A.
After January 1, 2020 no person shall manufacture, sell, offer for sale, or distribute within the municipality any covered product that contains, or a constituent component of which contains, a prohibited flame retardant chemical at levels above 1,000 parts per million.
1.
For purposes of this subsection, any consumer product safety standard adopted under federal law that establishes allowable levels of a prohibited flame retardant chemical that covered products may contain is presumed to establish the maximum allowable level of the chemical that may be used in a covered product that are sold or offered for sale in the municipality, and the federally established level if equally or more protective is hereby incorporated by reference and may be enforced under this section.
B.
Prohibited flame retardant chemicals include, but are not limited to, any chemical that meets both of the following criteria:
1.
A functional use for the chemical is to resist or inhibit the spread of fire, or as a synergist to such chemicals, including, but not limited to, any chemical for which the term "flame retardant," or a synonymous term, appears on the Occupational Safety and Health Administration substance safety data sheet pursuant to subdivision (g) of Section 1910.1200 of Title 29 of the Code of Federal Regulations.
2.
The chemical is one of the following:
a.
A halogenated, organophosphorus, organonitrogen, or nanoscale flame retardant chemical;
b.
The penta or octa mixtures of polybrominated diphenyl ethers, the deca mixture of polybrominated diphenyl ethers (PBDEs), or decabromodiphenyl ether (chemical abstracts service number 1163-19-5);
c.
Antimony (chemical abstracts service number 7440-36-0);
d.
A chemical defined as a "designated chemical" under Section 105440 of the California Health and Safety Code; or
e.
A chemical listed on the Washington State Department of Ecology's list of Chemicals of High Concern to Children in Section 173-334-130 of Title 173 of the Washington Administrative Code, and identified as a flame retardant or as a synergist to flame retardants in the rationale for inclusion in the list.
C.
The prohibitions contained in this section shall not apply to the following:
1.
The sale, offer for sale, or distribution of a covered product by a retailer who purchased or acquired the product before January 1, 2020;
2.
Any transactional activity involving a covered product that occurs subsequent to the first sale at retail; or
3.
A person granted a waiver from compliance with the prohibitions of this section by the department, so long as the waiver is in effect.
D.
Labeling. A manufacturer of a covered product, excluding juvenile products, that is sold, offered for sale, or distributed in the municipality and which would be required to have a label under the California Business & Professions Code § 19094 (a upholstered or reupholstered furniture product required to meet the test requirements of California Technical Bulletin 117-2013) shall place on a label affixed to the product the same statement as required by the State of California.
E.
Proof of compliance; waivers.
1.
A person who distributes, sells or offers to sell a covered product in the municipality may demonstrate compliance with this section by retaining and making available for inspection upon request a written statement from the product manufacturer or supplier attesting that a specific covered product does not contain a prohibited flame retardant chemical. The statement shall include contact information and identify specific product(s) by name, model year(s), and SKU or UPC number(s). When requested during an inspection or after service of a notice of violation under chapter 15.05, distributors and retailers shall have 60 days to obtain the statement from the product manufacturer or supplier. The department may accommodate other reasonable means of demonstrating compliance, including proof used to comply with similar requirements in place in other states or localities.
2.
A person who manufactures, distributes, sells, or offers to sell a covered product in the municipality may apply to the director in writing for a waiver from strict compliance with this section. The application shall describe the scope and duration of the waiver requested, and demonstrate that strict compliance shall cause undue hardship, practical difficulty to the applicant, or is not feasible. The director shall respond in writing within 60 days, and may inform the applicant that additional time is needed to consider the application, not to exceed 120 additional days. An application for a waiver may be granted in whole or in part, and shall be crafted narrowly to address the basis for the request. The director's decision to grant or deny the application shall be in writing and state it is a final decision. The director may revoke a waiver granted under this subsection at any time if the director determines the application was made in bad faith, contained false information, or the grounds for the application for the waiver have ceased to exist.
F. "Covered product"1. 2. 3. 4. 5. "Establishment" "Halogenated chemical" "Juvenile product" "Manufacturer"1. 2. 3. "Organonitrogen chemical" "Organophosphorus chemical" "Reupholstered furniture" "Upholstered furniture"
Definitions. The following definitions apply to this section:
means upholstered furniture, reupholstered furniture, or juvenile products, any component, internal or external, and casings for electronic products, of which has been made with or contains a flame retardant chemical. Covered products do not include:
Used or second-hand furniture that is not reupholstered;
Used or second-hand juvenile products;
Products that are not primarily intended for use in the home, such as products or components for motor vehicles, watercraft, aircraft, or other vehicles;
Child restraint systems, as regulated under 49 CFR Part 571; or
means any store, stand, booth, concession, or any other business enterprise that engages in the sale of covered products in the municipality, and/or in the business of reupholstering residential furniture in the municipality.
means any chemical that contains one or more halogen elements, including fluorine, chlorine, bromine, or iodine.
means a new, not a previously owned, product designed for residential use by infants and children under 12 years of age, including but not limited to a bassinet, booster seat, changing pad, floor play mat, highchair, highchair pad, infant bouncer, infant carrier, infant seat, infant swing, infant walker, nursing pad, nursing pillow, playpen side pad, portable hook-on chair, stroller, and children's nap mat. Juvenile product does not include child or infant restraint systems, toys, or clothing.
means a person who, in the course of business,
Manufactures a covered product;
Affixes a brand name to a covered product; or
Is the importer or first distributor in the United States of a covered product that was imported into the United States and if the person who manufactured or assembled the covered product or whose brand name is affixed to the covered product does not do business in the United States; in this subparagraph, "distributor" means a person who sells covered products on a wholesale basis.
means any chemical that contains one or more carbon elements and one or more nitrogen elements.
means any chemical that contains one or more carbon elements and one or more phosphorus elements.
means furniture whose original fabric, padding, decking, barrier material, foam and/or other resilient filling has been replaced by an establishment and that has not been sold since the time of such replacement.
means new, not previously owned furniture, including mattresses, box springs and other foundational bedding, made with soft materials including but not limited to fabric, padding, decking, barrier material, foam, and/or other resilient filling.
(AO No. 2019-15(S), § 1, 3-19-2019)