Hunton Retail Law Resource

Congress has passed a law mandating nationwide compliance with California’s flammability standard for upholstered furniture.  The “COVID-19 Regulatory Relief and Work from Home Safety Act,” included in the massive appropriations bill passed by Congress and signed into law by the President on December 27, 2020, incorporates the provisions previously proposed in the Safer Occupancy Furniture Flammability Act (SOFFA), a bill widely supported by the furniture industry.

The Consumer Product Safety Commission (CPSC) has been studying furniture flammability issues for decades, but was unable to reach a consensus on how to approach a regulation.  Historically, industry, consumer groups, and regulators have disagreed on whether furniture should be required to withstand an “open flame” or instead be “smolder-resistant.”

In recent years, concern has grown over the consumer exposure to chemical flame retardants, which many speculated were added to furniture to make products resistant to open flames.  In 2013, in response to that concern, California issued TB 117-2013, rolling back the state’s “open flame” requirement to a “smolder” test more easily met without the use of added flame retardants.  Now, TB 117-2013’s “smolder” test will be the law nationwide.

Key Provisions

• Compliance date. Beginning June 25, 2021, all upholstered seating furniture imported or sold in the United States must comply with the flammability test specified by California Technical Bulletin 117-2013 (TB 117-2013).
• Labeling requirement. All upholstered furniture must bear a permanent label that includes the statement “Complies with U.S. CPSC requirements for upholstered furniture flammability.”
• Exemption for bedding products. The law will not apply to bedding products, including mattresses and foundations (which are already subject to separate federal flammability standards).
• No general certificate of conformity or recordkeeping requirements. The law also expressly exempts upholstered seating furniture from the requirement to issue a General Certificate of Conformity.  Instead, the prescribed permanent label will operate as the certification that a product is compliant with TB 117-2013.

Considerations for Companies

Companies that manufacture or sell upholstered furniture should begin planning for compliance with TTB 117-2013.  While those companies selling upholstered furniture in California are already required to comply with the TB 117-2013’s test procedures, the federal law adds a new mandatory labeling requirement.  Companies that do not already sell products compliant with TTB 117-2013 should familiarize themselves with the test procedures.  We recommend consideration of the following steps:

• Communicate with suppliers. Retailers and importers should communicate with upstream suppliers and manufacturers to inform them of the new law and its requirements.  Particularly with the supply chain still feeling the disruptive effects of COVID-19, preparation and communication are key.
• Create processes to ensure compliance. Manufacturers, importers, and retailers should evaluate their compliance procedures to ensure covered upholstered furniture is tested and labeled before distribution and sale.  Quality assurance and audit policies should be developed and regularly performed to check for any gaps in compliance.
• Consider recordkeeping policies. While the new law does not set any recordkeeping requirements, companies may voluntarily set their own policies.  Importers in particular should consider requiring overseas manufacturers to provide proof of passing test results and certify that products are properly labeled before shipment.  Because overseas manufacturers are typically beyond the CPSC’s reach, importers can be held liable for untested, unlabeled, or falsely certified products.  Due diligence can help mitigate the risk that a noncompliant product will cause compliance and enforcement difficulties for importers.
• Evaluate current inventory. The new law does not explicitly allow any “sell-through” period through which companies may sell products that have either not been tested or are not labeled as required by the law.  Companies should take stock of their current inventory and consider testing and labeling any inventory they will not be able to sell before June 25, 2021.