January 31, 2023

Volume XIII, Number 31


January 30, 2023

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New NY Law Restricts Flame Retardants, Introduces Reporting Requirements

On December 31, 2021, New York Governor Kathy Hochul signed a new law that imposes obligations on manufactures of consumer “electronic displays,” upholstered furniture, and mattresses. Beginning January 2024, any new products listed below will be prohibited for sale in New York:

  • Any “electronic displays” sold for personal residential use containing intentionally added organohalogen flame retardants in the enclosure or stand.

  • Any new upholstered furniture or mattresses containing intentionally added halogenated, organophosphorus, organonitrogen, or nanoscale chemical flame retardants.

The organohalogen restriction for “electronic displays” is aligned with the European Union’s earlier EcoDesign Directive requirements for displays that took effect in 2021. The New York law defines “electronic display” as: a consumer product with a display screen and associated electronics that, as its primary function, displays visual information from wired or wireless sources and is available for purchase by individuals or households for personal use in a residential space, excluding displays with a screen area less than or equal to one hundred square centimeters or fifteen and one-half square inches, projectors, virtual reality headsets, all-in-one video conference systems, and displays integrated with appliances that are not available for purchase as separate products by end-users.

Starting at the end of 2022, the new law also requires that all manufacturers of “electronic displays” report any flame retardant content used in the enclosure or stand of the electronic display, as a precondition for selling their products in New York State. This new compliance burden will require coordination with upstream suppliers and component manufacturers to collect this information and impose these new restrictions. The law also prohibits the re-upholstery or repair of any furniture using halogenated, organophosphorus, organonitrogen, or nanoscale chemical flame retardants as of January 2023. 

This new statute may present an early opportunity to test the applicability of federal preemption provisions under the Toxic Substance Control Act (TSCA). Under TSCA, multiple halogenated flame retardants are currently undergoing risk evaluations by the EPA. Among other preemption provisions, TSCA (as amended in 2016) preempts any state from “establish[ing] a statute… or otherwise restricting the manufacture, processing, distribution in commerce, or use of” chemicals under TSCA review. This preemption starts when the scope of the TSCA risk evaluation is defined and ends when the EPA has issued a final risk evaluation or three years from the start of the evaluation. Additionally, depending on the scope and result of the TSCA risk evaluations, states may be permanently barred from restricting certain uses of a chemical substance.

© 2023 Beveridge & Diamond PC National Law Review, Volume XII, Number 12

About this Author

Ryan J. Carra Environmental Attorney Beveridge & Diamond Washington, DC

A Ph.D. in Organic Chemistry compliments Ryan's law practice.

Ryan uses his extensive technical background to counsel clients in the chemicals, products, and energy sectors regarding environmental regulatory issues. Ryan’s experience includes:

  • Advising clients on Toxic Substances Control Act (TSCA) matters, including implementation of the 2016 reform legislation.
  • Advising product manufacturers, retailers, and other clients on extended producer responsibility, waste classification, chemical hazard classification, chemical notification...
K. Russell LaMotte Environmental Attorney Beveridge & Diamond Washington, DC

Russ helps global companies navigate international environmental regulatory regimes and develop product compliance and market-access strategies.

He served for over ten years as an international lawyer at the United States Department of State, representing the U.S. Government in designing, negotiating, or implementing most of the major multilateral environmental and oceans agreements. His experience and representative matters include: 

Chemicals, Substances in Articles, and Product-Related Environmental Compliance

  • Advising chemicals, pesticides,...
Jeff D. Clare Regulatory Compliance Attorney Beveridge & Diamond San Francisco, CA

Jeff's practice focuses on regulatory compliance, particularly for products.

Prior to joining Beveridge & Diamond, Jeff was the Acquisition Project Manager at the Marin Agricultural Land Trust. In this role, he drafted, negotiated, and closed agricultural conservation easements with landowners, managed state and federal grant applications, and participated in public comment on relevant state and federal legislation. Before that, he was an Associate in the Real Estate practice of an AmLaw 100 law firm.

While completing his J.D. at the University of California Berkeley...