On August 29, 2018, despite industry criticism, the California state legislature passed AB 2998 (the “Bill”), which will require that levels of chemical flame retardants in covered products be below 1,000 parts per million. The Bill, which the governor is expected to sign into law, states that starting January 1, 2020, distributing children’s products, mattresses and upholstered furniture containing most chemical flame retardants will be illegal in the state of California. Samples of covered products sold to consumers will be provided to California’s Department of Toxic Substances Control for testing, and if a product is found to be noncompliant, a fine may be assessed against the manufacturer, distributor and/or retailer.

The Bill is the latest in a series of legislative actions taken in California amid concerns that the furniture industry has been using chemical flame retardants—which the legislature believes pose a number of health risks to consumers—in order to meet California’s strict flammability standards. In 2013, the state rolled back the requirement that upholstered furniture be able to withstand an “open flame,” requiring instead that furniture be smolder-resistant only—a standard more easily met without the use of added chemical flame retardants. Concerned that some manufacturers were still using chemical flame retardants despite the updated standard, the California legislature made a number of findings in the Bill to support the new ban, including that the federal government has failed to adequately regulate the use of flame retardant chemicals and that those chemicals are not needed to prevent fire safety. Although the Bill was widely supported by consumer safety advocacy organizations, industry groups opposed the new Bill, pointing out that the blanket ban eliminates critical fire safety features in consumer products.

California is not the first state to enact a ban on chemical flame retardants. Both Maine and Rhode Island have similar laws, but California’s is the first in the country to include mattresses. An earlier version of the Bill would have extended the ban to all components of a mattress, including mattress thread, but a late amendment limited the ban’s application to just mattress foam. Notably, the Bill will also require the International Sleep Products Association to conduct a survey of mattress producers every three years to collect data on materials used in mattress components designed to meet flammability standards. All mattress producers registered with California’s Bureau of Electronic and Appliance Repair, Home Furnishing, and Thermal Insulation will be required to respond to the survey, and any producers who fail to respond to the survey will be identified on a public list.

California’s new ban comes amid reports that the Consumer Product Safety Commission (“CPSC”) is planning to take action on developing a standard for the flammability of upholstered furniture in 2019. While the CPSC has studied the issue for over 15 years without finalizing a rule, it took an important step forward in May, when it hosted a technical seminar during which it solicited feedback from industry representatives about flammability test methods and various options for a proposed federal rule. A proposed course of action is expected to be published this fall, with the formal rulemaking process likely commencing sometime in 2019. Any new rule is likely to mean additional testing, certification and recordkeeping obligations for manufacturers, importers, distributors and retailers who sell upholstered furniture in the United States.

While the CPSC will certainly look to California’s upholstered furniture flammability standards for guidance throughout any rulemaking process, whether it will adopt California’s new ban on chemical flame retardants is less clear. In September 2017, the CPSC voted to begin the process of developing a ban on organohalogen flame retardants, but that effort stalled when the CPSC leadership changed later that same month. California’s new law may prompt renewed interest at the CPSC in a ban on certain chemical flame retardants, and the CSPC will likely face pressure from consumer safety advocacy groups to consider one in connection with developing any standard for the flammability of upholstered furniture.

Although California’s ban on chemical flame retardants will not take effect until January 1, 2020, companies in the retail industry should begin taking steps now to ensure compliance, with careful attention paid to production and shipping timelines. And because the CPSC has signaled that it will likely take its own action on a standard for the flammability of upholstered furniture in the next year, companies should take the time to review their internal quality assurance and recordkeeping procedures to prepare for the additional compliance obligations a federal flammability standard will impose.