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Upholstery suppliers hit with Prop 65 violation notices in California

HIGH POINT — Many of the furniture industry's top suppliers have been targeted for alleged violations of California's Proposition 65 already this year.

The Prop 65 notices allege that consumers weren't properly warned about the presence of the chemical tris phosphate, or TDCPP, in furniture items, primarily upholstered goods like storage benches, ottomans and stools.

Tris phosphate was added to a list of chemicals known to the state of California to cause cancer or reproductive toxicity in 2011, with a one-year period before warnings are required under the Proposition 65 law.

Starting in late October, companies were required to warn consumers "prior to exposure," the American Home Furnishings Alliance noted in an August member alert.

Last fall, some retailers in California began sending letters to suppliers requesting labels providing a warning if a product they sell contains the chemical. Many furniture manufacturers and importers began putting labels on items that might contain the chemical.

The products involved are upholstered furniture, including ottomans and stools. TDCPP is used to help meet California's TB 117 upholstery flammability standard - a standard the state is in the process of revising.

About 30 companies have been cited for upholstered furniture violations since Jan. 2, the bulk of which have been filed by Peter Englander, a private citizen represented by law firm The Chanler Group. In California, citizens can file notices with the Attorney General's office, which then issues citations.

The list of companies cited reads like a who's who of the industry and includes Ashley Furniture, Bassett Furniture, Emerald Home Furnishings, Linon, Najarian, Four Hands, Homelegance and Stein World, among others.

The notices filed this month give furniture suppliers 60-days to respond, after which, the attorney general decides which cases to pursue.

Often, firms that file the notices receive settlements, which can range from thousands to more than $100,000 in penalties, according to listed settlements on the attorney general's website.

Englander has filed at least 111 notices since January 2012, according to the California attorney general's website. Mass filers of the notices are sometimes known as professional Proposition 65 litigants.

Josh Voorhees, an attorney for The Chanler Group, said that so far this year the firm has issue 48 notices for tris phosphate.

He said the items have been tested for the presence of tris by a certified lab, and that the law firm knows with all certainty that the items contain the chemical.

Emerald Home Furnishings was among those who received a notice. Robert Kirchmeyer, vice president of U.S./Asia operations at Emerald, said he anticipated that some notices might be filed on tris, but not this quickly.

He added that notifications from attorneys who defend against Prop 65 notices also came quickly.

"The timing is impeccable," Kirchmeyer said.

He said he is trying to see if industry companies are interested in forming a collective group to defend against the notices. He can be reached by e-mail at RKirchmeyer@emeraldhome.com, or at the Emerald Home Furnishings showroom at next week's Las Vegas Market, in World Market Center B-1350.

Andy Counts, CEO of the AHFA, said it's not surprising that a flurry of notices has been filed so soon after a chemical common to the furniture industry was added to the Prop 65 list.

He said that if a coalition is formed, its members may choose to share attorney costs or try to reach a better settlement as a group than they could independently.

Counts added that flammability regulations are among the AHFA's top priorities.

The California Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation, fast-tracked revisions to TB 117, following a series of articles in the Chicago Tribune last year that documented decades of rulemaking dominated by special interests, including chemical manufacturers.

Counts said that a revised TB 117 draft may be released in early February. Tonya Blood, chief of Chief, Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation, will speak at the AHFA's 2013 Sustainability Summit on Feb. 20 in Charlotte, N.C.

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