The Evolution of California’s Regulation of Fire Retardants in Children’s Products

California is at the forefront of regulating children’s products, specifically those containing fire retardants.  It is likely that in the next few years California will issue further regulations regarding children’s products containing fire retardants, specifically eliminating the chemical tris, which would impact all members of the supply chain.

Regulations regarding fire retardants have been around for decades.  In 1973, the federal government enacted a regulation requiring children’s pajamas to be fire resistant and, to comply, manufacturers treated children’s pajamas with brominated tris.  However, subsequent studies linked brominated tris to cancer.  Thus, in April 1977, the U.S. Consumer Product Safety Commission banned clothing containing brominated tris.  Although the ban was subsequently overturned, manufacturers voluntarily discontinued the use of brominated tris in children’s pajamas.

Shortly thereafter, in 1975, the California Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation, a division of the California Department of Consumer Affairs, issued Technical Bulletin 117, which required material inside furniture, such as foam, be able to withstand a small open flame for 12 seconds without igniting.  In order to meet this standard, many companies began using chlorinated tris as a fire retardant in children’s products such as mattresses, pillows and blankets.  However, in 2011, California officially identified chlorinated tris as a cancer-causing chemical, meaning all products using it had to include a Proposition 65 warning.

Following this identification, independent testing revealed that numerous children’s products continued to contain levels of chlorinated tris above the state’s safety standard.  As a result, the Center for Environmental Health, a private agency, brought suit against several manufacturers and suppliers of these products, including WaImart, Babies “R” Us, Munchkin and Target.  Subsequent settlements resulted in manufacturers’ commitments to eliminate the use of chlorinated tris in their products.  California continued its attempt to reduce the use of chlorinated tris in children’s products, and in October 2013, the Safer Consumer Products (SCP) regulations (also known as the Green Chemistry Law), implemented by the Department of Toxic Substances Control (DTSC), took effect.  Specifically, the regulations require manufacturers to seek safer alternatives to harmful chemical ingredients in widely used products.  The goal of the law is to (1) reduce toxic chemicals in consumer products; (2) create new business opportunities in the emerging safer consumer products economy; and (3) reduce the burden on consumers and businesses struggling to identify what is in the products they buy.

In March 2014, the DTSC released the identity of the three initial “Priority Products” on which to focus in 2015 and 2016.  A Priority Product is a consumer product identified by the DTSC that contains one or more chemicals – known as Candidate Chemicals – that have a hazard trait that can harm people or the environment.

Children’s foam-padded sleeping products containing tris were among the three initial Priority Products identified.  Such products include nap mats and cots, sleep positioners, travel beds, bassinet foam, portable crib mattresses, play pens and car bed pads.  Although children’s foam-padded sleeping products are now considered Priority Products, the list is not final and there are no regulations with which to comply.

The list of Priority Products is expected to be finalized, and could include additional consumer products from seven broad categories, including (1) beauty/personal care/hygiene; (2) building products (painting products, adhesives, sealants, and flooring); (3) household/office furniture/furnishings with perfluorochemicals (PFC) and/or fire retardants (FR); (4) cleaning products; (5) clothing; (6) fishing and angling equipment; and (7) office machinery (consumable products).  Once the initial Priority Products list is finalized, which is expected to take several years, manufacturers of Priority Products will be required to notify the DTSC of the Priority Products they manufacture and potentially begin the Alternatives Analysis (AA) process, which includes showing that the chemical is necessary for the product’s manufacture or design and analyzing whether there are any other chemicals that could make the product safer.  The findings of each manufacturer’s AA report will ultimately determine what regulatory response, if any, the DTSC may impose.  The SCP regulations provide a range of regulatory responses, ranging from product labeling to a sales prohibition.

Should the DTSC issue any regulations regarding children’s foam-padded sleeping products, manufacturers themselves will be primarily responsible for compliance.  However, if a manufacturer fails to comply, responsibility for compliance falls to the importer, and potentially the retailer.  As such, if you are at all in the stream of commerce regarding any Priority Product, it is important to keep abreast of any DTSC regulations in the coming years.

Ultimately, we expect the DTSC may recommend, at a minimum, that manufacturers of children’s foam-padded sleeping products cease using tris on the grounds that such products have not been shown to offer a higher level of flame resistance.  Further, the DTSC concluded that there is no need to make children’s foam-padded sleeping products flame retardant, thereby eliminating any need for the use of tris.  Not only is the DTSC targeting products containing tris, last year the California State Senate approved a bill requiring certain children’s products be labeled to identify whether they contain flame-retardant chemicals such as tris.  The bill was sent to the California Assembly for approval, but was ordered to the “inactive file” in September 2015.