On June 25, 2021, the Consumer Product Safety Commission’s (CPSC) new standard addressing the flammability of upholstered furniture went into effect.1 The rule adopts California Technical Bulletin 117-2013—applicable to upholstered furniture sold in the state since 2015. Comments to the CPSC’s new rule from industry stakeholders and interested parties reflect a variety of viewpoints, ranging from total support to complete criticism. While the CPSC considered none of the comments significantly adverse enough to withdraw the rule, commentators suspect this will not be the agency’s last action on the topic.
The new furniture flammability standard is part of the CPSC’s effort to implement the COVID-19 Regulatory Relief and Work From Home Safety Act that Congress signed into law on December 27, 2020 as part of the Consolidated Appropriations Act of 2021. That law and the CPSC’s new rule incorporate the California Technical Bulletin for testing the smolder resistance of materials used in upholstered furniture—TB 117-2013.2
TB 117-2013 assesses the flammability of upholstered furniture when it is exposed to a smoldering cigarette by way of various tests to outer fabric, inner linings, and filler materials. TB 117-2013 has been mandatory in California since 2015. Accordingly, up to 95 percent of furniture already complies with the standard as incorporated into the CPSC’s new direct final rule.3 Because of this “very high” compliance percentage, the CPSC elected not to extend the effective date under the Flammable Fabrics Act, setting the date for June 25, 2021.4 The CPSC did however extend the deadline for the rule’s labeling requirements to June 25, 2022.5 The rule applies to upholstered furniture manufactured, imported, or reupholstered on or after June 25, 2021, exempting current inventory.
The CPSC issued the rule on April 9, 2021 and invited public comment. Shortly thereafter, on April 12, 2021, the CPSC received its first comment. While most of the comment period was quiet, the CPSC received seven additional comments on May 10, 2021—the last day of the period. These eight comments are briefly summarized as follows.
These comments reflect an ongoing debate about the use of smoldering and open flame standards that the CPSC and industry stakeholders have considered since at least 2016. Despite years of study and discussion, those interested have been unable to agree on a final regulation. Then, in December 2020, Congress mandated nationwide compliance with California’s standard.
Manufacturers and retailers should confirm that relevant products manufactured, imported, and reupholstered after June 25, 2021 substantively comply with TB 117-2013. They should also make arrangements to permanently label products with a “Complies with U.S. CPSC requirements for upholstered furniture flammability” label by June 25, 2022. The new rule ultimately does little to change the status quo. However, as industry debate persists, manufacturers and retailers should continue to monitor the issue because the CPSC may take additional action.
1 16 C.F.R. Part 1640 (2021).
3 16 C.F.R. Part 1640, Supplementary Information § V, Part A.
6 See, e.g., Dr. Alexander B. Morgan, Public Comment to 16 C.F.R. Part 1640 (April 12, 2021), https://www.regulations.gov/comment/CPSC-2021-0007-0008; American Chemistry Council's North American Flame Retardant Alliance, Public Comment to 16 C.F.R. Part 1640 (May 10, 2021), https://www.regulations.gov/comment/CPSC-2021-0007-0015.