Cal. BPC § 19094 — California Code / Code bpc / Division 8 / Chapter 3 / Article 5 / Section 19094
Section 19094
Status: in_force

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

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

(2) “Covered products” means any flexible polyurethane foam or upholstered or reupholstered furniture sold in California that is required to meet the test requirements set forth in Technical Bulletin 117-2013, entitled “Requirements, Test Procedure and Apparatus for Testing the Smolder Resistance of Materials Used in Upholstered Furniture.”

(3) “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.

(4) “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).

(5) “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.

(6) “Added flame-retardant chemicals” means flame-retardant chemicals that are present in any covered product or component thereof at levels above 1,000 parts per million.

(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 manufacturer of covered products shall indicate whether or not the product contains added flame-retardant chemicals by including the following “flame-retardant chemical statement” on the label described in Section 1374.3 of Title 4 of the California Code of Regulations for covered products:

“The upholstery materials in this product:

_____contain added flame-retardant chemicals

_____contain NO added flame-retardant chemicals

The State of California has updated the flammability standard and determined that the fire safety requirements for this product can be met without adding flame-retardant chemicals. The state has identified many flame-retardant chemicals as being known to, or strongly suspected of, adversely impacting human health or development.”

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

(2) This statement shall be included in the label described in Section 1374.3 of Title 4 of the California Code of Regulations in accordance with the bureau’s regulations for that label. The statement need not be in all capital letters, and shall follow the statement required by Section 1374.3 of Title 4 of the California Code of Regulations.

(c) (1) The bureau shall ensure compliance with the labeling requirements in this section.

(2) (A) The bureau shall provide the Department of Toxic Substances Control with a selection of samples from covered products marked “contain 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 covered 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 covered products marked “contain NO added flame-retardant chemicals.”

(B) 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.

(3) (A) If the department’s testing shows that a covered product labeled as “contain 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 covered product and component manufacturers to be held jointly and severally liable for the violation.

(B) 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).

(C) The fines in paragraph (B) 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.

(D) If the department’s testing shows that a covered product labeled as “contain 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 covered 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 covered product.

(E) If the department’s testing shows that a covered product labeled as “contain 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 covered products if the manufacturer wishes to retain the “contain 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 website.

(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 covered 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.