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Let FR Makers Pay Our Prop 65 Costs

February 5, 2013

In a perfect world, chemical companies would be paying our California Proposition 65 attorney fees or other costs. They would, at the very least, be sharing our headache.

As a byproduct of California's TB 117 flammability law - now under revision - about 60 furniture companies could find themselves in court for having flame retardants in foam.

Since the 1970s environmentally toxic flame retardants were used foam because otherwise, the TB 117 requirement that furniture pass an open flame test would have been very difficult, or impossible, to pass.

TB 117 may have unintentionally - due to lack of long-term research on now phased out environmentally persistent brominated flame retardants in the PBDE group - been keeping certain harmful flame retardants in for couches years.

That changed these last few years when the chemical lobby decided to pump $23 million into California to fight a battle to keep flame retardants in foam.

With the help of lawmakers in California - despite mounting evidence that certain chemicals were of concern - the lobby persisted for five years in keeping bills to regulate flame retardants from getting passed.

Their stated goal was to keep you and I safer by giving us more time to escape during a fire. That's a noble goal.

But the chemical industry hasn't budged from this stance and meaningfully addressed the FR and neurological defects question - which is why they are and will continue to lose the PR battle.

This inability to acknowledge toxicity studies is not only insensitive, it has made the escape time defense of FR chemicals seem ignoble. Quite simply, parents want to know if furniture will poison their babies.

You might ask: why does the chemical industry care so much about what's in foam for fighting fires? Why are they fighting so hard to keep flame retardants in furniture?

Why is their influence so present when those supplying the furniture and foam have advocated for voluntary product engineering processes - which many would argue are more effective - like the Upholstery Furniture Action Council method?

Or, why doesn't the furniture industry spend $23 million to help get us a better rule?

I'm sure you can figure that out on your own. Our voice would surely be louder if we charged more for sofas. But ours is an $84 billion industry.

The chemical industry is a $760 billion industry, according to the American Chemistry Council. It has trade associations whose presidents who receive more in yearly compensation than the entire annual income of the American Home Furnishings Alliance.

The latest news on FR chemicals is that in January, many furniture industry suppliers had Proposition 65 notices filed against decorative items that allegedly contain tris phosphate.

These notices allege that furniture companies failed to warn consumers of exposure to possible carcinogens prior to purchasing the items. That's a requirement for chemicals listed with Proposition 65.

Settlements from citizen litigants who enforce it can range from thousands to hundreds of thousands of dollars for furniture suppliers who were hit with the notices.

Tris phosphate, used to meet the TB 117 flammability standard, was added to a list in 2011 of harmful chemicals known to the state of California to cause cancer or reproductive harm.

It is an alternative to another flame retardant phased out a few years ago that was used to meet TB 117. By my count, as of late last week, we're getting close to 60 notices against home furnishings suppliers. These are some of the biggest industry names.

Why can't these notices bypass furniture makers - who include FR chemicals because California requires it - and instead go to chemical makers, who have deeper pockets and lobby so hard for them?

Why can't they pay the penalty for successful lobbying? Why should we be on the hook for thousands in settlement fees from professional litigants? Why are we liable for their dog biting the consumer?

Shouldn't there have been a phase out period and more coordination between state agencies for such a prevalently used chemical? If successful lobbying by the chemical industry makes furniture unsafe, why are we paying for it?