A Sacramento Superior Court judge has rejected a legal challenge by a major flame retardant manufacturer to overturn California’s new flammability standard, dismissing the lawsuit in its entirety.
TB-117-2103, which took effect at the beginning of this year, allows furniture manufacturers to produce upholstered furniture without chemical flame retardants. The revised standard was fiercely opposed by chemical flame retardant manufacturers, but ultimately adopted by California’s Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation.
Sacramento County Superior Court Judge Michael Kenny ruled that state officials acted within their authority in adopting a new flammability standard.
In January, Chemtura Corp., a manufacturer of flame retardant chemicals, filed a complaint that alleges the Bureau acted outside its authority when it adopted the new flammability standard.
Kenny considered arguments from the Bureau, Chemtura, as well as several organizations that intervened in the action.
In his decision, Judge Kenny ruled that the Bureau did not exceed its statutory authority when it adopted TB 17-2013. Chemtura argued that the new flammability standard violates California Business and Professions Code Section 19161, the statute which charges the Bureau with enforcing and administering the Home Furnishings Act, which regulates the flammability of furniture.
Judge Kenny determined the legislative intent of the 2006 amendment to Section 19161 was to bring the statute into compliance with the new federal open flame standard promulgated by the Consumer Product Safety Commission (CPSC).
“In amending the language of section 19161 from allowing the Bureau to determine the definition of ‘fire retardant’ and issue all regulations necessary, the legislature indicated that the proposed bill 1849 would “change the criteria for fire retardant mattresses and mattress sets to the standards for resistance to open-flame test adopted by the United States Consumer Product Safety Commission,” Judge Kenny wrote.
The bill would require “other bedding products that the Bureau determines contribute to mattress fires comply with regulations adopted by it,” he added.
Judge Kenny observed “there is no mention of changing the standard for fire retardance for furniture other than mattresses” in the bill. “Aside from the wording of the statute, using the phrase ‘as used in this section,’ there is no indication that the Legislature intended to make any modifications with regard to the fire resistance standards concerning seating furniture,” Judge Kenny wrote. “It appears that their only concern was making sure California complied with the new federal open-flame standard promulgated for protecting from mattress fires.”
Judge Kenny emphasized that although the “plain language” of Section 19161 requires seating furniture to comply with the federal 30-minute open flame standard, the purpose of the standard is to reduce deaths and injuries associated with mattress fires by limiting the
size of a fire generated by a mattress set during a 30-minute test. The CPSC specifically ex-cluded upholstered furniture from the definition of a mattress, Judge Kenny wrote.
The Bureau argued that the CPSC test parameters assume a person is lying in a bed. However, seating furniture comes in a wide array of sizes and configurations. To try and adapt the CPSC test to seating furniture would result in “unstandardized results, defeating the purpose of having a fire standard,” the Bureau asserted.
Judge Kenny rejected Chemtura’s request to rescind TB-117-2013, noting the company is also asking the court to reinstate its predecessor, TB-117.
“TB-117 institutes a 12-second exposure to open flame test, not the 30-minute test required by the federal mattress standard. Consequently, Petitioner’s requested relief is inconsistent with its insistence that the federal 30-minute standard applies to all furniture, including seating furniture. Petitioner attempts to argue that section 19161 does not require compliance with the [CPSC] test, just the standards, i.e., an open flame resistant concept. This does not match the plain meaning reading of the statute Petitioner espouses. As TB-117 does not comply with the federal test, a reinstatement of TB-117 cannot meet he plain language of section 19161, Judge Kenny ruled.
“Applying the plain meaning of the statute would produce absurd results and appears to be contrary to the legislative intent behind the 2006 amendment. To read the statute as requiring all furniture to comply with the federal mattress standard leaves the Bureau with an unworkable standard for seating furniture. It appears the intent was to require compliance with the federal open-flame standard for mattresses and continue to give the Bureau the discretion to adopt appropriate regulations for seating furniture. There does not appear to be any other requirement that the Bureau adopt a particular test, or use a particular standard in determining fire retardance,” Judge Kenny ruled.
The California Professional Firefighters, Center for Environmental Health, Friends of The Earth, Natural Resources Defense Council, and Physicians for Social Responsibility-Los Angeles intervened in the case.
Bob Schoenfeld, Compliance officer at Scandinavian Designs, voiced his support for the decision in his Facebook page.
“This ruling by Judge Kenny is another step in the efforts of concerned furniture manufacturers and retailers, many of whom have been fighting to rid California of these dangerous fire retardant chemicals since 1976 when CAL-117 was first introduced. Now these dangerous flame retardant chemicals appear on the OEHHA/PROP 65 list of chemicals “Known to the State of California to cause cancer and/or reproductive harm. I, applaud this decision.”
Chemtura expressed its disappointment in a prepared statement:
“We are disappointed that the court did not rule that the California Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation overstepped its authority by narrowing the scope of the standard to eliminate open flame testing and by attempting to address an issue that clearly is the purview of professionals at the California Department of Toxic Substances Control. The real issue here is protecting the public from regulatory actions that jeopardize consumer fire safety,” the company said.
“We are studying the decision and will consider whether an appeal is the best way to promote high fire safety for consumers in California.”
The case cited by the article is: Chemtura Corp. v. Denise D. Brown, (Sacramento Sup. Ct. Case No. 34-2014-8001731-CU-WM-GDS).