The Consumer Product Safety Commission (CPSC) has proposed a Direct Final Rule implementing the new federal upholstered furniture flammability standard.  The Direct Final Rule, published by the CPSC on April 9, 2021, would codify California’s TB 117-2013 flammability standard as mandated by Congress, but with the following significant clarifications:

• Labeling compliance date extended to June 25, 2022.  If the Direct Final Rule is finalized, products will not need to be labeled as compliant until June 25, 2022.  However, all products must still meet the substantive requirements of TB 117-2013 as of June 25, 2021.  Significantly, although the CPSC notes that it has the authority under the Flammable Fabrics Act to extend the substantive compliance date for up to one year, it has explicitly chosen not to do so. According to the CPSC, up to 95% of all upholstered furniture already complies with TB 117-2013, rendering such an extension unnecessary.

• Exemption for current inventory.  The original law as passed by Congress did not contain any exemption for existing inventory. In the Direct Final Rule, however, the CPSC has proposed that the new law apply only to upholstered furniture “manufactured, imported, or reupholstered” on or after June 25, 2021.  Existing inventory would thus fall outside the scope of the new regulation.

If the CPSC receives “significant adverse comment” before May 4, 2021, it will withdraw the Direct Final Rule and the clarifications it provides.  Affected companies should therefore consider:

• Creating a contingency plan if the Direct Final Rule is withdrawn or otherwise challenged. It will not be clear until at least May 4, 2021 whether the Direct Final Rule will be finalized as written.  Companies should therefore continue to make every effort to meet both the substantive and labeling requirements before June 25, 2021 in the event the Direct Final Rule does not become final.  Furniture industry stakeholders will recall the significant compliance difficulties generated in 2018 by legal challenges to EPA’s decision to delay the implementation of TSCA Title VI.  Those legal challenges ultimately forced furniture companies to comply with the regulation in a matter of weeks rather than months, as originally contemplated.  By planning as if the Direct Final Rule will not become final, companies can proactively mitigate compliance difficulties if a similar situation arises and—even if it does not—position themselves well for both short-term and long-term compliance with the new flammability law.

• Evaluating current inventory. Even though the Direct Final Rule would exempt current inventory, companies should consider reviewing their inventory to determine if any products do not comply with TB 117-2013 and analyze the risks of selling those products.  Although it would not be illegal to sell non-compliant products after June 25, 2021, the sale of any such products could potentially be used as evidence against a company in private litigation in support of an argument that the company sold a product it knew or should have known posed a safety hazard.

• Monitoring public comments. Companies should carefully monitor the public docket for the Direct Final Rule for any comments that may qualify as “significantly adverse.” A “significant adverse comment” is a comment explaining why the rule would be inappropriate, including an assertion challenging the rule’s underlying premise or approach, or a claim that the rule would be ineffective or unacceptable without change.”  Although the CPSC indicates in the Direct Final Rule that it does not expect significant adverse comments, it is impossible to predict public response.