For nearly four decades, furniture manufacturers have been required to pass an “open-flame” test, which requires furniture be able to withstand 12 seconds of exposure to an open flame. As of January 1, a new regulation approved by the Department of Consumer Affairs, Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation took effect that requires a much-lower threshold of fire safety.

Known within the industry as Technical Bulletin 117, the open-flame test has been in place since 1975 and essentially served as the de facto national standard that “effectively required furniture manufacturers to inject flame-retardant chemicals into all upholstered furniture sold in the state.”

Fire fatalities down since open-flame test

Since the regulation has been in effect, state regulators admit that fire fatalities are down significantly.

“According to existing fire statistics, residential upholstered furniture fires have declined significantly in California and across the nation over the last two decades,” state regulators wrote last year in their “Initial Statement of Reasons” for revising the regulation. “National fire incidents related to upholstered furniture have dropped 80 percent resulting in a significant reduction in consumer deaths.”

Yet, the growing concern over exposure to chemicals has flipped the opinion of regulators, who now say that “flame retardant foam can actually increase smolder propensity.” In its place, the state will require the less strict smolder test, which can be passed without the use of chemical fire retardants.

Chemical company suing to maintain regulation

Enter one of the nation’s leading chemical companies, which says that its products have helped keep consumers safe from house fires. Chemtura Corporation believes that the revised rules impose weaker fire safety standards and diminish the progress in fire safety for upholstered furniture.

“The revised rules require furniture makers to pass only a cigarette ‘smolder test,’ and eliminates a vital requirement — required by the law mandating the Bureau to establish fire safety standards — that all filling material used in upholstered furniture pass an ‘open-flame’ test to replicate a candle, match or lighter flame,” Anne Noonan, Senior Vice President at Chemtura, said in a recent press release. “If left unchallenged, California’s revised, weakened fire safety standard could tragically lead to more fires and more injuries, deaths and property damage nationwide.”

The chemical company points to the relatively common occurrence of open flames causing structure fires. Earlier this year, a house fire in Escondido sent one person to the hospital after “a lit candle burst into flames in the guest home and quickly spread.”

To thwart regulators’ plans, the company has filed a lawsuit to preserve the nearly four decade old rules that govern upholstered furniture flammability.

“Our lawsuit asks the court to overturn the new regulation on the grounds that the Bureau overstepped its statutory authority first, by narrowing the standard to exclude open flame testing requirements and, second, by basing its rationale to change the standard on human health concerns with respect to flame retardants, an area of regulation well outside the jurisdiction and expertise of the Bureau,” Noonan said on behalf of Chemtura in a recent press release.

Public fear of chemicals

The role reversal — with regulators weakening regulations and industry defending tougher standards — is a byproduct of a new emphasis on the chemical industry. Since a blistering series published by the Chicago Tribune in 2012 that detailed the industry’s political tactics, the chemical industry has been a prime target of government regulators. Shortly after the Tribune’s report, Gov. Jerry Brown announced plans for the regulatory overhaul of flame retardants.

“Toxic flame retardants are found in everything from high chairs to couches and a growing body of evidence suggests that these chemicals harm human health and the environment,” Brown said in June 2012. “We must find better ways to meet fire safety standards by reducing and eliminating—wherever possible—dangerous chemicals.”

Despite the growing public fear of chemicals, many toxicologists and medical experts caution against the rush to ban chemicals.

Tom Osimitz, a toxicologist and chair of the scientific advisory committee of the North American Flame Retardant Alliance, defended the important role that chemicals play in fire safety in an interview with PBS NewsHour. He also delivered an important reminder: exposure to a chemical doesn’t inherently cause injury.

“I think if you look at the CDC, the Center for Disease Control, which measures chemicals on a routine basis in blood, they’ll point out quickly too that the mere presence of a chemical does not necessarily lead to you to conclude that there’s an adverse effect, or even that it could eventually cause an adverse effect,” he said. “So one has to be very careful looking at that, generally speaking.”

He added, “There are two or three classic chemicals in the past that may have had some issues, but as everything gets better, and there’s continuous improvement in chemical design — design with reduced toxicity, increased biodegradation. Those are things that have been happening over the last decade.”

For more on California’s obscure regulatory system, check out CalWatchdog.com’s July 2012 investigation into how California’s regulations are being exported overseas.

By LAER PEARCE

California lost about five and a half companies a week to other states in 2011, as the mass migration to avoid California’s hostile business environment grew.  You would think a governor who is hungry for tax revenue — and California has one of the highest corporate tax rates in America — would do something to slow the tide, but Jerry Brown’s new budget proposal tells another story.

First, bureaucracies like the California Air Resources Board that are highly efficient in throttling businesses have nothing to fear in the new budget. Brown is all-in on CARB’s anti-global warming campaign, as AB 32 implementation is unscathed in the budget.  Brown is not thinking about the war on greenhouse gases’ expected $180-billion-a year hit on the California economy; rather, he’s focused on the $1 billion in new 2012-2013 tax revenues he anticipates collecting under the state’s new cap and trade law.

But that’s just the tip of the supposedly rapidly melting iceberg.  Tucked away in the “making government more efficient” section of the budget is a proposed new anti-business government bureaucracy, the Business and Consumer Services Agency, that should speed up the flight of employers from California.

Super-Agency

Under Brown’s proposal, the Department of Consumer Affairs, the Department of Fair Employment and Housing and a handful of business licensing and inspection departments will be merged to form the new agency.  Fair enough.  Maybe they will be able to find some efficiencies.  But the red flag for business owners is this:  Into this amalgamation of bureaucracies that fundamentally see business as the enemy, Brown is dropping “the newly restructured Department of Business Oversight.”

Scan the list of 380 state agencies and you’ll find no Department of Business Oversight, so it appears this isn’t a case of restructuring an existing agency, but of creating an entirely new one.  California’s already excessive amount of business oversight is one primary reason why CEO Magazine listed California as the worst state for business for the last four years in a row.  Creating a new department tasked to impose yet more controls on business, and placing that department in an environment that’s already steamy with anti-business hubris, will only make things worse.

How anti-business are the foundational agencies of the new Business and Consumer Services Agency?

The Department of Consumer Affairs has 40 different regulatory entities like the Professional Fiduciaries Bureau, the Telephone Medical Advice Services Bureau and the Hearing Aid Dispensers Bureau, each responsible for regulating a segment of the California economy.  Under a two-year initiative to increase the oversight it imposes, the department is seeking to quadruple the number of investigators on its staff and to add a new Deputy Director for Enforcement and Compliance.

The Department of Fair Employment and Housing opens about 4,000 new cases a month where a business, landlord or lender is charged with discrimination — 195,000 cases in total in 2010.  If a complaint goes forward, the department’s attorneys represent the complainant at no charge, and the average settlement against businesses, once charges are filed, is $40,000.

New Parasites

Certainly, there are scoundrels out there, along with bigots and guys who don’t know where to keep their eyes, hands or comments, and any state needs agencies to corral them.  But Brown appears to be up to much more with his new super-agency.  This new agency would assuredly go well beyond that charter, creating new opportunities for the attorneys that feed off of California businesses — attorneys who gave well over $1 million to Brown’s election campaign in 2010.

If California had a pro-business governor, his budget would have proposed a new pro-business department.  That we have instead a new Department of Business Oversight in a new Business and Consumer Services Agency tells us a lot about the kind of governor — and the kind of state — we have.

Laer Pearce, a veteran of three decades of California public affairs, is completing a book on California’s impending collapse, “Crazifornia: Tales from the Tarnished State.”