Amended in Senate April 6, 2015

Senate Bill No. 763

Introduced by Senator Leno

February 27, 2015

An act to add Sections 19095 and 19161.4 to the Business and Professions Code, relating to home furnishings.

LEGISLATIVE COUNSEL’S DIGEST

SB 763, as amended, Leno. Juvenile products: flame retardant chemicals.

Existing federal law requires the Consumer Product Safety Commission to institute proceedings for the determination of an appropriate flammability standard if the commission finds that such a standard, including labeling, for a fabric, related material, or product, may be needed to protect the public. Existing federal law authorizes a state to establish a flammability standard if, among other things, it provides a higher degree of protection from the risk of fire.

Existing state law, the Home Furnishings and Thermal Insulation Act, provides for the licensure and regulation of upholstered furniture manufacturers by the Bureau of Electronic and Appliance Repair, Home Furnishings, and Thermal Insulation. Existing state law requires every upholstered-furniture manufacturer to hold a furniture and bedding manufacturer’s license. Existing state law also requires every upholstered-furniture retailer to hold a retail furniture dealer’s license. A violation of the act is a crime.

Existing state law requires upholstered furniture and bedding to contain a specified label that is securely fastened in a manner approved by the bureau in an area open to visible view. Existing state law establishes a standard to produce upholstered furniture which is safer from the hazards associated with smoldering ignition. The standard provides methods for smolder resistance of cover fabrics, barrier materials, resilient filling materials, and decking materials for use in upholstered furniture.

This bill would require a manufacturer of juvenile products, as defined, sold in California to indicate whether or not the product contains added flame retardant chemicals, as defined, by including a specified statement on that label. For sales in California over the Internet and paper catalog sales to California, the bill would require the retailer of juvenile products in California to display begin delete the end delete begin insert a end insert point-of-sale sign in a specified manner.

The bill would require the manufacturer of the juvenile product to retain sufficient documentation to show whether flame retardant chemicals were added to a juvenile product or component. The bill would provide that a written statement by the supplier of each component attesting that flame retardant chemicals were added or not added is sufficient to make this showing. The bill would require the bureau to assess a fine for a violation of the documentation requirement or for failure to provide, upon request, the required documentation to the bureau, as specified.

The bill would require a manufacturer of a juvenile product sold in California, upon request, to provide to the bureau, within 30 days of the request, documentation establishing the accuracy of the flame retardant chemical statement on the label. The bill would require the bureau to provide the Department of Toxic Substances Control with samples of the juvenile product or components thereof sold in California from products marked “contains NO added flame retardant chemicals” for testing for the presence of added flame retardant chemicals, as specified. If the department’s testing shows that a juvenile product labeled as “contains NO added flame retardant chemicals” is mislabeled because it contains added flame retardant chemicals, the bill would authorize the bureau to assess fines for violations against manufacturers of the juvenile product and component manufacturers, as specified.

The bill would require the bureau to make information about any citation issued pursuant to its provisions available to the public on its Internet Web site. The bill would also make it the duty of the bureau to receive consumer complaints.

The bill would authorize the bureau to adopt regulations to carry out these provisions.

Because a violation of the bill’s requirements would be a crime, the bill would impose a state-mandated local program.

The Home Furnishings and Thermal Insulation Act requires that all mattresses and mattress sets manufactured for sale in this state, and all seating furniture sold or offered for sale for use in this state, be fire retardant, as defined. Existing law requires that all bedding products, other than mattresses and mattress sets, that the bureau determines to contribute to mattress bedding fires comply with specified regulations adopted by the bureau.

Existing law authorizes the chief of the bureau, subject to specified approval, to exempt items of upholstered furniture that are not deemed to be a serious fire hazard from these fire retardant requirements. Existing regulation exempts from these fire retardant requirements specified articles of upholstered furniture that include bassinets, booster seats, and car seats that are not used for, or in, facilities designed for the care or treatment of humans.

This bill would exempt from the aforementioned fire retardant requirements under the act specified articles of begin delete upholstered end delete juvenile products, as provided.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 19095 is added to the Business and
Professions Code, to read:

19095.  

(a) For the purposes of this section, the following
definitions shall apply:

(1) “Component” means the separate constituent parts of
begin delete upholstered furniture end delete begin insert juvenile products end insert sold in California, begin delete as
identified in Technical Bulletin 117-2013, end delete specifically cover
fabrics, barrier materials, resilient filling materials, and begin delete decking
materials. end delete begin insert plastic parts. end insert

(2) “Juvenile product” includes, but is not limited to, a bassinet,
booster seat, begin insert infant end insert car seat, changing pad, floor play mat,
highchair, highchair pad, infant bouncer, infant carrier, infant seat,
infant swing, infant walker, nursing pad, nursing pillow, playpen
side pad, playard, portable hook-on chair, stroller, children’s nap
mat, baby carrier that is worn by an adult, begin insert and an infant end insert foam crib
begin delete mattress, and children’s upholstered furniture. end delete begin insert mattress. end insert

(3) “Added flame retardant chemicals” means flame retardant
chemicals that are present in any juvenile product or component
thereof at levels above begin delete 500 end delete begin insert 1,000 end insert parts per million.

(4) “Flame retardant chemical” means any chemical or chemical
compound for which a functional use is to resist or inhibit the
spread of fire. Flame retardant chemicals include, but are not
limited to, halogenated, phosphorous-based, nitrogen-based, and
nanoscale flame retardants, flame retardant chemicals listed as
“designated chemicals” pursuant to Section 105440 of the Health
and Safety Code, and any chemical or chemical compound for
which “flame retardant” appears on the substance Safety Data
Sheet (SDS) pursuant to Section 1910.1200(g) of Title 29 of the
Code of Federal Regulations.

(5) “Chemical” means either of the following:

(A) An organic or inorganic substance of a particular molecular
identity, including any combination of those substances occurring,
in whole or in part, as a result of a chemical reaction or occurring
in nature, and any element, ion, or uncombined radical, and any
degradate, metabolite, or reaction product of a substance with a
particular molecular identity.

(B) A chemical ingredient, which means a substance comprising
one or more substances described in subparagraph (A).

(6) “Molecular identity” means the substance’s properties listed
below:

(A) Agglomeration state.

(B) Bulk density.

(C) Chemical composition, including surface coating.

(D) Crystal structure.

(E) Dispersibility.

(F) Molecular structure.

(G) Particle density.

(H) Particle size, size distribution, and surface area.

(I) Physical form and shape, at room temperature and pressure.

(J) Physicochemical properties.

(K) Porosity.

(L) Solubility in water and biologically relevant fluids.

(M) Surface charge.

(N) Surface reactivity.

(7) “Department” means the Department of Toxic Substances
Control.

(8) “Consumer Price Index” means the Consumer Price Index
for All Urban Consumers published by the Bureau of Labor
Statistics.

(b) (1) (A) A manufacturer of juvenile products sold in
California shall indicate whether or not the product contains added
flame retardant chemicals by including the following statement
on begin delete the label described in Section 1126 of Title 4 of the California
Code of Regulations end delete begin insert a label end insert for juvenile products:

begin delete

“This product meets California’s furniture fire safety standard
and:

end delete

begin insert “The State of California has determined that this product does
not pose a serious fire hazard. The state has identified many flame
retardant chemicals as being known to, or strongly suspected of,
adversely impacting human health or development. end insert

begin insert

This product:

end insert

_____contains added flame retardant chemicals

_____contains NO added flame retardant begin delete chemicals end delete begin insert chemicals end insert begin insert ” end insert

begin delete

The State of California has determined that no flammability
standard is needed for this product. The state has identified many
flame retardant chemicals as being known to, or strongly suspected
of, adversely impacting human health or development.”

end delete

A manufacturer of juvenile products sold in California shall
indicate the absence or presence of added flame retardant chemicals
by placing an “X” in one of the appropriate blanks.

(B) This statement shall be in included in the label described in
Section 1126 of Title 4 of the California Code of Regulations in
accordance with the bureau’s regulations for that label.

(2) (A) For sales of juvenile products sold in California via an
Internet Web site, the retailer of juvenile products in California
shall place begin delete the end delete begin insert a end insert point-of-sale sign containing the flame retardant
chemical statement clearly and conspicuously, and in close
proximity to the juvenile product’s price, on each Internet Web
site page that contains a detailed description of the juvenile product
and its price. The point-of-sale sign shall be sized and placed so
as to remain clear and conspicuous to a consumer viewing the
page.

(B) For sales of juvenile products sold in California through
paper catalogs, the retailer of juvenile products in California shall
place begin delete the end delete begin insert a end insert point-of-sale sign containing the flame retardant
chemical statement clearly and conspicuously, and in close
proximity to the juvenile product’s price, on each page that contains
a detailed description of the juvenile product and its price. The
point-of-sale sign shall be sized and placed so as to remain clear
and conspicuous to consumers.

(c) (1) The manufacturer of the juvenile product sold in
California shall retain documentation to show whether flame
retardant chemicals were added. A written statement by the supplier
of each component of a juvenile product begin delete covered by Technical
Bulletin 117-2013 end delete attesting either that flame retardant chemicals
were added or not added shall be sufficient documentation.

(2) The bureau shall ensure compliance with the labeling and
documentation requirements in this section.

(3) (A) Upon request, a manufacturer of a juvenile product sold
in California shall provide to the bureau, within 30 days of the
request, documentation establishing the accuracy of the flame
retardant chemical statement on the label required by subdivision
(b).

(B) The bureau shall assess fines of not less than two thousand
five hundred dollars ($2,500) but not more than fifteen thousand
dollars ($15,000) in accordance with the factors described in
subdivision (d) for the failure of the manufacturer of the juvenile
product to maintain the documentation required by this section,
or for the failure of the manufacturer of the juvenile product to
provide, upon request, the documentation required by this section
to the bureau. These fines shall replace any other fines in this article
for a violation of the documentation requirements of this section.
This subparagraph does not alter or amend any other penalty
otherwise imposed by this article.

(C) A manufacturer of juvenile products sold in California and
component suppliers shall be jointly and severally liable for
violations of the documentation required in this section.

(D) (i) The bureau shall provide the Department of Toxic
Substances Control with a selection of samples from juvenile
products marked “contains NO added flame retardant chemicals”
for testing for the presence of added flame retardant chemicals.
The samples shall be from the components identified in paragraph
(1) of subdivision (a). The bureau shall select samples based on
consultation with the department, taking into account a range of
manufacturers and types of juvenile products. The bureau and the
department shall consult on the tests to be conducted by the
department. The department shall provide the results of any
completed test to the bureau. The bureau shall reimburse the
department for the cost of testing for the presence of added flame
retardant chemicals in juvenile products marked “contains NO
added flame retardant chemicals”.

(ii) No later than August 1 of each fiscal year, the bureau shall
assess available resources and determine the number of tests to be
conducted in the corresponding fiscal year, pursuant to this
subparagraph.

(E) (i) If the department’s testing shows that a juvenile product
labeled as “contains NO added flame retardant chemicals” is
mislabeled because it contains added flame retardant chemicals,
the bureau may assess fines for violations against manufacturers
of the juvenile product and component manufacturers to be held
jointly and severally liable for the violation.

(ii) A fine for a violation of this subparagraph relating to
mislabeling shall be assessed in accordance with the factors
described in subdivision (d) and the following schedule:

(I) The fine for the first violation shall be not less than one
thousand dollars ($1,000) but not more than two thousand five
hundred dollars ($2,500).

(II) The fine for the second violation shall be not less than two
thousand five hundred dollars ($2,500) but not more than five
thousand dollars ($5,000).

(III) The fine for the third violation shall be not less than five
thousand dollars ($5,000) but not more than seven thousand five
hundred dollars ($7,500).

(IV) The fine for any subsequent violation shall be not less than
seven thousand five hundred dollars ($7,500) but not more than
ten thousand dollars ($10,000).

(iii) The fines in clause (ii) shall replace any other fines in this
article for a violation of the testing requirements of this section.
This clause does not alter or amend any other penalty otherwise
imposed by this article.

(iv) If the department’s testing shows that a juvenile product
labeled as “contains NO added flame retardant chemicals” is
mislabeled because it contains added flame retardant chemicals,
in addition to a fine or any other request, the bureau may request
that the label required by subdivision (b) for juvenile products 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 juvenile product.

(v) If the department’s testing shows that a juvenile product
labeled as “contains NO added flame retardant chemicals” is
mislabeled because it contains added flame retardant chemicals,
in addition to a fine or any other request, the bureau may request
additional testing of more products belonging to the same stock
keeping unit (SKU) at the manufacturer’s expense to verify the
accuracy of the label required by subdivision (b) for juvenile
products if the manufacturer wishes to retain the “contains NO
added flame retardant chemicals” designation on the label required
by subdivision (b).

(d) (1) The bureau shall make information about any citation
issued pursuant to this section available to the public on its Internet
Web site.

(2) In determining the amount of the fine for violations of this
section, the bureau shall consider the following factors:

(A) The nature and severity of the violation.

(B) The good or bad faith of the cited person.

(C) The history of previous violations.

(D) Evidence that the violation was willful.

(E) The extent to which the cited person or entity has cooperated
with the bureau.

(3) (A) The bureau shall adjust all minimum and maximum
fines imposed by this section for inflation every five years.

(B) The adjustment shall be equivalent to the percentage, if any,
that the Consumer Price Index at the time of adjustment exceeds
the Consumer Price Index at the time this section goes into effect.
Any increase determined under this paragraph shall be rounded as
follows:

(i) In multiples of ten dollars ($10) in the case of penalties less
than or equal to one hundred dollars ($100).

(ii) In multiples of one hundred dollars ($100) in the case of
penalties greater than one hundred dollars ($100) but less than or
equal to one thousand dollars ($1,000).

(iii) In multiples of one thousand dollars ($1,000) in the case
of penalties greater than one thousand dollars ($1,000).

(4) It shall be the duty of the bureau to receive complaints from
consumers concerning juvenile products sold in California.

(e) The bureau may adopt regulations pursuant to the
Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code) to carry out this section.

SEC. 2.  

Section 19161.4 is added to the Business and
Professions Code, to read:

19161.4.  

The requirements of Section 19161 shall not apply
to juvenile products, as defined in Section 19095.

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.