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California Legislature Approves Broad Restrictions on Flame Retardant Chemicals

Despite facing strong opposition from industry groups, the California legislature recently approved a bill (AB 2998) banning the use effective from 1 January 2020 of most flame retardant chemicals in children’s products, mattresses and upholstered furniture. Governor Jerry Brown is expected to sign the legislation into law in the near future.

The legislation will prohibit effective from 1 January 2020 the sale and distribution in commerce state-wide of any new juvenile products, mattresses and upholstered furniture that contain, or that have a constituent that contains, flame retardant chemicals above 1,000 parts per million that meet the following specific criteria:

  • a functional use for the chemical is to resist or inhibit the spread of fire or as a synergist to chemicals that resist or inhibit the spread of fire, including any chemical for which the term “flame retardant” appears on the Occupational Safety and Health Administration substance safety data sheet pursuant to subdivision (g) of Section 19100.1200 of Title 29 of the Code of Federal Regulations as it read on 1 January 2019; and
  • the chemical is one of the following: (i) a halogenated, organophosphorus, organonitrogen or nanoscale chemical; (ii) a chemical defined as a “designated chemical” in Section 105440 of the Health and Safety Code; or (iii) a chemical listed on the Washington State Department of Ecology’s list of chemicals of high concern to children in Section 173-334-130 of Title 173 of the Washington Administrative Code as of 1 January 2019 and identified as a flame retardant or as a synergist to flame retardants in the rationale for inclusion in the list.

The term “juvenile product” is defined in the legislation as a product designed for residential use by infants and children under 12 years of age, including bassinets, booster seats, changing pads, floor playmats, high chairs, high chair pads, infant bouncers, infant carriers, infant seats, infant swings, infant walkers, nursing pads, nursing pillows, playpen side pads, play yards, portable hook-on chairs, strollers and children’s nap mats. Juvenile products do not include any of the following:

  • products that are not primarily intended for use in the home, such as products or components for motor vehicles, watercraft, aircraft or other vehicles;
  • products subject to Part 571 of Title 49 of the Code of Federal Regulations regarding parts and products used in vehicles and aircraft;
  • products required to meet state flammability standards in Technical Bulletin 133 (Flammability Test Procedure for Seating Furniture for Use in Public Occupancies); and
  • consumer electronic products that do not fall under the Bureau of Electronic and Appliance Repair, Home Furnishings, and Thermal Insulation’s jurisdiction for flammability standards.

The prohibition will not apply to the following:

  • electronic components of juvenile products, mattresses, reupholstered furniture, upholstered furniture or any associated casing for those electronic components;
  • upholstered or reupholstered furniture components other than those identified in paragraph (1) of subdivision (a) of Section 19094 (i.e., other than fabrics, barrier materials, resilient filling materials and decking materials);
  • thread or fibre when used for stitching mattress components together; and
  • components of adult mattresses (i.e., mattresses other than toddler mattresses, crib mattresses and other infant sleep products) other than foam.

The legislation had been robustly opposed by several industry groups, including the American Chemistry Council. Complaining that the legislation was contrary to the objectives of California’s Safe Consumer Products programme, the groups argued that the broad definitions of covered chemical substances in the bill limit “effective product design by not only restricting the vast majority of today’s flame retardant chemicals, but also those that may be developed in the future, regardless of their safety profile and any assessment conducted by government authorities.”

Content provided by Picture: HKTDC Research
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