Interview With California’s Lead Formaldehyde Inspector

As I discussed in a previous post, California’s new formaldehyde regulations that affect manufacturers of composite wood products and furniture fabricators, importers/exporters and retailers will be effective on January 1, 2009. Judging from the emails I’m receiving, there is a tremendous amount of confusion concerning how to comply with the regulations. We discussed these issues with Darrell Hawkins, the lead formaldehyde inspector at California’s Enforcement Division, and below is a summary of his comments and other statements from the Enforcement Division.

1. What questions are most frequently asked regarding complying with the regulations?

Questions usually relate to labeling requirements, sell-through dates, statements that are required to be placed on invoices or bills of lading, and letters required to be sent to each supplier to show one is using “reasonable prudent precautions.” [ME: if you would like to see labeling samples, samples of required statements to be placed on invoices/bills of lading, and required letters to suppliers, please email me at “jcohen@homefurnishingslaw.com]. An issue that is less controversial today is the number of certification boards in place to test and certify composite wood products.

2. How do you envision the regulations will be enforced?

The Enforcement Division is committed to being reasonable and not heavy handed; however, the regulations won’t be bent and corners won’t be cut. The Enforcement Division will be using the sell-through period (the period of 12 or 18 months beginning January 1, 2009 to dispose of non-compliant inventories, depending on the product and certain circumstances) to work out procedures and educate the industry (e.g., there probably can’t be violations during the sell-through “grace” period unless a product is falsely labeled compliant). The Enforcement Division is still working out a field test method because the furniture needs to be deconstructed. The Division envisions purchasing furniture from retail, commercial and internet channels, and delivering the samples to the lab for deconstruction, testing and determination of responsible parties that may have violated the regulations. The Division will also inspect product for labeling compliance and chain of custody (e.g., records need to be stored for at least 2 years). The Division will also rely on “whistle-blowers” as it has in the past.

3. How will penalties, if any, be assessed:

[ME: California’s Health & Safety Code Section 39674(a) calls for strict liability with civil penalties not to exceed one thousand dollars ($1,000) for each day in which the violation occurs. And Section 39674(b)(1) calls for strict liability with a civil penalties not to exceed ten thousand dollars ($10,000) for each day in which the violation occurs. “Each violation” may be loosely defined.]

The Enforcement Division does not foresee a fixed penalty. Each case will stand on its own. The Division is committed to having the industry comply with the regulations and will take a “heavy hand” if necessary; however they don’t anticipate drastic action against offenders early on. The Division will be flexible and is willing to give the benefit of the doubt to first time offenders depending on the circumstances. Such circumstances may include the extent of the damage caused, whether the violator is a repeat offender, how long the violation occurred, and any action the violator may have taken to mitigate the damage. Depending on the violation, the Enforcement Division would enter into a mutual settlement with the violator, refer the matter to the legal office for settlement, or refer the matter to the Attorney General office or District Attorney for prosecution.

4. Mr. Hawkin’s Last Words

We’re all reasonable people trying to reduce formaldehyde emissions, not devastate the industry or have some sort of power play. It’s helpful for all to have formaldehyde emissions reduced.

[ME: I was impressed with Mr. Hawkin’s candor and recognition that the regulations are complicated and not easily understood. He often spoke about educating the industry, being flexible and reasonable, working together, etc. However he was also resolute that the regulations will be enforced and “cheaters” would be caught. The lessons for the industry is to continue to educate ourselves regarding the regulations and compliance, and perhaps continue to lobby the California legislature about the hardship to the industry (e.g., can the sell through “grace” period be extended since non-compliant inventories are not moving in these tough economic conditions). Please share your thoughts by posting a comment or emailing to me at jcohen@homefurnishingslaw.com.