Government Regulation
January 6, 2021
COVID-19 Regulatory Relief and Work from Home Safety Act
National Flammability Standard for Upholstered Furniture to Take Effect in June 2021
Tuesday, January 5, 2021
Congress has passed a law mandating nationwide compliance with California’s flammability standard for upholstered furniture. The “COVID-19 Regulatory Relief and Work from Home Safety Act,” included in the massive appropriations bill passed by Congress and signed into law by the President on December 27, 2020, incorporates the provisions previously proposed in the Safer Occupancy Furniture Flammability Act (SOFFA), a bill widely supported by the furniture industry.
The Consumer Product Safety Commission (CPSC) has been studying furniture flammability issues for decades, but was unable to reach a consensus on how to approach a regulation. Historically, industry, consumer groups, and regulators have disagreed on whether furniture should be required to withstand an “open flame” or instead be “smolder-resistant.”
In recent years, concern has grown over the consumer exposure to chemical flame retardants, which many speculated were added to furniture to make products resistant to open flames. In 2013, in response to that concern, California issued TB 117-2013, rolling back the state’s “open flame” requirement to a “smolder” test more easily met without the use of added flame retardants. Now, TB 117-2013’s “smolder” test will be the law nationwide.
Key Provisions
- Compliance date. Beginning June 25, 2021, all upholstered seating furniture imported or sold in the United States must comply with the flammability test specified by California Technical Bulletin 117-2013 (TB 117-2013).
- Labeling requirement. All upholstered furniture must bear a permanent label that includes the statement “Complies with U.S. CPSC requirements for upholstered furniture flammability.”
- Exemption for bedding products. The law will not apply to bedding products, including mattresses and foundations (which are already subject to separate federal flammability standards).
- No general certificate of conformity or recordkeeping requirements. The law also expressly exempts upholstered seating furniture from the requirement to issue a General Certificate of Conformity. Instead, the prescribed permanent label will operate as the certification that a product is compliant with TB 117-2013.
Considerations for Companies
Companies that manufacture or sell upholstered furniture should begin planning for compliance with TTB 117-2013. While those companies selling upholstered furniture in California are already required to comply with the TB 117-2013’s test procedures, the federal law adds a new mandatory labeling requirement. Companies that do not already sell products compliant with TTB 117-2013 should familiarize themselves with the test procedures. We recommend consideration of the following steps:
- Communicate with suppliers. Retailers and importers should communicate with upstream suppliers and manufacturers to inform them of the new law and its requirements. Particularly with the supply chain still feeling the disruptive effects of COVID-19, preparation and communication are key.
- Create processes to ensure compliance. Manufacturers, importers, and retailers should evaluate their compliance procedures to ensure covered upholstered furniture is tested and labeled before distribution and sale. Quality assurance and audit policies should be developed and regularly performed to check for any gaps in compliance.
- Consider recordkeeping policies. While the new law does not set any recordkeeping requirements, companies may voluntarily set their own policies. Importers in particular should consider requiring overseas manufacturers to provide proof of passing test results and certify that products are properly labeled before shipment. Because overseas manufacturers are typically beyond the CPSC’s reach, importers can be held liable for untested, unlabeled, or falsely certified products. Due diligence can help mitigate the risk that a noncompliant product will cause compliance and enforcement difficulties for importers.
- Evaluate current inventory. The new law does not explicitly allow any “sell-through” period through which companies may sell products that have either not been tested or are not labeled as required by the law. Companies should take stock of their current inventory and consider testing and labeling any inventory they will not be able to sell before June 25, 2021.
December 7, 2020
Hauthaway to Pay Fine
Lynn company settles allegations it illegally discharged industrial stormwater into Saugus River
Attorney General Maura Healey issued the following press release
A Lynn-based chemical manufacturing company has agreed to pay a total of $302,000 – the majority of which will fund local water quality improvement projects – to settle allegations that it violated federal regulations designed to prevent the accidental release of toxic chemicals into the environment and that it illegally discharged industrial stormwater into the Saugus River, Attorney General Maura Healey announced.
“This company’s actions risked the health of workers and nearby residents of an environmental justice community and threatened the water quality of the Saugus River,” Healey said. “This settlement holds this company accountable for violating important laws that protect public health and our clean air and water and provides funding for local environmental projects.”
“I am grateful for the work of Attorney General Maura Healey and her Environmental Protection Division staff for their support and vigilant work that protects the residents of Lynn,” said Lynn Mayor Thomas McGee. “Funding made available through this settlement will help supplement the city’s ongoing efforts to mitigate flooding hazards and improve stormwater quality in the Strawberry Brook Watershed. Funds will allow us to significantly increase the scale and number of low impact design elements as part of an ongoing pilot project targeting the watershed. The project will replicate natural processes in managing stormwater while offering co-benefits to our community by introducing additional landscaping and street trees in our neighborhoods, which in turn reduce the heat island effect, improving air quality, and otherwise enhancing our public spaces. I look forward to seeing the positive effects of this project for our community and our residents.”
The consent decree, filed with the United States District Court for the District of Massachusetts and pending court approval, settles allegations that C.L. Hauthaway & Sons, Inc. violated the federal Clean Air Act at its Lynn manufacturing facility when it failed to appropriately plan for the prevention and response to accidental release of toluene diisocyanate (TDI), an extremely hazardous chemical at the facility.
The consent decree also settles allegations that the company violated the federal Clean Water Act when it discharged polluted stormwater into the Saugus River without a permit. The facility is adjacent to the Saugus River and is close to several residences.
Lynn has been designated by Massachusetts and the U.S. Environmental Protection Agency (EPA) as an environmental justice community disproportionately subjected to environmental harms and risks.
According to the complaint, TDI is highly toxic when inhaled, ingested or exposed to the skin or eyes, and it is capable of contaminating water. The company used the chemical in amounts above the applicable threshold, and it did not prepare and implement a risk management plan as required by the Clean Air Act. The AG’s complaint does not allege that there was a release of TDI to the environment.
Stormwater pollution is recognized as the largest threat to water quality in the state. Certain facilities like C.L. Hauthaway’s must obtain specific authorization for stormwater discharges, properly monitor and control stormwater discharges, report stormwater sampling results to U.S. Environmental Protection Agency (EPA), and comply with state water protection laws. The AG’s Office alleges that the company failed to take these required actions at its Lynn facility.
The company is located on the Saugus River – a state-listed impaired waterbody – within a flood zone and in an area designated by the state as the Rumney Marshes Area of Critical Environmental Concern. Impaired waterbodies have been designated by the state as needing additional pollution regulations. The Rumney Marshes Area of Critical Environmental Concern has been characterized as needing heightened environmental protection because of its significant unique natural resources.
Under the terms of the consent decree, the company is required to pay $240,000 to the City of Lynn to build green infrastructure and improve water quality in the vicinity of the facility. It is also required to pay the state $62,000 to offset the costs of the AG’s enforcement efforts and for future monitoring of the company’s compliance with the consent decree.
The announcement is part of a civil enforcement initiative out of AG Healey’s Environmental Protection Division that focuses on combatting pollution by enforcing the requirements of the federal Clean Water Act and the federal Clean Air Act in Massachusetts, along with applicable state environmental laws. This will be the seventh settlement from the initiative since its inception in 2018. These settlements have recovered nearly $600,000 for local environmental improvement projects and civil penalties.
This case was handled by Special Assistant Attorney General Nora Chorover and Attorney Emily Mitchell, both of AG Healey’s Environmental Protection Division.
December 7, 2020
Hauthaway to Pay Fine
Lynn company settles allegations it illegally discharged industrial stormwater into Saugus River
Attorney General Maura Healey issued the following press release
A Lynn-based chemical manufacturing company has agreed to pay a total of $302,000 – the majority of which will fund local water quality improvement projects – to settle allegations that it violated federal regulations designed to prevent the accidental release of toxic chemicals into the environment and that it illegally discharged industrial stormwater into the Saugus River, Attorney General Maura Healey announced.
“This company’s actions risked the health of workers and nearby residents of an environmental justice community and threatened the water quality of the Saugus River,” Healey said. “This settlement holds this company accountable for violating important laws that protect public health and our clean air and water and provides funding for local environmental projects.”
“I am grateful for the work of Attorney General Maura Healey and her Environmental Protection Division staff for their support and vigilant work that protects the residents of Lynn,” said Lynn Mayor Thomas McGee. “Funding made available through this settlement will help supplement the city’s ongoing efforts to mitigate flooding hazards and improve stormwater quality in the Strawberry Brook Watershed. Funds will allow us to significantly increase the scale and number of low impact design elements as part of an ongoing pilot project targeting the watershed. The project will replicate natural processes in managing stormwater while offering co-benefits to our community by introducing additional landscaping and street trees in our neighborhoods, which in turn reduce the heat island effect, improving air quality, and otherwise enhancing our public spaces. I look forward to seeing the positive effects of this project for our community and our residents.”
The consent decree, filed with the United States District Court for the District of Massachusetts and pending court approval, settles allegations that C.L. Hauthaway & Sons, Inc. violated the federal Clean Air Act at its Lynn manufacturing facility when it failed to appropriately plan for the prevention and response to accidental release of toluene diisocyanate (TDI), an extremely hazardous chemical at the facility.
The consent decree also settles allegations that the company violated the federal Clean Water Act when it discharged polluted stormwater into the Saugus River without a permit. The facility is adjacent to the Saugus River and is close to several residences.
Lynn has been designated by Massachusetts and the U.S. Environmental Protection Agency (EPA) as an environmental justice community disproportionately subjected to environmental harms and risks.
According to the complaint, TDI is highly toxic when inhaled, ingested or exposed to the skin or eyes, and it is capable of contaminating water. The company used the chemical in amounts above the applicable threshold, and it did not prepare and implement a risk management plan as required by the Clean Air Act. The AG’s complaint does not allege that there was a release of TDI to the environment.
Stormwater pollution is recognized as the largest threat to water quality in the state. Certain facilities like C.L. Hauthaway’s must obtain specific authorization for stormwater discharges, properly monitor and control stormwater discharges, report stormwater sampling results to U.S. Environmental Protection Agency (EPA), and comply with state water protection laws. The AG’s Office alleges that the company failed to take these required actions at its Lynn facility.
The company is located on the Saugus River – a state-listed impaired waterbody – within a flood zone and in an area designated by the state as the Rumney Marshes Area of Critical Environmental Concern. Impaired waterbodies have been designated by the state as needing additional pollution regulations. The Rumney Marshes Area of Critical Environmental Concern has been characterized as needing heightened environmental protection because of its significant unique natural resources.
Under the terms of the consent decree, the company is required to pay $240,000 to the City of Lynn to build green infrastructure and improve water quality in the vicinity of the facility. It is also required to pay the state $62,000 to offset the costs of the AG’s enforcement efforts and for future monitoring of the company’s compliance with the consent decree.
The announcement is part of a civil enforcement initiative out of AG Healey’s Environmental Protection Division that focuses on combatting pollution by enforcing the requirements of the federal Clean Water Act and the federal Clean Air Act in Massachusetts, along with applicable state environmental laws. This will be the seventh settlement from the initiative since its inception in 2018. These settlements have recovered nearly $600,000 for local environmental improvement projects and civil penalties.
This case was handled by Special Assistant Attorney General Nora Chorover and Attorney Emily Mitchell, both of AG Healey’s Environmental Protection Division.
December 2, 2020
Potential Regulation
California Considers Listing Titanium Dioxide Nanoparticles and Other Chemicals as Reproductive Toxicants
- December 1, 2020
- Government Affairs
- Contact: Riaz Zaman
If OEHHA finalizes listing, manufacturers of products containing one or more of these chemicals must provide warnings on product labels within one year. Under Prop 65, individuals must provide warnings prior to exposure to a chemical identified by the State of California to cause cancer or reproductive harm. The duty to warn applies to most individuals causing an exposure, including product manufacturers, employers and individuals causing exposures in an affected area. Prop 65 requires the State of California maintain a list of chemicals that are known to the State to cause cancer, birth defects or other reproductive harm, or both. The list includes over 900 chemicals since it was published in 1987.
The state can add chemicals to the Prop 65 list using four mechanisms: 1) the State’s qualified expert mechanism; 2) formally required to label mechanism; 3) labor code listing mechanism; and 4) authoritative body mechanism.
Last month, ACA filed comments with OEHHA urging the agency not to list titanium dioxide nanoparticles under Prop 65.
ACA Comments
In its comments, ACA notes that paint manufacturers may use nanoscale titanium dioxide as a filter for ultra-violet light to protect binding agents in a paint matrix; however, ACA underscored that the extent of use in paints is unknown and that it may not be common.
Because no studies associate reproductive toxicity with use of products containing nanoscale titanium dioxide, ACA asserted its belief that a Prop 65 listing is not supported at this time. This is especially true for use in paint products, since any nanoscale material is bound in a matrix and rendered unavailable during use. Any releases from weathering, sanding, demolition or disposal are expected to be negligible.
Particles bound in a paint matrix do not pose a hazard
ACA urged DARTIC to consider that wetted mixtures, such as paint, containing hazardous chemicals typically pose no hazard. OEHHA has recognized that particles bound in a paint matrix do not pose a hazard during application. Studies cited in the prioritization document do not support the proposition that nanoscale titanium dioxide in paint would increase the likelihood of reproductive toxicity in users of paint products. OEHHA’s listing of crystalline silica and titanium dioxide as a carcinogen in Proposition 65, recognize that chemicals bound in a paint matrix do not pose a hazard. In considering availability for exposure of titanium dioxide, the International Agency for Research on Cancer (IARC) recognizes that “No significant exposure to primary particles of titanium dioxide is thought to occur during the use of products in which titanium dioxide is bound to other materials, such as in paints.”
ACA also noted that IARC reached a similar conclusion when considering carcinogenicity of carbon black: “End-users of these products (rubber, ink or paint) are unlikely to be exposed to airborne carbon black particles, which are bound within the product matrix.”
As such, ACA asserts that listing titanium dioxide nanomaterials for use in paint products
under Prop 65 is unwarranted.
Nanoscale titanium dioxide does not pose a significant hazard during abrasion
ACA stressed to OEHHA that any concern related to particles in wetted mixtures usually occur from sanding and abrasion after application. OEHHA’s listing of titanium dioxide and crystalline silica as Proposition 65 carcinogens is limited to “airborne, unbound particles of respirable size.” Moreover, since particles are bound in a matrix, any respirable particles typically do not contain pure form of the particle at issue, minimizing any risk posed by that chemical.
ACA pointed to a study that considers hazards associated with nanoscale titanium dioxide in paint particles where the authors conclude that hazards of nanoscale titanium dioxide in dried paint particles cannot be predicted based on hazards of pristine nanoscale titanium dioxide. The authors also note that amounts of nanoscale titanium dioxide from dried paint particles are negligible.
Specification of particle dimensions would assist in identifying products with nanoscale titanium dioxide
For clarity, ACA suggested that OEHHA harmonize California’s definition of nanoscale titanium dioxide with particle parameters identified in the U.S. Environmental Protection Agency’s (EPA) Nanoscale Materials Reporting Rule. The EPA definition specifies that:
- Particles manufactured or processed in a form where any particles, including aggregates and agglomerates, are in the size range of 1-100 nanometers (nm) in at least one dimension; and
- Are solid at 25 °C and standard atmospheric pressure.
Companies applied this definition in 2017 when identifying reportable products under the rule. Should DARTIC recommend listing, harmonizing California’s definition would assist companies that are already familiar with USEPA’s definition. U.S. EPA also provides some additional clarity by noting particle size must apply to at least one dimension.
For the aforementioned reasons, including insufficiency of studies indicating reproductive toxicity of nanoscale titanium dioxide as used in products, ACA urged DARTIC not to recommend listing nanoscale titanium dioxide under Prop 65 at this time.
Contact ACA’s Riaz Zaman for more information.
December 2, 2020
Potential Regulation
California Considers Listing Titanium Dioxide Nanoparticles and Other Chemicals as Reproductive Toxicants
- December 1, 2020
- Government Affairs
- Contact: Riaz Zaman
If OEHHA finalizes listing, manufacturers of products containing one or more of these chemicals must provide warnings on product labels within one year. Under Prop 65, individuals must provide warnings prior to exposure to a chemical identified by the State of California to cause cancer or reproductive harm. The duty to warn applies to most individuals causing an exposure, including product manufacturers, employers and individuals causing exposures in an affected area. Prop 65 requires the State of California maintain a list of chemicals that are known to the State to cause cancer, birth defects or other reproductive harm, or both. The list includes over 900 chemicals since it was published in 1987.
The state can add chemicals to the Prop 65 list using four mechanisms: 1) the State’s qualified expert mechanism; 2) formally required to label mechanism; 3) labor code listing mechanism; and 4) authoritative body mechanism.
Last month, ACA filed comments with OEHHA urging the agency not to list titanium dioxide nanoparticles under Prop 65.
ACA Comments
In its comments, ACA notes that paint manufacturers may use nanoscale titanium dioxide as a filter for ultra-violet light to protect binding agents in a paint matrix; however, ACA underscored that the extent of use in paints is unknown and that it may not be common.
Because no studies associate reproductive toxicity with use of products containing nanoscale titanium dioxide, ACA asserted its belief that a Prop 65 listing is not supported at this time. This is especially true for use in paint products, since any nanoscale material is bound in a matrix and rendered unavailable during use. Any releases from weathering, sanding, demolition or disposal are expected to be negligible.
Particles bound in a paint matrix do not pose a hazard
ACA urged DARTIC to consider that wetted mixtures, such as paint, containing hazardous chemicals typically pose no hazard. OEHHA has recognized that particles bound in a paint matrix do not pose a hazard during application. Studies cited in the prioritization document do not support the proposition that nanoscale titanium dioxide in paint would increase the likelihood of reproductive toxicity in users of paint products. OEHHA’s listing of crystalline silica and titanium dioxide as a carcinogen in Proposition 65, recognize that chemicals bound in a paint matrix do not pose a hazard. In considering availability for exposure of titanium dioxide, the International Agency for Research on Cancer (IARC) recognizes that “No significant exposure to primary particles of titanium dioxide is thought to occur during the use of products in which titanium dioxide is bound to other materials, such as in paints.”
ACA also noted that IARC reached a similar conclusion when considering carcinogenicity of carbon black: “End-users of these products (rubber, ink or paint) are unlikely to be exposed to airborne carbon black particles, which are bound within the product matrix.”
As such, ACA asserts that listing titanium dioxide nanomaterials for use in paint products
under Prop 65 is unwarranted.
Nanoscale titanium dioxide does not pose a significant hazard during abrasion
ACA stressed to OEHHA that any concern related to particles in wetted mixtures usually occur from sanding and abrasion after application. OEHHA’s listing of titanium dioxide and crystalline silica as Proposition 65 carcinogens is limited to “airborne, unbound particles of respirable size.” Moreover, since particles are bound in a matrix, any respirable particles typically do not contain pure form of the particle at issue, minimizing any risk posed by that chemical.
ACA pointed to a study that considers hazards associated with nanoscale titanium dioxide in paint particles where the authors conclude that hazards of nanoscale titanium dioxide in dried paint particles cannot be predicted based on hazards of pristine nanoscale titanium dioxide. The authors also note that amounts of nanoscale titanium dioxide from dried paint particles are negligible.
Specification of particle dimensions would assist in identifying products with nanoscale titanium dioxide
For clarity, ACA suggested that OEHHA harmonize California’s definition of nanoscale titanium dioxide with particle parameters identified in the U.S. Environmental Protection Agency’s (EPA) Nanoscale Materials Reporting Rule. The EPA definition specifies that:
- Particles manufactured or processed in a form where any particles, including aggregates and agglomerates, are in the size range of 1-100 nanometers (nm) in at least one dimension; and
- Are solid at 25 °C and standard atmospheric pressure.
Companies applied this definition in 2017 when identifying reportable products under the rule. Should DARTIC recommend listing, harmonizing California’s definition would assist companies that are already familiar with USEPA’s definition. U.S. EPA also provides some additional clarity by noting particle size must apply to at least one dimension.
For the aforementioned reasons, including insufficiency of studies indicating reproductive toxicity of nanoscale titanium dioxide as used in products, ACA urged DARTIC not to recommend listing nanoscale titanium dioxide under Prop 65 at this time.
Contact ACA’s Riaz Zaman for more information.
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