About California Technical Bulletin 117 (TB 117) and Chemtura’s Legal Action

Chemtura Corporation (“Chemtura”) offers flame retardants that protect the public by helping reduce injuries and fatalities from accidental fires. Chemtura has been involved in fire safety for more than 40 years, and has developed significant expertise in the science of fire prevention, and the relevant codes and standards that are intended to help prevent fires.

As part of our efforts to engage on the advancement of fire safety laws, we followed with interest as the California Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation (“BEARHFTI” or “Bureau”) reviewed its landmark fire safety standard, Technical Bulletin 117 (TB 117). Since 1975, TB 117 has served as the de facto standard for fire safety testing for furniture manufactured for sale in the United States. That regulation required that cushioning material in furniture pass both what is called a “smolder test” and an “open flame test” before it could be brought to the market.

At various points in time, we and other experts participated in the regulatory process to voice our opinion that any revisions to TB 117 must continue to address both smoldering and open flame ignition of furniture, which together account for about half of all furniture fires. Despite recommendations from the National Fire Protection Association (NFPA), Underwriters Laboratories (UL), and a number of fire safety and fire science experts that an open flame test was a necessary component of a new standard, the end result of this review was the issuance of a revised standard, TB 117-2013, that addresses only smoldering (cigarette) ignition. This action creates a major gap in the fire protection afforded by California’s fire safety requirements for upholstered furniture, and is even contrary to comments BEARHFTI submitted to the Consumer Product Safety Commission (CPSC) in 2008, in which it claimed that “…the Bureau strongly believes that any national furniture flammability standard must address the typical scenario of open flame ignition in upholstered furniture.”

It is clear to us and others in the fire safety community that the new TB 117-2013 standard is a step backwards and will ultimately adversely affect fire safety for the entire nation.

After exhausting all regulatory avenues, and particularly because the State chose not to act on the recommendations of many third-party fire safety experts, Chemtura reluctantly filed a lawsuit in order to overturn the revised rules. We did this for two reasons:

      1) The statute authorizing the Bureau to determine new performance and labeling requirements under the flammability standard (the Home Furnishings and Thermal Insulation Act) specifies the use of an open-flame standard, not a smolder only test; therefore, the Bureau does not have authority to promulgate rules based on a different standard;

      2) The Bureau overstepped its legislative authority when it attempted to regulate chemicals through this action based on concerns about potential health effects associated with flame retardants, as the Legislature has authorized only the Department of Toxic Substances Control to review and regulate chemicals used in consumer products.

We filed this lawsuit to seek judicial review of the authority of the Bureau to eliminate the essential requirement of the fire safety standard. As a member of the industry that develops and supplies products to prevent fire injuries and deaths, we took on this challenge because it is the only means now available to overturn the enactment of a standard that contradicts the recommendations of third party fire safety experts and undermines furniture fire safety. We also wish to see the Bureau adhere to its statutory obligations.

We are seeking a judgment that will set aside the revised standard – a standard that ignores open flame ignition sources, which is contrary to the plain language of the law and decades of legislative history. Our hope is that the court will throw out TB 117-2013, and the Bureau will implement a standard that addresses both smolder and open flame ignition sources and improve, rather than weaken, fire safety.

Significant Voices in this Debate regarding Fire Safety Standards

Chemtura was not alone in pointing out the shortcomings of the revised TB 117-2013 standard. Throughout the comment period, many well-respected fire safety organizations and individual experts asserted that any revision to TB 117 should include protection against open flame ignition sources. The following are some examples.

National Fire Protection Association (NFPA)

“Address the Full Spectrum of Major Fire Scenarios: NFPA feels strongly that a fully comprehensive fire safety regulation of upholstered furniture must address the full spectrum of major fire scenarios, including the open flame scenarios.”

NFPA comments to Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation on proposed changes to TB 117, March 22, 2013.

Underwriters Laboratories, Inc. (UL)

“An Open Flame Test is a Necessary Addition to Smoldering Test Requirements: Based on the research we have conducted, UL continues to believe that an open flame test is a necessary addition to smoldering test requirements to understand furniture fire dynamics, time to flashover, and to provide sufficient egress time for occupants.” Comments to Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation on proposed changes to TB 117, March 20, 2013.

California Conference of Arson Investigators (CCAI)

“Polyurethane foam is resistive to smoldering ignition but ignites easily and will burn vigorously when ignited with an open flame… the elimination of the open flame ignition test is a significant step backward.” Comments to Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation on proposed changes to TB 117, March 6, 2013.

U.S. Consumer Product Safety Commission (CPSC)

“Smolder Ignition Bench-Scale Testing Did Not Demonstrate an Adequate Prediction of Real Furniture Flammability Performance” After testing upholstered furniture, the CPSC concluded that “bench-scale performance did not demonstrate an adequate prediction of real furniture flammability performance, especially in the smoldering ignition tests. The open-flame ignition bench-scale qualification tests for fire barriers, however, do appear to result in improvements in full-scale fire performance.” Comments to Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation on proposed changes to TB 117 submitted March 15, 2013.

National and International Flammability Experts

“Address both Smoldering and Open Flame Ignition Sources: We advise and urge the State of California to take meaningful action to address both smoldering and open flame ignition sources of upholstered furniture fires, and not allow a regulation to be promulgated that could well result in more fires, with related injuries, deaths and property loss.” Comments to Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation on proposed changes to TB 117, March 25, 2013 by:

    • Margaret Simonson McNamee, Ph.D., SP Technical Research Institute of Sweden
    • Gordon Damant, Bureau Chief (ret.), California Bureau of Home Furnishings and Thermal Insulation
    • Roy Deppa, P.E., (ret.) U.S. Consumer Product Safety Commission
    • Nicholas Marchica (ret.) U.S. Consumer Product Safety Commission
    • David Purser, Ph.D., (ret.), Fire and Risk Sciences Division, U.K. Building Research Establishment
    • Steven Spivak, Ph.D., Professor Emeritus, Fire Protection Engineering, Univ. of Maryland

Questions & Answers

Q) What is the purpose of Chemtura’s lawsuit?

A) We believe the Bureau, which is responsible for protecting individuals and families against the threat of furniture fire, abandoned its duty and overstepped its authority with the changes made to TB 117. By removing the test for one of two key sources of upholstered furniture fires, the regulators weakened a safety standard that served as a national benchmark for almost 40 years, without adopting a suitable replacement. We regularly work with fire safety authorities to improve safety standards and will continue to do so. As many have said, removal of an “open flame” test requirement decreases fire safety and puts individuals and families at greater risk.

Q) What do you mean when you state that the Bureau overstepped its authority?

A) The Bureau does not have authority to promulgate rules that omit an open flame requirement. Only the Department of Toxic Substances Control has been authorized by the Legislature to review and regulate the safety of chemicals used in consumer products.

The statute authorizing the Bureau to determine new performance and labeling requirements under the Home Furnishings and Thermal Insulation Act specifies the use of an open flame standard, not a smolder only test.

Furthermore, the Bureau revised its upholstered furniture standard based on direction from Governor Jerry Brown in a June 18, 2012 press release instructing the Bureau to change the standard in order to reduce the use of flame retardants *. Yet, the Bureau fails to recognize that it does not have the necessary legislative authority to implement this directive.

* “In an effort to protect public safety by reducing the use of toxic flame retardants, Governor Edmund G. Brown Jr. today directed state agencies to revise flammability standards for upholstered furniture sold in the state.” http://gov.ca.gov/news.php?id=17598

Q) Why is Chemtura the only flame retardant producer to sue the California agency?

A) Any agency that reaches beyond its statutory authority should be challenged—especially when the action goes against public safety interest.

Chemtura feels that regulatory efforts to update fire safety standards should result in stronger standards that improve safety and that government agencies should act within their statutory mandates.

When The Bureau removed the “open flame” test requirement, it reached beyond its statutory authority and put individuals and families at risk. Chemtura felt an obligation to speak up. Simply removing the open flame fire safety standard, without a replacement, is a case of regulatory abandonment of public safety and outside the regulatory authority of the Bureau.

Q) Isn’t this lawsuit simply aimed at protecting Chemtura’s significant business interests?

A) No. This lawsuit aims at protecting fire safety standards and ensuring appropriate regulatory authority.

The removal of the “open flame” test as mandated by the revised TB 117, which was done without a plan for an improved standard, is a case of abandonment of public safety. The Bureau should be held accountable for adhering to its statutory obligations.

Chemtura does sell flame retardants that improve the fire safety properties of upholstered furniture. This line of business has given us deep expertise in fire safety and an obligation to advocate for public fire safety interests. We believe the Bureau should not be allowed to ignore the recommendations of third party fire safety experts who submitted comments in the rulemaking process. This is a public safety issue.

Q) How do you respond to the claim that the new standard is a step forward for fire safety?

A) The new standard includes some positive elements for fire safety, but it eliminates crucial elements that we believe runs counter to the public interest for fire safety. Implementing a smolder resistance requirement for the upholstery fabric or barrier material in addition to testing requirements for the filling material is an improvement, but the lack of an open flame ignition resistance test is an unacceptable step backwards. This new standard falls short in three key areas:

  • 2) Most furniture is already subject to a smoldering ignition test.
    The smolder test in the new standards is based on a voluntary smolder test developed by the Upholstered Furniture Action Council in the late 1990’s (ASTM E-1353-08a). The Bureau acknowledged that the vast majority of furniture manufacturers already comply with their “new” standard when they said “Approximately 80-85% of U.S. manufacturers currently comply with ASTM E-1353-08a standard.” (BEARHFTI Initial Statement for Reasons for TB117-2013, page 4). The regulatory standard offers minimal improvement over current practice in the industry. Our opinion is that embracing the status quo for smoldering ignition while at the same time removing all open flame resistance requirements cannot be characterized as an “improvement in fire safety”.

  • 3) The new TB 117-2013 testing standards will not provide adequate protection from smoldering ignition sources.
    The Bureau attempted to improve the reproducibility and reliability of the testing procedure. This is a laudable goal since it has been a topic of debate for decades. Further guidance will undoubtedly be issued by the Bureau to fill in some of the shortcomings in the test methods described in their final rule. Fundamentally, the Bureau must ensure that furniture components are as smolder resistant in the real world as they are in a test lab. But, based on a recent press release from the National Institute of Standards and Technology (NIST), we are not so sure this is the case with TB 117-2013. “The bench-scale test widely used to evaluate whether a burning cigarette will ignite upholstered furniture may underestimate the tendency of component materials to smolder when these materials are used in sofas and chairs supported by springs or cloth, National Institute of Standards and Technology (NIST) and American University researchers report in a new study." This finding confirms the conclusions of separate research by the Consumer Product Safety Commission brought to the Bureau’s attention during the rulemaking process.

Q) Wasn’t the “old” TB 117 open flame standard actually ineffective?

A) Effective fire safety requires multiple layers of protection. Furniture design and materials, as well as fire protection technologies, have changed in the decades since TB 117 was first adopted. As a result, Bureau in fact had an opportunity to make the standard better. Adding a requirement for open flame protection of cover fabric is one example of how the Bureau could have improved the efficacy of the prior standard. By contrast, eliminating the requirement for an open flame test in the new standard is like removing the requirement for seatbelts in vehicles because airbags are now being used. This decision removes an important layer of protection that serves to enhance furniture fire safety.

Third party research submitted to the Bureau during the TB 117-2013 rulemaking demonstrates that flame retardants used to comply with TB 117 slow heat release and fire growth and provide extra time for occupants to escape a furniture fire. In follow-up work to his initial fire safety study funded by the National Institute of Justice at the U.S. Justice Department, Dr. Matthew Blais, the director of the Fire Technology Department at the non-profit Southwest Research Institute, tested materials treated with flame retardants in order to meet the strictest U.S. furniture flammability standard. Depending on the fire scenario, he concluded that the use of flame retardants in urethane foam filled furniture provided additional escape time for occupants to escape from a household fire *. This additional escape time in a household fire can mean the difference between life and death.

Our lawsuit seeks to have the court throw out the revised standard, thereby encouraging the Bureau to develop a new standard that addresses both smolder and open flame ignition sources, which would improve, rather than weaken, fire safety.

* Proceedings of Fire and Materials 2013 (January 28-30, 2013, San Francisco, CA), pages 319-330, Interscience Communications, London, UK

Q) How do we know the flame retardants that Chemtura sells are safe for use in furniture?

A) The U.S. Environmental Protection Agency (EPA) has reviewed Chemtura’s flame retardants used in the flexible foam cushioning of furniture and have determined them to be safe for use in furniture foam. This was the result of a comprehensive assessment by EPA scientists and regulators.

Every chemical used in consumer products, including those used as flame retardants, are subject to review by the EPA in the United States and other comparable governmental agencies in other regions of the world. Since the late 1970s, review of all new chemicals used by the EPA has been mandated under the Toxic Substances Control Act (TSCA). Additionally, nearly all flame retardants used in large quantities in commerce have been assessed by authorities through a variety of programs. As flame retardant manufacturers strive to innovate and make better performing and more sustainable flame retardants, these substances must gain approval from the certain regulatory authorities. These authorities can limit or even prohibit a chemical’s use if it raises questions concerning public health, environmental safety or other unacceptable risks. During a recent review of flame retardants on the TSCA inventory, the EPA announced it has identified approximately 50 flame retardants that are unlikely to pose a risk to human health. The EPA is expected to publish this list in the near future.

Q) Would you support an “open flame” standard even if it could be met without using your flame retardant chemicals?

A) Chemtura advocates for the highest possible standards for fire safety and an open flame test should be part of that standard.

Ultimately, the home furnishing value chain will decide how best to meet fire safety obligations. The issue at hand is restoring the open flame requirement so that consumers can be assured of a basic level of fire protection.

Lawsuit Updates:

Additional Resources:

Resources from the North American Flame Retardant Alliance (NAFRA):