California Issues Most Stringent U.S. Formaldehyde Limits on Wood Products

14 October 2008 Publication

Legal News Alert: Environmental

In April 2007, the California Air Resources Board (CARB) approved an airborne toxic control measure (ATCM) to reduce formaldehyde emissions from composite wood products and from finished goods that contain such products. Title 17 of the California Code of Regulations, Sections 93120 – 93120.1, will establish the most stringent formaldehyde emissions limits on wood products in the United States and, when fully implemented, will be the strictest limits in the world.

The measure targets products typically made with urea formaldehyde adhesives such as particleboard, medium-density fiberboard, and hardwood plywood. The ATCM also will affect manufacturers of furniture, cabinets, picture frames, and other consumer products that use those composite wood panels. Manufacturers, importers, distributors, fabricators, installers, and retailers can all be held responsible for ensuring that their products comply.

Phase I of the ATCM goes into effect on January 1, 2009 and is designed to establish a baseline drawn from today’s common practice, while curtailing low-cost, imported products that emit high levels of formaldehyde. Phase II, on the other hand, is intended to force manufacturers to shift to advanced and emerging technologies.

Emission Testing and Certification
The ATCM sets forth Phase I emission standards for the various composite wood products that will take effect on January 1, 2009 (except for hardwood plywood composite core products, which are not similarly regulated until July 1, 2009); the more restrictive Phase II emission standards go into effect between the years 2009 and 2012, depending on the product. Manufacturers of composite wood products are required to conduct emission testing of their products to verify that they comply with the ATCM’s emission standards. Specifically, the ATCM requires that all domestic and foreign manufacturers certify their products by a third-party laboratory approved by CARB. Third-party certifiers are to verify that manufacturers comply with the ATCM quality assurance requirements, verify test results, work to establish quality control regulations, and provide annual reports to CARB on the results of their inspections. A certifier also will conduct periodic on-site inspections of the plant and production line to ensure full compliance. Inspections will occur at least once per quarter, and the certifier may conduct a small-scale test during the inspection.

Manufacturers and fabricators must include labels on wood products with a statement that the items meet the applicable emission requirements. If distributors and/or importers modify the product in any way, they also must provide a similar label. In addition, every business that comes into contact with a product prior to its retail sale also must provide a “statement of compliance” that the composite wood products or composite wood products contained in the finished goods comply with the applicable emission standard, thereby creating regulatory liability for everyone in the supply chain and potentially subjecting them to citizen suit enforcement under Section 17200 of the Business and Professions Code, also known as California’s Unfair Competition Act.

Sell-Through Provisions
Appendix 2 of Section 93120.12 of the ATCM contains the sell-through provisions and the dates that apply to entities required to comply with the ATCM. Under the sell-through provisions, composite wood products and finished goods that do not comply with the ATCM and were manufactured before the applicable effective date may be legally sold, supplied, or offered for sale in California for specified periods of time ranging from three to 18 months. As a general matter, the sell-through periods are not cumulative; that is, if a manufacturer uses part of its allotted time period after the effective date, the retailer may not start the sell-through clock over again. It should be noted, however, that at least one national retailer has expressly refused to accept products subject to the sell-through provisions of the ATCM, despite the fact that those products would be in compliance with the ATCM.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information to our clients and colleagues.

If you have any questions about this alert or would like to discuss these topics further, please contact your Foley attorney or the following individuals:

Elizabeth A. Cason
San Diego, California

S. Wayne Rosenbaum
San Diego, California

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