Amended in Senate June 2, 2015

Amended in Senate May 7, 2015

Amended in Senate April 6, 2015

Senate BillNo. 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 mattress, 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 a permanently affixed 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 a 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 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:

P3    1

SECTION 1.  

Section 19095 is added to the Business and
2Professions Code
, to read:

3

19095.  

(a) For the purposes of this section, the following
4definitions shall apply:

5(1) “Component” means the separate constituent parts of juvenile
6products sold in California, specifically cover fabrics, barrier
7materials, resilient filling materials, and plastic parts.

P4    1(2) “Juvenile product”begin delete includes, but is not limited to,end deletebegin insert means a
2product subject to the Home Furnishings and Thermal Insulation
3Act and intended for use by infants and children under 12 years
4of age, such asend insert
a bassinet, booster seat, infant car seat, changing
5pad, floor play mat, highchair, highchair pad, infant bouncer, infant
6carrier, infant seat, infant swing, infant walker, nursing pad, nursing
7pillow, playpen side pad, playard, portable hook-on chair, stroller,
8children’s nap mat,begin delete baby carrier that is worn by an adult, and anend delete
9begin insert andend insert infant foam crib mattress.begin insert Products subject to the requirements
10of Section 19094 are not subject to the requirements of this section.end insert

11 “Juvenile product” does not include products required to meet
12federal flammability standards contained in Part 1632 or 1633 of
13Title 16 of the Code of Federal Regulations.

14(3) “Added flame retardant chemicals” means flame retardant
15chemicals that are present in any juvenile product or component
16thereof at levels above 1,000 parts per million.

17(4) “Flame retardant chemical” means any chemical or chemical
18compound for which a functional use is to resist or inhibit the
19spread of fire. Flame retardant chemicals include, but are not
20limited to, halogenated, phosphorous-based, nitrogen-based, and
21nanoscale flame retardants, flame retardant chemicals listed as
22“designated chemicals” pursuant to Section 105440 of the Health
23and Safety Code, and any chemical or chemical compound for
24which “flame retardant” appears on the substance Safety Data
25Sheet (SDS) pursuant to Section 1910.1200(g) of Title 29 of the
26Code of Federal Regulations.

27(5) “Chemical” means either of the following:

28(A) An organic or inorganic substance of a particular molecular
29identity, including any combination of those substances occurring,
30in whole or in part, as a result of a chemical reaction or occurring
31in nature, and any element, ion, or uncombined radical, and any
32degradate, metabolite, or reaction product of a substance with a
33particular molecular identity.

34(B) A chemical ingredient, which means a substance comprising
35one or more substances described in subparagraph (A).

36(6) “Molecular identity” means the substance’s properties listed
37below:

38(A) Agglomeration state.

39(B) Bulk density.

40(C) Chemical composition, including surface coating.

P5    1(D) Crystal structure.

2(E) Dispersibility.

3(F) Molecular structure.

4(G) Particle density.

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

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

7(J) Physicochemical properties.

8(K) Porosity.

9(L) Solubility in water and biologically relevant fluids.

10(M) Surface charge.

11(N) Surface reactivity.

12(7) “Department” means the Department of Toxic Substances
13Control.

14(8) “Consumer Price Index” means the Consumer Price Index
15for All Urban Consumers published by the Bureau of Labor
16Statistics.

17(b) (1) (A) A manufacturer of juvenile products sold in
18California shall indicate whether or not the product contains added
19flame retardant chemicals by including the following statement
20on a label permanently affixed to the juvenile product:


22“The State of California has determined that this product does
23not pose a serious fire hazard. The state has identified many flame
24retardant chemicals as being known to, or strongly suspected of,
25adversely impacting human health or development.

26This product:

27_____contains added flame retardant chemicals

28_____contains NO added flame retardant chemicals”


30(B) A manufacturer of juvenile products sold in California shall
31indicate the absence or presence of added flame retardant chemicals
32by placing an “X” in one of the appropriate blanks.

33(2) (A) For sales of juvenile products sold in California via an
34Internet Web site, the retailer of juvenile products in California
35shall place a point-of-sale sign containing the flame retardant
36chemical statement clearly and conspicuously, and in close
37proximity to the juvenile product’s price, on each Internet Web
38site page that contains a detailed description of the juvenile product
39and its price. The point-of-sale sign shall be sized and placed so
P6    1as to remain clear and conspicuous to a consumer viewing the
2page.

3(B) For sales of juvenile products sold in California through
4paper catalogs, the retailer of juvenile products in California shall
5place a point-of-sale sign containing the flame retardant chemical
6statement clearly and conspicuously, and in close proximity to the
7juvenile product’s price, on each page that contains a detailed
8description of the juvenile product and its price. The point-of-sale
9sign shall be sized and placed so as to remain clear and conspicuous
10to consumers.

11(c) (1) The manufacturer of the juvenile product sold in
12California shall retain documentation to show whether flame
13retardant chemicals were added. A written statement by the supplier
14of each component of a juvenile product attesting either that flame
15retardant chemicals were added or not added shall be sufficient
16 documentation.

17(2) The bureau shall ensure compliance with the labeling and
18documentation requirements in this section.

19(3) (A) Upon request, a manufacturer of a juvenile product sold
20in California shall provide to the bureau, within 30 days of the
21request, documentation establishing the accuracy of the flame
22retardant chemical statement on the label required by subdivision
23(b).

24(B) The bureau shall assess fines of not less than two thousand
25five hundred dollars ($2,500) but not more than fifteen thousand
26dollars ($15,000) in accordance with the factors described in
27subdivision (d) for the failure of the manufacturer of the juvenile
28product to maintain the documentation required by this section,
29or for the failure of the manufacturer of the juvenile product to
30provide, upon request, the documentation required by this section
31to the bureau. These fines shall replace any other fines in this article
32for a violation of the documentation requirements of this section.
33This subparagraph does not alter or amend any other penalty
34otherwise imposed by this article.

35(C) A manufacturer of juvenile products sold in California and
36component suppliers shall be jointly and severally liable for
37violations of the documentation required in this section.

38(D) (i) The bureau shall provide the Department of Toxic
39Substances Control with a selection of samples from juvenile
40products marked “contains NO added flame retardant chemicals”
P7    1for testing for the presence of added flame retardant chemicals.
2The samples shall be from the components identified in paragraph
3(1) of subdivision (a). The bureau shall select samples based on
4consultation with the department, taking into account a range of
5manufacturers and types of juvenile products. The bureau and the
6department shall consult on the tests to be conducted by the
7department. The department shall provide the results of any
8completed test to the bureau. The bureau shall reimburse the
9department for the cost of testing for the presence of added flame
10retardant chemicals in juvenile products marked “contains NO
11added flame retardant chemicals.”

12(ii) No later than August 1 of each fiscal year, the bureau shall
13assess available resources and determine the number of tests to be
14conducted in the corresponding fiscal year, pursuant to this
15subparagraph.

16(E) (i) If the department’s testing shows that a juvenile product
17labeled as “contains NO added flame retardant chemicals” is
18mislabeled because it contains added flame retardant chemicals,
19the bureau may assess fines for violations against manufacturers
20of the juvenile product and component manufacturers to be held
21jointly and severally liable for the violation.

22(ii) A fine for a violation of this subparagraph relating to
23mislabeling shall be assessed in accordance with the factors
24described in subdivision (d) and the following schedule:

25(I) The fine for the first violation shall be not less than one
26thousand dollars ($1,000) but not more than two thousand five
27hundred dollars ($2,500).

28(II) The fine for the second violation shall be not less than two
29thousand five hundred dollars ($2,500) but not more than five
30thousand dollars ($5,000).

31(III) The fine for the third violation shall be not less than five
32thousand dollars ($5,000) but not more than seven thousand five
33hundred dollars ($7,500).

34(IV) The fine for any subsequent violation shall be not less than
35seven thousand five hundred dollars ($7,500) but not more than
36ten thousand dollars ($10,000).

37(iii) The fines in clause (ii) shall replace any other fines in this
38article for a violation of the testing requirements of this section.
39This clause does not alter or amend any other penalty otherwise
40imposed by this article.

P8    1(iv) If the department’s testing shows that a juvenile product
2labeled as “contains NO added flame retardant chemicals” is
3mislabeled because it contains added flame retardant chemicals,
4in addition to a fine or any other request, the bureau may request
5that the label required by subdivision (b) for juvenile products that
6belong to the same stock keeping unit (SKU) currently produced
7by the manufacturer be corrected to reflect that flame retardant
8chemicals are added to the juvenile product.

9(v) If the department’s testing shows that a juvenile product
10labeled as “contains NO added flame retardant chemicals” is
11mislabeled because it contains added flame retardant chemicals,
12in addition to a fine or any other request, the bureau may request
13additional testing of more products belonging to the same stock
14keeping unit (SKU) at the manufacturer’s expense to verify the
15accuracy of the label required by subdivision (b) for juvenile
16products if the manufacturer wishes to retain the “contains NO
17added flame retardant chemicals” designation on the label required
18by subdivision (b).

19(d) (1) The bureau shall make information about any citation
20issued pursuant to this section available to the public on its Internet
21Web site.

22(2) In determining the amount of the fine for violations of this
23section, the bureau shall consider the following factors:

24(A) The nature and severity of the violation.

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

26(C) The history of previous violations.

27(D) Evidence that the violation was willful.

28(E) The extent to which the cited person or entity has cooperated
29with the bureau.

30(3) (A) The bureau shall adjust all minimum and maximum
31fines imposed by this section for inflation every five years.

32(B) The adjustment shall be equivalent to the percentage, if any,
33that the Consumer Price Index at the time of adjustment exceeds
34the Consumer Price Index at the time this section goes into effect.
35Any increase determined under this paragraph shall be rounded as
36follows:

37(i) In multiples of ten dollars ($10) in the case of penalties less
38than or equal to one hundred dollars ($100).

P9    1(ii) In multiples of one hundred dollars ($100) in the case of
2penalties greater than one hundred dollars ($100) but less than or
3equal to one thousand dollars ($1,000).

4(iii) In multiples of one thousand dollars ($1,000) in the case
5of penalties greater than one thousand dollars ($1,000).

6(4) It shall be the duty of the bureau to receive complaints from
7consumers concerning juvenile products sold in California.

8(e) The bureau may adopt regulations pursuant to the
9Administrative Procedure Act (Chapter 3.5 (commencing with
10Section 11340) of Part 1 of Division 3 of Title 2 of the Government
11Code) to carry out this section.

12

SEC. 2.  

Section 19161.4 is added to the Business and
13Professions Code
, to read:

14

19161.4.  

The requirements of Section 19161 shall not apply
15to juvenile products, as defined in Section 19095.

16

SEC. 3.  

No reimbursement is required by this act pursuant to
17Section 6 of Article XIII B of the California Constitution because
18the only costs that may be incurred by a local agency or school
19district will be incurred because this act creates a new crime or
20infraction, eliminates a crime or infraction, or changes the penalty
21for a crime or infraction, within the meaning of Section 17556 of
22the Government Code, or changes the definition of a crime within
23the meaning of Section 6 of Article XIII B of the California
24Constitution.



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