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CPSC’s New Standard on the Flammability of Upholstered Furniture Now Effective

On June 25, 2021, the Consumer Product Safety Commission’s (CPSC) new standard addressing the flammability of upholstered furniture went into effect.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

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 Commentary

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.

  • April 12, 2021

    • Dr. Alexander B. Morgan – Criticizes the rule’s “[c]igarette-only fire testing” approach, discusses how smolder-type spot ignition source tests favor synthetic materials over natural ones, and asks the CPSC to start over with standards that address both cigarette and open flame ignition sources (similar to those currently applicable to mattresses)

  • May 10, 2021

    • American Chemistry Council's North American Flame Retardant Alliance – Encourages the CPSC “to continue its work on a comprehensive furniture flammability standard that would also address open flame ignition” while repeatedly quoting previous statements from CPSC technical staff that express concerns about TB 117-2013.

    • American Chemistry Council's Center for the Polyurethanes Industry – Suggests improvements like ensuring the standard can be updated as necessary and clarifying the preemption requirements by adopting the language in TB 117-2013 itself versus adopting the standard by reference and clarifying the exact version of the rule being adopted.

    • Upholstered Furniture Action Council – Supports the proposed direct final rule, including the effective dates for performance and labeling and the inventory exemption, and provides marketplace information to support that position.

    • Polyurethane Foam Association– Expresses general support for the proposed direct final rule but requests clarification regarding which version of TB 117-2013 the direct final rule adopts.

    • Underwriters Laboratories Inc. – Advocates for an open flame test in addition to a smoldering test, citing research demonstrating that “flame suppressant technology, such as an effective fire barrier” can slow the burn of furniture “and does not require the addition of flame retardants.”

    • International Association of Fire Fighters – Expresses full support for the proposed direct final rule because the open flame standard “results in the application of copius [sic] amounts of carcinogenic flame retardants” and higher occupational cancer deaths for fire fighters.

    • Applied Textiles – Inquires about enforcement, including testing requirements and responsibility distribution within the supply chain.

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.

As even the rule’s critics acknowledge,6 the congressional mandate is what the CPSC must implement. Yet, several interested parties encourage the CPSC to contemplate more for furniture flammability.

Next Steps for Upholstered Furniture Manufacturers and Retailers

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).

2 Id.

3 16 C.F.R. Part 1640, Supplementary Information § V, Part A.

4 Id.

5 Id. at Part C.

6 See, e.g.,Dr. Alexander B. Morgan, Public Comment to 16 C.F.R. Part 1640 (April 12, 2021); American Chemistry Council's North American Flame Retardant Alliance, Public Comment to 16 C.F.R. Part 1640 (May 10, 2021).

© 2023 Foley & Lardner LLPNational Law Review, Volume XI, Number 187

About this Author

Erik K. Swanholt, Foley Lardner, litigation attorney

Erik Swanholt is a partner and litigation attorney with Foley & Lardner LLP. Mr. Swanholt has substantial experience in a broad range of litigation matters, with an emphasis on product liability, pharmaceutical defects, complex commercial and consumer class action litigation, toxic torts, as well as cybersecurity, privacy, and data protection. He has defended individual and class action product liability and toxic tort claims in a variety of industries, including consumer products, fashion, pharmaceuticals, off-road vehicles, industrial safety equipment, asbestos,...

Kristin M. McGaver Litigation Attorney Foley & Lardner Milwaukee, WI

Kristin McGaver is an associate and litigation lawyer with Foley & Lardner LLP. She is a member of the firm’s Business Litigation & Dispute Resolution Practice.

Kristin was a law clerk for the Honorable Harry D. Leinenweber, U.S. District Court for the Northern District of Illinois.

During law school, Kristin was a summer associate at Foley and a student attorney with the Hennepin County Attorney’s Office in its mental health division in Minneapolis, Minnesota. She was also a judicial extern for the Honorable John R. Tunheim, U.S. District Court for the District of...