ISPA's Doyle answers flammability questions
By Furniture Today Staff -- Furniture Today, July 12, 2004
Alexandria, Va. — Dick Doyle, president of the International Sleep Products Assn., the bedding industry's trade group, is a key player on the mattress flammability issue.
Furniture/Today's executive editor, David Perry, recently posed a series of questions to Doyle on current flammability developments. Here is a partial transcript of Doyle's responses. For a complete version, see www.furnituretoday.com.
Question: Do you believe that California will begin enforcing its mattress flammability standard on Jan. 1?
Answer: That is what the state has announced. However, a federal law addresses the enforceability of state requirements in this area. The U.S. Consumer Product Safety Commission'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, then head of California's Bureau of Home Furnishings: "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 pre-emption 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? ...
Congress ... 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.
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.
