ISPA president discusses key issues on mattress flammability

David Perry -- Furniture Today, June 22, 2004

ALEXANDRIA, Va. -- Mattress flammability is one of the most important issues facing the U.S. bedding industry.

Dick Doyle, president of the International Sleep Products Assn., is a key player on the flammability front. The association he heads commands an influential position, and his comments can have far-reaching implications for the suppliers, producers and regulators working on mattress flammability.

Dick Doyle

Dick Doyle

Furniture/Today's Executive Editor, David Perry, recently posed a broad series of questions to Doyle to get his thoughts on current flammability developments. Also, read the following related story:  Doyle: ISPA has no plans to challenge California in court

Question: ISPA has been working on mattress flammability for several years and has included the topic on a number of its educational programs in recent years. How much progress has the industry made on this issue?

Answer: In fact, ISPA, and our sister organization, the Sleep Products Safety Council, have worked on the mattress flammability subject for over 30 years, and have focused specifically on open-flame ignition issues since the late 1990s. ISPA and the SPSC have also played major roles in supporting the development of an effective science-based national flammability standard for mattresses. We have gone to great lengths to help our members understand the latest developments on this important safety issue, and we continue to represent the industry's interests with government regulators.

The supply side of our membership has been terrific in developing the technology and components that our mattress manufacturers need to meet the new standards. Their innovation, coupled with the significant product development and testing that is currently going on throughout the industry, shows that our members are making great strides in preparing to meet the new safety requirements.

Q: What were the key results of ISPA's work on the development of mattress flammability standards in California?

A: Clearly, the key result of our work with California is the development of effective and practical product performance criteria in TB603 (the state's new mattress flammability regulation, scheduled to take effect Jan. 1). However, this development did not happen overnight. The fire science behind California's standard did not exist when the industry began this effort in the mid-1990s. Further, when California Assemblyman John Dutra took a leadership role in advancing legislation that pushed the process forward in California, industry and regulators still had much to learn about the science underlying the root causes of bedroom fires.

ISPA, the SPSC and other key organizations like the National Assn. of State Fire Marshals (NASFM) and the National Institute of Standards and Technology (NIST) were instrumental in researching these issues. The SPSC worked with NASFM to analyze the causes of bedroom fires, and found that bedclothes (top-of-the-bed products like pillows and comforters) are usually the first items ignited in a bed fire. This study confirmed similar conclusions in a study that the CPSC also conducted.

The mattress industry, along with other industry groups, also supported a multi-year laboratory research program conducted by NIST. This program was designed to develop a method for testing the fire performance of mattresses under real world conditions. It also provided guidance for regulators on what level of product performance would produce meaningful improvements in product safety.

Both of these major efforts provided the foundation for California's performance standard, which we believe will substantially improve bedroom safety.

Based on the NASFM findings showing that bedclothes are usually the first items ignited in a bed fire, Assemblyman Dutra's legislation required California to set flammability standards for both product categories once the regulators concluded that bedclothes contribute to bedroom fires. Although California has reached that important conclusion, the state has made limited progress in setting the bedclothes standard. Only when both mattresses and bedclothes are addressed together will we realize the full potential for improving home safety.

 It is also important to note that NASFM and the SPSC found that in many cases bedroom fires were started by children who were unsupervised or left home alone. Because of this the SPSC has long played a leadership role in educating parents and teachers about the dangers of fire and what they can do to help children avoid these dangers.

Q: Do you believe that California will begin enforcing its mattress flammability standard on Jan. 1, 2005?

A: That is what the state has announced. However, a federal law addresses the enforceability of state requirements in this area. The CPSC's general counsel has taken the position that California's TB603 is pre-empted by the existing federal mattress standard. In layman's terms, that means that California should follow the process set out in federal law for states that want to enforce their own flammability standards.

Unfortunately, that has not happened yet. We hope that California soon requests a waiver from federal pre-emption. Until this issue is resolved, the mattress industry will continue to face a great deal of uncertainty regarding pre-emption. Nevertheless, I would expect that many producers will continue with their efforts to design and test new mattress designs and will offer TB603-compliant products under their own volition.

Q: Does ISPA support California's plans to begin enforcing its new mattress standard on Jan. 1?

A: This is really an issue between California and the CPSC. But I want to make clear that in addition to ISPA's continued support for the performance criteria in California's TB603, our main goal is for the CPSC to continue its strong push to establish a national standard based on those criteria. The industry is working hard with the CPSC staff to achieve this objective. A piecemeal state-by-state approach to address this issue is not an effective way to improve public safety nationwide.
 
Q: ISPA has said that it favors a uniform, national mattress flammability standard. When do you believe such a standard will go into effect?

A: It is important to recognize that while California has accomplished a great deal in setting effective and practical pass/fail criteria — and we hope that the CPSC will incorporate those criteria in the new federal standard — federal law and the CPSC require more than simply the basics covered by TB603. Unlike California, the CPSC — as a matter of practice — will not issue a federal standard unless it has first determined that the standard will produce reliable and consistent results. This type of analysis is called a "precision and bias" test. When California issued TB603, it conducted no precision and bias analysis.

Likewise, the compliance section of a CPSC standard will usually contain specific documentation and test frequency requirements — provisions that are not included in state standards like TB603. So while the CPSC will benefit from the work that California performed in setting the TB603 criteria, a lot remains to be done.

The CPSC plans to issue its proposed open-flame mattress standard later this year. While the industry cannot control when that standard becomes effective, we will continue to work diligently to help the CPSC staff complete their important work as quickly as possible.

Q: In your statement on pre-emption last month, you said that, according to CPSC, California cannot legally enforce its mattress standard. But according to the April 9, 2003 letter from the then-counsel for the CPSC to Lynn Morris: "The issue of whether a particular federal statute pre-empts a state regulation is one that can be decided only by the courts, not this agency." How can ISPA contend that the California standard is not legally enforceable, when CPSC itself says the pre-emption issue can only be decided in the courts?

A: Along with the rest of the General Counsel's letter to Lynn Morris, the sentence you quoted simply means that his reasoned legal conclusion is that TB603 is pre-empted, but that only a court can order California to comply with the federal preemption law.

But that hardly means that California itself lacks the ability to consider the facts and the law, and then draw its own conclusion on the pre-emption issue. To do that, I think that the relevant question here is: What result did the U.S. Congress intend when it enacted the federal pre-emption section of the Federal Fabrics Flammability Act?

The law and the legislative history to which the CPSC's general counsel opinion refers provide compelling support for his conclusion that TB603 is pre-empted by the existing federal standard. If that conclusion is correct, then the pre-emption law provides that California may not "establish or continue in effect" a standard like TB603. In other words, TB603 is legally unenforceable until California obtains an exemption from pre-emption.

A 1976 report that Congress issued when it passed the pre-emption law at issue here makes it clear that Congress intended exactly that result. In describing how it wanted the provision applied, Congress used the following example:

"[A] state standard designed to protect against the risk of injury from a fabric catching on fire would be pre-empted by a federal flammability standard covering the same fabric even though the federal standard called for tests using matches and the state standard called for tests using cigarettes."

Congress went on to say that:

"When an item [for example, a mattress] is covered by a federal flammability standard … a different state or local flammability requirement applicable to the same item will be pre-empted since both are designed to protect against the same risk, that is the occurrence or injury from fire."

At the same time, Congress established a process for a state that wants to advance its own standard:

"If a state or local government desires to continue or put into effect its own requirement, it would have to seek an exemption from the commission."

Congress' intent could not be more clear: It intended for a state like California to obtain an exemption from pre-emption before enforcing a standard like TB603. While a court certainly could reach a different conclusion, it seems unlikely to me.

I should add that the general counsel's conclusions and the statements of congressional intent quoted above are hardly unusual in terms of the interaction between state and federal governments. In fact, I am aware of a number of similar situations, including a variety of environmental and other safety issues, where California has followed the same process outlined by the CPSC's general counsel. That is, California issues its rule and then obtains the appropriate federal agency's approval of that rule before the state begins enforcement. There is no reason the same process should not be followed here.

Q: Since CPSC says the pre-emption issue can only be decided by the courts, does ISPA plan to raise that issue in the courts?

A: ISPA has no plans to litigate this issue. And we sincerely hope that logic and common sense will prevail and that no one will be forced to litigate whether California at present has the legal right to enforce TB603.

If California does not request the exemption from pre-emption, however, we would expect that someone will eventually litigate the issue. Under California law, many individuals or companies have the right to challenge government rules like TB603 in a number of different ways. But such a challenge will probably not happen in time to resolve the uncertainty that now exists.

For example, if California requests no exemption, I fully expect that the first company that the California Bureau targets for enforcement under TB603 — in the form of a penalty or an order to withhold goods from sale — will challenge the standard's legality. If the producer wins, that decision invalidating TB603 unfortunately won't be issued until long after many producers have invested millions to meet the TB603 requirements, based on their good faith belief that the law required that result.

Is it right to punish companies that in good faith thought they were legally required to incur tremendous compliance costs, only to find out later that California lacked the legal authority to enforce its standard? I don't think that is fair. For that reason, resolving the conflicting views between California and the CPSC now (and not later) would be a better (and certainly more just) outcome.

Q: In your recent statement on pre-emption, you said that the status of California's mattress standard "remains unclear." Given the uncertainty that ISPA sees on this issue, what is your advice for your member producers?

A: To avoid any confusion, I want to emphasize that we consider the TB603 pass/fail criteria themselves to be clear and practical, and we support their implementation nationally. The safety of consumers throughout the country will be greatly enhanced.

The uncertainty I mentioned concerns only whether California can enforce TB603 without first getting the CPSC's waiver from pre-emption. On that point, our advice is the same as always: Stay up to date on what regulators are doing. ISPA is uniquely positioned to provide current factual information on issues like flammability through the ISPA Web site, as well as our regular publications like BedTimes magazine and Tuesday Morning at ISPA. ISPA is seeking answers to important unresolved questions and will communicate developments to our members as we learn of them.

In terms of judgment calls about whether to comply with a given flammability standard, ISPA always encourages its members to consult with their own legal counsel and technical experts. As independent companies in a highly competitive and innovative industry, our members will inevitably decide for themselves the best commercial course of action for their company.

Q: Should they be planning to meet California's stated Jan. 1, 2005 enforcement date?

A: We will continue to inform our members that California plans to enforce its requirements on Jan. 1, 2005 until we learn otherwise. We also have been very clear that we are working diligently with the CPSC to help establish a federal standard based on the California criteria that will be applied nationally. Further, this is a national safety issue that must be addressed in a uniform manner, and not through a patchwork of differing state requirements.

We will continue to urge California to eliminate the uncertainty regarding preemption.

Also, click here to read the recent CBSNEWS.com story on mattress flamability.