Prop 65 hits industry
Heath E. Combs -- Furniture Today, February 15, 2013
LAS VEGAS - Many industry suppliers who received notices for alleged violations of California's Proposition 65 in January met informally at the Las Vegas Market last week.
The Prop 65 notices allege that consumers weren't properly warned about the presence of the chemical tris phosphate, or TDCPP, in furniture items.
At least 45 notices have been filed for home furnishings since Jan. 2. Many notices affect accent chairs, ottomans and decorative items. Other notices have been filed for children's upholstered chairs, barstools, cocktail ottoman, rocking and dining chairs, among other items.
At least one was filed against infant travel beds. JCPenney received a notice for foam-cushioned mattress toppers.
Among those receiving a notice was Emerald Home Furnishings. Robert Kirchmeyer, the company's vice president of U.S./Asia operations, discussed the violations with about 10 other suppliers during the market and planned to speak with operations and compliance officials at others after market.
There are questions about the authenticity of the complaints, he said. For example, one company was unable to verify that it had shipped the retailer who offered the violating product for sale, he said.
"We're just trying to get all sides of the story, which seem to vary. There's some people it's been three years since they sold this product that was on this violation notification," he said. "That puts it in question, because it was only two years ago that the chemical was added to the list."
Kirchmeyer said the firms filing the notices appeared to have purchased inexpensive items to test for Prop 65 violations, he said.
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 were 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 such items.
TDCPP is used in foam to help meet California's TB 117 upholstery flammability standard - a standard the state is in the process of revising.
The bulk of the violation notices 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, Bassett, Emerald Home Furnishings, Linon, Najarian, Four Hands, Homelegance, Stein World and others.
The notices filed in January 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 from manufacturers, which can range from thousands of dollars to more than $100,000, according to listed settlements on the attorney general's website.
Josh Voorhees, an attorney for The Chanler Group, said that so far this year the firm has issued 48 notices for tris phosphate.
He said the items cited in the notices have been tested for the presence of tris by a certified lab, and that the law firm knows with certainty that the items contain the chemical.
Kirchmeyer 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," he said.
Kirchmeyer has been meeting with companies interested in forming a collective group to defend against the notices. He can be reached by e-mail at RKirchmeyer@emeraldhome.com.
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