the state. One of these flame retardants,
polybrominated diphenyl ethers (PBDEs), a brominated flame retardant, was frequently added to
upholstered furniture, despite being closely linked to another flame retardant that was banned
decades ago for being known to be toxic. PBDEs are the subject of many studies that link them
to thyroid disruption, memory and learning problems, delayed mental and physical development,
lower IQ, advanced puberty, and reduced fertility. In 2003, California enacted a ban on pentaand octa-BDEs AB 302 (Chan), Chapter 205, Statutes of 2003, and these flame retardants were
voluntarily discontinued in the United States after 2004. After this ban, manufacturers turned to
chlorinated tris (TDCPP), even though a similar flame retardant was known as early as the 1970s
to be toxic. In 2011, California listed TDCPP and TCEP, another chlorinated tris, under
Proposition 65.
While manufacturers have phased these specific flame retardants out of their upholstered
furniture products, conclusive studies have not yet been completed on many other flame
retardants, in part because new formulations often arise, and as a result, their human health and
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development affects are not completely understood. However, because many of these flame
retardants are molecularly similar, other types of flame retardants are similarly linked to, and
may be likely to cause, adverse health effects.
For example, California's Environmental Contaminant Biomonitoring Program, which identifies
and monitors "designated chemicals" and their metabolites that are present in the bodies of
Californians, or those chemicals that are "known to, or strongly suspected of, adversely
impacting human health or development, based upon scientific, peer-reviewed animal, human, or
in vitro studies" include many of the chemicals that have since been phased out of use. These
chemicals are the pool from which the program's scientific guidance panel recommends priority
chemicals for biomonitoring. As of June 2014, the priority chemicals list included tens of
dozens of brominated and chlorinated organic compounds and their metabolites used as flame
retardants, of which close to half are various types of PBDEs and PBDE metabolites. As a
result, while many flame retardant chemicals have been identified as posing risk of significant
harm, e.g. certain PBDEs under state statute and TDCPPs and TCEPs under Proposition 65,
other flame retardants with similar structures may continue to be used despite the likelihood of
causing similar health effects.
Prior Related Legislation. SB 1019 (Leno), Chapter 862, Statutes of 2014, required an
upholstered furniture manufacturer to indicate on the product label whether or not a product
contains added flame retardant chemicals, by including a specified statement; required
manufacturer to retain documentation, as specified, of whether or not flame retardant chemicals
were added to the product, and provide that documentation to the Bureau; and authorized the
Bureau to assess fines for violations of the above provisions, as specified.
AB 127 (Skinner), Chapter 579, Statutes of 2013, required the State Fire Marshal, in consultation
with the Bureau, to review the flammability standards for building insulation materials, including
whether the flammability standards for some insulation materials can only be met with the
addition of chemical flame retardants and requires, if deemed appropriate by the State Fire
Marshal based on this review, the State Fire Marshal to, by July 1, 2015, propose, for
consideration by the Building Standards Commission, updated insulation flammability standards.
AB 2197 (Mitchell) of 2012 would have required BEARHFTI to revise regulations to require all
seating furniture sold or offered for sale to meet a smolder flammability test rather than an open
flame-test. STATUS: This bill was held in the Assembly ESTM committee.
SB 147 (Leno) of 2011 would have required the Bureau, on or before March 1, 2013, to modify
the requirements for flammability of residential upholstered furniture to include a smolder
flammability test as an alternative method of compliance. STATUS: This billed was held in the
Senate Committee on Business, Professions, and Economic Development. The intent of this bill
and AB 2197 of 2012 was implemented through regulation through the adoption of TB 117-2013.
SB 1291 (Leno) of 2010 would have required DTSC to include, as a chemical under
consideration in the Green Chemistry process, any chemical that is used, or is proposed to be
used, as a flame retardant. STATUS: This bill was held on the Senate Floor.
SB 772 (Leno) of 2009 would have exempted “juvenile products,” as defined, from the fire
retardant requirements pursuant to federal law and the regulations of the Bureau, except that the
Bureau could have, by regulation modified this exemption if the Bureau determined that any
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juvenile products posed a serious fire hazard. STATUS: This bill was held in the Assembly
Appropriations Committee. The provisions of SB 772 have been largely implemented through
regulation by BEARHFTI effective December 29, 2010.
AB 706 (Leno) of 2008, commencing July 1, 2010, would have required bedding products to
comply with certain requirements, including that they not contain a chemical or component not
in compliance with alternatives assessment requirements as specified, and required the DTSC to
develop and adopt methodology for the coordination and conduct of an alternative assessment to
review the classes of chemicals used to meet the fire retardant standards set by BEARHFTI and
to meet other requirements as specified. STATUS: This bill was held on the Senate Floor.
AB 302 (Chan), Chapter 205, Statutes of 2003, banned the use of penta and octa PBDEs after
January 1, 2008.
ARGUMENTS IN SUPPORT:
The California Professional Firefighters Association (sponsor) states, “SB 763 provides
consumers a pathway to exercise a choice in purchasing safer juvenile products, which, in turn,
creates a direct and positive impact on the reduction of toxic exposures to firefighters....It's
important to note that SB 763's leading opponent –the American Chemical Council (ACC),
which is the chemical industry's trade association – has a $5 billion per year vested financial
interest in the continued use of flame retardant chemicals….In recent years, ACC has taken its
profit-driven, misinformation campaign on the road, going from statehouse to statehouse in an
effort to beat back legislation aimed at disclosing these harmful chemicals and strengthening a
consumer's right-to-know….The opponents' deceptive tactics have repeatedly been called out
time and again, particularly for the use of paid consultants shopping suspect conclusions.”
The Center for Environmental Health (CEH) (sponsor) writes that, "While manufacturers no
longer have to meet a flammability standard, there is nothing that prohibits the use of flame
retardant chemicals in children's products. CEH has conducted testing of juvenile products and
found flame retardant chemicals in numerous juvenile products including children's nap mats,
changing pads, and infant carriers (as worn by parents)….Flame retardant chemicals can migrate
out of products into air and dust where children are exposed to them. These chemicals are
associated with a variety of health concerns, including cancer, lower birth weight, decreased
fertility, hormone disruption, lower IQ, and hyperactivity. Due to children's frequent hand-tomouth behavior, young children have 3-5 times higher levels of certain flame retardants than
their mothers. It is also of great concern that children of color and children from low-income
communities have the highest exposure….Exposure to toxic chemicals during these critical
windows of development can cause subtle changes and permanently alter their development and
cause adverse health effects….Without this type of label it will be impossible for parents to
identify products that either do or [do] not contain flame retardant chemicals….Juvenile products
are routinely handed down to family and friends as well as donated to thrift stores, so the ability
of these second-hand users to identify products that do or do not contain family retardant
chemicals is essential. It will also provide businesses a standard format to communicate the
information to families.”
The Consumer Federation of California (sponsor) writes, “SB 763's proposed disclosures would
provide uniform information to consumers in a simple and accessible manner….SB 763 will
ensure that the public is able to make informed choices, as consumers currently have no way of
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knowing whether a child’s product contains fire retardant chemicals….Consumers are
demanding products without added flame retardants, and currently, they have absolutely no way
to evaluate one product versus another. Without a label indicating the presence of flame
retardant chemicals, consumers are not able to send market signals based on their purchasing
preferences….Consumers have a right to know whether harmful substances are present in
bassinets, playpens, carriers, and other items that are in immediate contact with their kids as they
crawl on the floor or put products in their mouths.”
A number of supporters, including Breast Cancer Action, Breast Cancer Fund, California League
of Conservation Voters, Californians for a Healthy and Green Economy, Center for
Environmental Health, Coalition for Clean Air, Environmental Working Group, Instituto de
Educación Popular del Sur de California, Pesticide Action Network North America, Physicians
for Social Responsibility – Los Angeles, San Francisco Bay Area Physicians for Social
Responsibility, and Southern California Coalition for Occupational Safety and Health write in
support, "Manufacturers are able to product safe products without adding toxic flame retardants,
yet families have no way of knowing whether a child's product does or does not contain
them….Families have a right to know if the products they purchase for young children contain
flame retardant chemicals.”
ARGUMENTS IN OPPOSITION:
The Juvenile Products Manufacturers Association (JPMA) also writes, "In 2013, the [Bureau], in
conjunction with the JPMA, concluded that the juvenile products identified in SB 763 were
unnecessarily subject to flammability standards as they do not pose a serious fire hazard. [the
Bureau] then exercised its authority to exempt these products from their flammability standards,
as specified in the [BPC]. At the same time in 2013, the [Bureau] also removed the labeling
requirements for these exempted products stating that 'an exemption label is unnecessary and
unduly burdensome on manufacturers.' SB 763 would subject companies that do not use flame
retardants and are not presently subject to labeling requirements, to comply with a new
regulatory program that requires record keeping and testing data when no potential harm exists.
This requirement would add significant burdens to companies…. JPMA believes it is very
important that labeling requirements provide information to the consumer that is easily
understood and does not dilute the message it is trying to convey. This can be accomplished in
SB 763 by removing the labeling requirement for products and components that do not contain
intentionally added flame retardants."
The California Retailers Association state, "While each retailer has a different approach on how
products are branded and presented to consumers on a retail website or catalog, there still is a
specific format that has been widely adopted to assist in the facilitation of e-commerce sales.
The disclosure statement mandates in SB 763 significantly deviates from the format most major
retail websites follow….It is uncertain how manufacturers would comply with SB 763. Retailers
rely on information from manufacturers when creating item descriptions. This bill will require
retailers to adopt complex processing practices of merchandise in order to comply with the
law….SB 763 creates a significant administrative burden and requires onerous and confusing
processing of juvenile products only for California."
A joint letter of opposition by the American Chemistry Council, California Chamber of
Commerce, California Manufacturers and Technology Association, California Citizens Against
Lawsuit Abuse, California Retailers Association, Chemical Industry Council of California, Civil
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Justice Association of California, and the National Federation of Independent Business argues
that these new requirements "…lack scientific justification, conflict with existing California
consumer product and chemical safety laws and regulations, and as a result, mislead consumers
about the potential safety of these products….California should recognize that there are many
different types of flame retardants with different exposure, health and environmental profiles.
Yet, under SB 763, manufacturers would be required to label whether their product contains a
flame retardant regardless of whether the particular chemical presents any meaningful risk to
human health or the environment….SB 763 circumvents [Proposition 65's] entire process and
undermines the public policy basis for the process by requiring manufacturers to label their
products regardless of whether the available scientific evidence justifies such action…The bill
also sidesteps the implementation of the Safer Consumer Products regulation (e.g. "Green
Chemistry") by the Department of Toxic Substances Control….[Also,] SB 763 would impose a
new labeling requirement on these same products the Bureau has determined are not required to
meet the flammability standard and has determined no label is necessary.”
POLICY ISSUES:
Labeling Requirements for Products without Flame Retardants. The author asserts that
having labels on products without flame retardants are just as important to consumers, in order
that they be fully informed and make choices based on having complete information. The
sponsors also assert that the label is necessary because tests have shown that some components
continue to have flame retardant chemicals, and that the only way to determine whether or not
these chemicals exist is to require manufacturers to know and to label them as such. For
example, if a consumer is looking at two products, one with a label that says flame retardants are
present, and another that has no label, how will a consumer know that the one without the label
has no flame retardants? A consumer may assume the product is categorized differently, or may
have simply violated a labeling requirement, instead of being able to know conclusively whether
flame retardants are present or not. The sponsors also assert that labels will make it easier for
those who use second hand goods to know whether their product contains flame retardants. The
author also asserts that requiring a label on all products will help the Bureau implement these
provisions by making it easier for the Bureau to identify and enforce violations of the Act—a
person who mislabels a product cannot claim that he or she did not know about the labeling
requirement.
However, opponents of this provision believe that requiring a label is burdensome because many
products sold in California are also sold across the country, so it would effectively require a
manufacturer to label all products for sale across the country. Opponents also believe that
requiring a label on all products will actually serve the opposite purpose: instead of drawing
consumers to those products, as the author alleges, such a label will drive those consumers to
other products, or confuse consumers. Opponents believe that because these products are
already exempt, and many manufacturers are moving away from using flame retardants, the
same affect could be achieved if manufacturers were still subject to the same provisions for
mislabeling a product. Opponents also assert that if products without flame retardants are
required to be labeled, there may be less of an incentive for manufacturers to reformulate their
components to avoid having the label, as some manufacturers do, for example, to avoid the
Proposition 65 warnings.
While it may be difficult to determine exactly what consumers want or how knowledge of flame
retardants may sway their purchasing decisions, i.e., whether consumers prefer juvenile products
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with added flame retardants, the Committee may wish to consider whether it is appropriate to
first equip consumers with that information prior to making that decision.
Online and Paper Catalog Notifications. Unlike SB 1019 from last year, this bill would also
require a statement of whether flame retardants are present to be included in online sales and in
paper catalogs. While it may not be common practice for the Legislature to mandate specified
statements on certain purchases, the state is currently looking at similar requirements for
Proposition 65 warnings in pending regulations.
Based on concerns that such notice requirements for online sales and paper catalog sales may
expose retailers to too much liability, and restrict or complicate existing business practices for
retailers, the author may wish to consider deleting the notice requirement for online and paper
catalog sales.
Delayed Implementation and Clarifications. In order to provide manufacturers sufficient time
to meet the requirements under this bill, the author may wish to consider delaying the operative
date until July 1, 2016. In addition, the author may wish to clarify that the use of electronic
components with flame retardant chemicals, for example, circuit boards, wiring, and power
cords, does not subject a manufacturer to the labeling requirement.
AMENDMENT(S):
1) On page 6, strike lines 1-17 relating to online and paper catalog sales.
2) On page 9, add subdivision (f) Electric and electronic units or components, including, but
not limited to, power cords or power supply units, motor assemblies, blue tooth modules,
vibration units, light and sound units, circuit boards and wiring, are excluded when
determining whether a product contains added flame retardants for purposes of the labeling
requirements of this section. The Bureau Chief may, at his or her discretion, subject to the
approval of the Director of Consumer Affairs, clarify this list in regulation.”
3) On page 9, add subdivision (g) This section shall apply to juvenile products manufactured
after July 1, 2016, for retail sale in the state.
REGISTERED SUPPORT:
California Professional Firefighters (sponsor)
Center for Environmental Health (sponsor)
Consumer Federation of California (sponsor)
American Congress of Obstetricians and Gynecologists, District IX California
Alameda County Board of Supervisors
Alliance for Toxic Free Fire Safety (ATFFS)
Association of Regional Center Agencies
BANANAS
Breast Cancer Action
Breast Cancer Fund
(CAL FIRE Local 2881)
California League of Conservation Voters
Californians for a Healthy & Green Economy
CALPIRG
SB 763
Page 12
Center for Environmental Health
Child Care Coordinating Council of San Mateo County (4Cs)
City and County of San Francisco, Department of the Environment
City and County of San Francisco, Mayor Edwin Lee
Clean Water Action
Coalition for Clean Air
Community Action Partnership of Madera County
Consumer Attorneys of California
Dignity Health
Earthjustice
Environment California
Environmental Working Group
First 5 Santa Clara County
Friends of the Earth
Go Kids
Grant David Gillham, Inc.
Health Care Without Harm
Instituto de Educación Popular del Sur de California
International Association of Fire Fighters
Latinas Contra Cancer
Mommy Greenest
Natural Resources Defense Council (NRDC)
Naturepedic
Pathway LA
Pesticide Action Network North America
Physicians for Social Responsibility – Los Angeles
Plumas Rural Services
San Francisco Bay Area Physicians for Social Responsibility (SF Bay Area PSR)
SoCalCOSH
Trauma Foundation
REGISTERED OPPOSITION:
American Chemistry Council
California Chamber of Commerce
California Citizens Against Lawsuit Abuse
California Manufacturers and Technology Association
California Retailers Association
Chemical Industry Council of California
Civil Justice Association of California
Juvenile Products Manufacturers Association
National Federation of Independent Business
Southwest California Legislative Council
Analysis Prepared by: Eunie Linden / B. & P. / (916) 319-3301.