Prop 65 Calling Shots for Fire SafetyPost by: RJ Lee Group News
- 2:04PM Oct 15, 2012
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For 40 years, the U.S. Consumer Product Safety Commission (CPSC) has been attempting to develop a mandatory federal flammability standard for residential upholstered furniture. Now, pressure from the U.S. Environmental Protection Agency (EPA) and environmental non-governmental organizations (E-NGOs) on flame retardants are contributing to a race between California and the federal government to develop a standard that adequately and simultaneously addresses fire safety and health concerns.
In the event of a residential upholstered furniture fire the manufacturer of the furniture, fabric, foam, filler, barrier or flame retardant could be liable. Even if the product involved meets the required standards, the state or federal agencies will not be held responsible. There will likely be lawsuits against manufacturers who knowingly sell non-flame retardant materials and against those who add flame retardants to their product using chemicals known to the State of California to cause cancer. Regulatory agencies face the challenge of balancing fire standards with hazard-based chemical regulations to produce consumer-friendly products.
At the end of October 2012, California will require furniture manufacturers to label their products with two statements, one saying the product is safe, the other saying it’s not. The first label required by the Bureau of Home Furnishings and Thermal Insulation (BHFTI) confirms that the product passed the state’s residential furniture flammability test, Technical Bulletin-117 (TB-117) . In this test, individual furniture components are subjected to smoldering cigarettes and small open flames, the latter essentially necessitating the use of flame retardants. The second label is required by the Office of Environmental Health Hazard Assessment (OEHHA) to warn consumers that, based on hazard and not on exposure and risk, a chemical contained in the furniture is known by the State of California to cause cancer. This Proposition 65 labeling mandate is for the flame retardant tris(1,3-dichloro-2-propyl)phosphate (TDCPP). Labeling is not required if the exposure is below the safe harbor level of 5.4 micrograms per day . The Polyurethane Foam Association, an industry group, recommends that manufacturers apply the Proposition 65 label to all furniture to avoid fines for products that might have been cross-contaminated during manufacturing and that could be found to exceed the safe harbor level . Alternatively, one foam manufacturer has decided to discontinue using TDCPP in all of its products and facilities to avoid the cancer label on its products .
A media expose this past summer on flame retardants and flammability standards prompted California Governor Jerry Brown and Illinois U.S. Senator Richard Durbin to act immediately, with Brown calling for his state to review its furniture flammability standard and Durbin summoning CPSC and EPA to appear before the Senate. As a result of Governor Brown’s prodding, California, the only state with mandatory residential furniture flammability standards, quickly proposed a revision that focuses on cigarette smoldering and eliminates small open flame testing . The final standard is expected to be instituted sometime next summer, but only after the resolution of a number of critical items, which may delay or prevent implementation. For example, the proposed test uses cigarettes that are no longer sold commercially in the U.S. and may not relate to real-world situations.
Meanwhile, Senator Durbin’s hearing raised the profile of CPSC’s most recent efforts to finalize a 2008 cigarette smoldering-only rule . CPSC asked Congress to enable quicker rule adoption by removing onerous and burdensome requirements imposed in Section 4 of the Flammable Fabrics Act. No timetable was given for issuance of the final CPSC rule. EPA’s appearance at the hearing was an effort to gain support for Senator Lautenberg’s proposed Safe Chemicals Act. The EPA claimed to not possess the power to address chemicals used in consumer products under the current Toxic Substances Control Act and requested the burden of determining chemical safety be shifted to the manufacturers.
A brief background is warranted on the history of residential upholstered flammability regulations and the reason no mandatory federal test standard exists. In the early 1970s the task of addressing upholstered furniture fires was assigned to the newly formed CPSC. Soon after, a study by the National Bureau of Standards (NBS) identified smoldering cigarettes as the dominant cause of these fires . Based on this information and an NBS-developed furniture fire test, CPSC issued a proposed rule in 1978. The furniture industry group Upholstered Furniture Action Council (UFAC) countered with a voluntary standard  that was accepted by CPSC in 1981. The government encourages voluntary standards as an alternative to federal rulemaking. However, having a voluntary standard in lieu of a federal one leaves open the possibility for states to develop their own regulations. The lone mandatory state standard, implemented by California in 1975, has become the de facto standard in the U.S. as manufacturers have decided not to have a separate line of furniture for California and another for the rest of the states. The impetus for CPSC’s current attempt at a mandatory federal standard was to prevent patchwork state-by-state requirements that were being proposed. Industry preferred to meet one standard rather than 50 separate ones.
In the next 8-10 months, California is expected to issue their final rule, and CPSC could pre-empt it with a new federal standard. As a UFAC representative stated over 30 years ago about the deliberations on the first CPSC proposed rule, “The delay is indicative of the complexity of the issue. I think it’s going to last a long, long time.”
Related Fire Safety Questions
How effective have the UFAC and TB-117 standards been?
It is difficult to separate effects of these standards from the influence of other factors on home fire safety, including reduction in number of smokers, introduction of reduced ignition propensity cigarettes, requirements for childproof lighters, increase in smoke detector usage, and code adoption of residential fire sprinklers. However, according to the National Fire Protection Association: “Upholstered furniture fires in the home environment have fallen sharply, dropping 84% from a high of 36,900 in 1980, the first year of usable data, to a 30-year low of 5,900 in 2009. Even with a 67% drop in the number of associated deaths from highs of 1,360 in 1980 and 1981 to a low of 450 in 2009, upholstered furniture remains the leading item first ignited in home fire deaths.” 
Which federal agency has authority to regulate flame retardant chemicals in consumer products?
At Senator Durbin’s hearing, CPSC pointed to the EPA as that agency. However, the Federal Hazardous Substance Act (FHSA) gives CPSC the authority to regulate chemical health hazards if a substance or product presents an unreasonable risk based on toxicity, exposure, and bioavailability. Over the years, CPSC has used the FHSA to assess toxicity of flame retardants [10, 11] and has worked with various agencies to evaluate potential risks from the use of flame retardants in furniture [12, 13, 14]. In fact, CPSC stated they intended to work closely with EPA on flame retardant chemical issues related to CPSC rulemaking . They explained that EPA could issue a Significant New Use Rule (SNUR) concurrently with the CPSC proposed rule. The SNUR would be used to obtain additional health and safety data where needed. These data could be used to establish controls on the use of flame retardant chemicals to reduce potential risks to human health and the environment.
What are some technical items affecting test standard development?
Some issues that affect the development of both the California and Federal flammability standards are the changes to, and availability of, standard materials and the decision to test components or composites. The standard cigarettes used over the years for smoldering tests have been discontinued as reduced ignition propensity (RIP) cigarettes are required in all 50 states. The National Institute of Standards and Technology (NIST) has developed a normal ignition propensity cigarette and sells it at a high price. The final choice of standard cigarette for the smoldering test has not yet been made. Testing individual materials used in the furniture may be faster and cheaper, but the results may not be representative of the composite end-product performance. A fabric and a filler material that pass individual component tests, may fail when put together in a composite test. Once a test is decided upon, validation is required to determine that the test is representative of the final product.
1. Technical Bulletin 117 Requirements, Test Procedure and Apparatus for Testing the Flame Retardance of Resilient Filling Materials Used in Upholstered Furniture, March 2000.
2. Amendment to Section 25705, Specific Regulatory Levels Posing No Significant Risk – Tris(1,3-dichloro-2-propyl)phosphate (TDCPP) [06/01/12].
3. Member Alert: California Prop 65 Update, American Home Furnishings Alliance, August 24, 2012.
4. Hickory Springs Eliminates TDCPP Fire Retardant from Foam Formulations and Production Facilities, Furniture World News, October 5, 2012.
5. Technical Bulletin 117-2012 Requirements, Test Procedure and Apparatus for Testing the Smolder Resistance of Upholstered Furniture, July 2012.
6. Standard for the Flammability of Residential Upholstered Furniture; Proposed Rule, Consumer Product Safety Commission, 16 CFR Part 1634, Federal Register, Vol. 73, No. 43, March 4, 2008.
7. Vickers, A.K. and H. Tovey, Upholstered Furniture in Fire Incidents, National Bureau of Standards Report 10835, April 24, 1972.
8. Upholstered Furniture Action Council Test Methods, http://www.ufac.org/testmethods.htm
9. Home Fires that Began with Upholstered Furniture, M. Ahrens, National Fire Protection Association, 78 pp, 2011.
10. Babich, M.A., CPSC Staff Preliminary Risk Assessment of Flame Retardant (FR) Chemicals in Upholstered Furniture Foam, December 21, 2006.
11. Mishra, L.C. and M.L. Wind, Toxicity of Flame Retardant Chemicals (FR’s) used in Upholstery Fabrics and the Toxicity of the Smoke from FR-Treated Fabrics, CPSC Internal Memorandum to D. Ray, October 1, 1997.
12. National Research Council (NRC) (2000) Toxicological Risks of Selected Flame-Retardant Chemicals. Subcommittee on Flame Retardant Chemicals, National Research Council, National Academy of Sciences. National Academy Press, Washington, DC. ISBN 0-309-07047-3.
13. Furniture Flame Retardancy Partnership: Environmental Profiles of Chemical Flame-Retardant Alternatives for Low-Density Polyurethane Foam, Volume 1, US EPA, 153 pp., September 2005.
14. Nomination of FR Chemicals for NTP Testing, U.S. Consumer Product Safety Commission (CPSC) Staff, August 1, 2005.