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Proposed California Regulations Discourage Use of Flame Retardant Chemicals


As a result of recent studies linking certain flame retardant chemicals to potential carcinogenic, developmental and neurological effects, California seeks to revise flammability standards that have long encouraged manufacturers to use such flame retardants in their products. The proposed revisions, announced on February 8, 2013 by the California Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation (BEARHFTI), are intended to allow manufacturers to comply with those standards without using the implicated chemicals. 

In the wake of recent publicity regarding the presence of one such chemical, chlorinated Tris (TDCCP), in furniture and baby products, manufacturers of furniture and other consumer products containing this compound have begun receiving 60-Day Notices of intent to sue under California’s Proposition 65.

California’s Technical Bulletin 117 (TB 117) outlines flammability and testing requirements for upholstered foam furniture manufactured or distributed in the State. For example, it requires that foam filling in furniture must withstand a 12-second exposure to an open flame. Manufacturers are required to indicate on their labels whether a product is in compliance with TB 117. While flame retardant chemicals are not mandated under TB 117, manufacturers have found them to be the most efficacious and cost-effective way to comply.

The Proposed Regulations (TB 117-2013), to be administered by the BEARHFTI, would substantially alter the requirements of TB 117. Among the key proposed changes:

  • Flammability tests would be based on exposure to a smoldering cigarette, rather than an open flame.
  • All cover fabrics would need to be tested. The current regulations require testing of only certain furniture fabrics.
  • The list of baby and infant products exempted from flammability standards would be expanded substantially.

Public comments on the proposed regulations must be received by March 26, 2013. A public hearing will be conducted shortly thereafter.

The notice of proposed regulations can be found here, along with the current and proposed versions of TB 117.

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For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Kevin C. Mayer
Partner – Los Angeles, San Francisco
Phone: +1 213.443.5544, +1 415.365.7473

Cheryl A. Falvey
Partner – Washington, D.C.
Phone: +1 202.624.2675

Warren Lehrenbaum
Partner – Washington, D.C.
Phone: +1 202.624.2755