BY GARY JAMES
The International Sleep Products Association scored several major victories on the chemical regulation front last year, protecting the sleep products industry from onerous new rules in several states, including California, Connecticut and Minnesota. But 2016 also promises to be an active year as the federal government, state legislators and even elected officials on a more local level consider new measures aimed at restricting the use of chemicals they deem to be hazardous.
While few—if any—of the chemicals under discussion for regulation are used in sleep products, there’s a real danger that the list of banned chemicals could be expanded in the future, generating new requirements for suppliers, manufacturers and possibly retailers to test, label and disclose chemicals to prove that products are safe. At the same time, the fact that chemicals, in general, are under increased scrutiny from policymakers is putting the subject in a brighter spotlight, leading to more media coverage. And, as a result, new concerns and fears about the safety of household products of all types are being raised in the minds of consumers. Complicating the situation is the ease with which misinformation can be shared via the web—a Wild West-like frontier where fact and fiction can be hard to differentiate and can appear to carry equal credibility.
“There’s a ton of misinformation out there,” says Bobby Bush, senior vice president of foam technology at HSM in Hickory, North Carolina, now part of Elite Comfort Solutions. “Over the years, the media have convinced the public that all foam—for all purposes—has fire retardant in it. Reporters simply aren’t doing their homework and, as a result, they have created the mistaken impression that bed producers still use FR chemicals that were effectively banned by the Environmental Protection Agency for use in foam on Jan. 1, 2005.”
Some individual mattress companies also use the web as a platform for making misleading “green” claims, magnifying the difficulty consumers face when trying to research the subject of mattress safety, according to ISPA. To help address the situation, ISPA created a “Mattress Fire Safety Facts” document that lays out key issues related to flame retardants and mattress safety. The document, posted on the ISPA website (www.sleepproducts.org), explains that U.S. mattress manufacturers meet flammability standards using barriers that are sewn into products during manufacture, as opposed to FR-treated foams.
“They do not spray or soak the finished mattress in any fire retardant chemical of any kind,” the FAQ states, tackling head-on one of the most widespread myths about the FR properties of mattresses. The fact sheet adds that today’s manufacturers do not incorporate fire retardant chemicals into mattress foams and that manufacturers are not required to use such chemicals to pass federal mattress flammability standards—16 CFR Part 1632 and 16 CFR Part 1633.
“ISPA has recently seen an uptick in media reports regarding the use of flame retardants in mattresses, including whether mattresses contain FR-treated foams to meet the Part 1633 standard,” says Ryan Trainer, ISPA president. “Unfortunately, the information presented in the media or discussed by policymakers is often inaccurate, incomplete or misleading. To assist ISPA members in responding to potential press and customer inquiries, we have created this new document that explains in simple terms how the industry meets its legal obligations to sell mattresses that comply with Part 1633.”
Current flame retardant approaches
To meet the requirements of 16 CFR Part 1633, U.S. bedding producers use a woven, nonwoven or knitted fabric in the form of either a panel or sock to create a flame-resistant barrier between a heat source and the foam—a mattress’ most substantial fuel load. That barrier material is designed to enclose the comfort layers inside a mattress and provide protection in one of two ways: 1) by preventing heat from an open-flame ignition source, such as a match or lighter, from penetrating through to the foam or 2) by blocking oxygen from reaching the fuel load.
Many sleep products manufacturers use barriers made from fibers that have silicon or another chemical embedded in them during the fiber extrusion process that give them inherent FR properties. In a few cases, producers may use barriers with flame-retardant modacrylic (or modified acrylic) fibers containing embedded antimony trioxide, but these types of fabrics are more commonly seen in draperies, curtains and scatter rugs.
Another option is topically treated rayon or other fibers, where safe chemicals with proven flame-
retardant properties—such as diammonium phosphate and ammonium sulfate (which also are used in food products)—are applied. Some luxury mattresses include wool, a natural fiber with inherent FR properties, to meet federal flammability standards.
According to Trainer, none of the chemicals used in mattress fire barriers “has any of the purported health issues associated with the FR chemicals that may have been used in some foams, but that hasn’t stopped some groups from targeting mattresses in their legislative efforts. ISPA spent a lot of last year explaining the differences between what we use and what the activists want banned, lobbying to minimize the impact of broad, poorly conceived anti-FR bills on the mattress industry and trying to keep the legislative efforts to regulate us more from spreading to other states.
“We have a good story to tell, but we are concerned about unnecessary new testing, labeling and certification rules regarding chemicals that just aren’t being used in mattresses and will simply increase manufacturing costs for no consumer benefit. Hopefully, reforming the federal Toxic Substances Control Act will discourage states from considering or enacting new state laws to regulate the industry.”
Enacted in 1976, the TSCA is the primary law governing the safety of chemical products, providing the EPA with authority to review and regulate chemicals in commerce. In 2015, both houses of the U.S. Congress voted to overhaul the law for the first time in 40 years, and now the House and Senate are working to reconcile differences between their approaches.
“If updates to TSCA become law, it should reduce some of the confusion that exists in the marketplace, where individual states have been pressured to create their own chemical management laws based on the claims of activists rather than scientific conclusions,” says Chris Hudgins, ISPA’s vice president of government relations and policy. “No matter what happens during the legislative process, TSCA reforms are expected to have some degree of pre-emption, even if it’s not as strong as we’d like, so that states at least would have to pause their own regulatory efforts if the EPA decides to act on a particular chemical. Right now, each state is doing its own thing.”
The state picture
Seven states have laws on the books regulating the use of hazardous chemicals in consumer products—California, Connecticut, Maine, Minnesota, Oregon, Vermont and Washington. In addition, more than a dozen states, plus the District of Columbia, are considering measures to restrict chemical use. The laws typically require states to identify “hazardous substances” and recommend maximum permitted levels, while imposing testing, labeling, reporting and use requirements on particular chemicals of concern, including FR chemicals, such as tris phosphate (TDCPP). Washington’s law, used as a model by some other states, lists 66 chemicals as hazardous.
Some state laws apply only to children’s products—generally defined as products intended for use by children 12 and younger. Other states have broader authority to require reporting and impose restrictions on a wide range of products. Two states—California and Maine—require alternatives assessments, in which a manufacturer may be obligated to study and assess the use of alternative chemicals in their products.
“The way these laws are written, regulatory bodies have a lot of latitude to expand the scope of their rulemaking—from children’s products to adult products, or from a few select chemicals to entire classes of chemicals,” Hudgins says. “As a result, these laws continue to change, with amendments, new legislation and expanded regulations constantly being considered.”
In Minnesota, for example, ISPA succeeded last year in getting mattresses removed from a new law that regulates certain flame retardants. Originally, the law would have banned all mattresses containing antimony in amounts greater than 100 parts per million. Separately, the law required the state to conduct a study regarding applicable flammability standards and laws for mattresses and other products. ISPA provided input to the Minnesota Department of Health as it developed that study, which was publicly released in February.
“The report takes no position on whether further legislation is needed to regulate flame retardants in mattresses,” Hudgins says. “Nevertheless, legislation has been introduced this year to regulate flame retardants in mattresses—in essence, reviving the provisions of the original bill that were dropped prior to passage and enactment last year.”
As in other states, the pressure for such changes is being driven by environmental groups working in tandem with the local firefighters union, Hudgins says, adding that ISPA will continue to work with Minnesota to protect mattress manufacturers from being hurt by such legislation.
ISPA also had success in Connecticut and several other states, amending or defeating bills that would have regulated certain chemicals that have limited use in mattress FR barriers. “In Connecticut, we secured amendments that eliminated antimony from the scope of the bill,” Hudgins says. However, the bill as amended did not pass the Connecticut legislature before the session ended in 2015. Two similar versions of the bill have been re-introduced this year but, at this point, neither targets chemicals currently used in mattresses.
Another legislative victory came in mid-2015 when ISPA persuaded the author of an FR labeling bill pending in the California legislature to exempt from its scope mattresses that meet federal flammability requirements. As originally introduced, the bill would have required manufacturers of a “foam crib mattress” and other juvenile products (which could have included at least twin mattresses marketed to children) to label their products and state whether or not the product contains flame retardants. The bill was patterned after a California law enacted in 2014 that requires similar labeling for upholstered furniture. As amended, the bill would have excluded mattresses that meet 16 CFR Part 1632 and 16 CFR Part 1633. The amended bill did not pass in 2015 and, at this point, appears unlikely to be enacted in 2016 either.
“Not only do these successes protect mattress manufacturers from costly new requirements today, they also help establish the precedent that mattresses should be exempt from these types of future regulatory requirements,” Trainer says.
In late 2015, Vermont finalized regulations to implement a 2014 law that requires manufacturers of children’s products, including mattresses intended for use by children 12 and younger, to notify that state regarding the use of certain chemicals in their products. Hudgins says the initial list of chemicals that require reporting does not include those typically used in bedding, but the state is allowed to add to the list in the future.
Vermont’s law is modeled on similar requirements contained in the Children’s Safe Products Act enacted by Washington legislators in 2008. That law authorized the state to regulate numerous chemicals used in children’s products, including “products(s) designed or intended by the manufacturer…to facilitate sleep, relaxation.” Manufacturers of such products must report to state authorities the use of any chemicals on the list. Filing requirements for the “bedding” category, which includes mattresses, began in 2014. Like Vermont, the list of chemicals that require reporting in Washington does not involve chemicals typically used in bedding at this time. The implementing regulations set deadlines for specific categories of companies based on gross sales, with the largest marketers of products, such as Wal-Mart, having the earliest deadlines.
In New York, the pressure to expand chemical regulation has spread from the state legislature down to the local level. Four counties—Albany, Rockland, Suffolk and Westchester—recently banned the sale of children’s products that contain antimony, benzene, lead, mercury, arsenic, cadmium or cobalt. Eric and Monroe counties are considering similar bans. Children’s products are defined as consumer products designed or intended for children 12 and younger and could include mattresses. In late January, the New York City Council held a hearing on an ordinance to ban children’s products that contain those seven chemicals, as well as formaldehyde.
According to Hudgins, several industries have challenged the new county laws, which are scheduled to take effect this year. “It is unclear at this point how these counties intend to enforce these laws,” he says. “The real goal of these local efforts is to keep the issue in front of the public and create more pressure on state regulators to act.”
To keep on top of these local initiatives and the many other actions being considered across the nation, ISPA partners with other trade associations and legal experts. The association also uses tracking software to stay on top of legislative developments at the state level.
The push to impose new restrictions on chemical use extends from state capitals to the halls of Washington, D.C., where—in addition to lawmakers’ reform of the TSCA—individual regulatory bodies are being pressured to get more involved in this issue.
In 2015, several consumer, medical and environmental groups petitioned the U.S. Consumer Product Safety Commission to initiate a rulemaking on flame retardants in mattresses, upholstered furniture, children’s products and electronic casings. The petition asks the CPSC to ban any of these products if they contain “any nonpolymeric, additive organohalogen flame retardant.” In response, ISPA submitted comments to the CPSC stating that mattresses produced in the United States do not contain additive organohalogen flame retardants and, thus, should not be subject to such a ban. As a matter of policy, ISPA also opposed proscriptive product-design requirements and banning entire families of chemicals without assessing individual chemicals and conducting a proper risk assessment analysis.
“Whenever these issues come up, we try to help officials understand that, if our products don’t have these chemicals, we shouldn’t have to face new testing, labeling and documenting obligations to prove that our products are safe,” Hudgins says.
Also under review by the CPSC is a proposed rule issued by the Chronic Hazard Advisory Panel in late 2014 that would permanently ban five phthalates in any amount greater than 0.1% from children’s toys and child care products. The proposed ban covers DINP, DIBP, DPENP, DHEXP and DCHP while leaving in place the CPSC’s original ban on DEHP, BBP and DBP. Based on guidelines in place with regard to currently banned phthalates, the new rules could apply to certain mattresses and sleep surfaces designed for use by children age 3 or younger that are covered in vinyl or other plasticized materials.
On another front, the EPA last year added three categories of flame retardants—including brominated phthalates, the chlorinated phosphate esters group and tetrabromo bisphenol A and related chemicals—to its Toxic Substances Control Act Work Plan, asking for public comment on each of the groups. Based on input from industry members, ISPA understands that U.S. mattress manufacturers do not use materials that contain chemicals falling under the new FR categories EPA has identified.
The bottom line
According to ISPA officials and major industry suppliers, most chemicals cited in the bills and measures being considered by federal, state and local governmental bodies “are not used in sleep products at all,” Hudgins says. “And, in the few cases where the industry does use a chemical of concern, such as antimony, we’ve worked together with policymakers to keep the thresholds at a level that is both safe for the public and workable for the industry.”
Still, the very fact that chemicals are in the news more frequently is creating challenges for the industry. “The media, and many consumers, tend to assume that all chemicals are bad and that if chemicals are used in the production of bedding, that health is at risk,” Hudgins says. “There’s a general misunderstanding that if a bed contains any chemicals, something needs to be done.”
In some cases, Hudgins says, today’s laws are being written to say a product cannot contain any level of a particular chemical, even if there’s no evidence to prove that trace amounts pose a risk. “With improved testing equipment that can identify even infinitesimal levels of chemicals, it can be impossible to show that a product has absolutely ‘zero’ of something.”
In addition to setting excessively low compliance thresholds, some new laws at the state level also are giving regulatory bodies expanded authority to pursue their own agendas. “Washington state, Vermont and California have all granted very broad authority at the department level for environmental regulators to initiate new rulemaking and expand the scope of regulation to include new chemicals, groups of companies and products. That’s a challenge, because the goal line is constantly moving,” Hudgins says.
Hudgins adds that while ISPA has been successful in its efforts to exempt the industry from burdensome regulations so far, “this issue is going to attract more and more attention from policymakers. The scope of what they’re regulating is certain to grow.”
Mattress foamers strive to keep consumers—and lawmakers—educated about why their products should be exempt from flame retardant bans
Although flame retardants are not typically added to mattress foam because the vast majority of sleep product manufacturers meet federal FR requirements using fabric barriers rather than chemical applications, the polyurethane foam industry continues to face an uphill battle when it comes to educating legislators and regulators about why mattress foam should be exempt from proposed chemical bans.
“In a few of the state initiatives designed to regulate the use of flame retardant additives in home furnishings, mattresses have sometimes been included in draft bills,” says Bob Luedeka, executive director of the Polyurethane Foam Association, based in Loudon, Tennessee. “It takes constant vigilance, but our industry—working together with other associations such as ISPA—has been successful in educating lawmakers so that mattresses can be excluded from such regulations.”
Also posing an ongoing challenge for the industry is the vast amount of inaccurate information circulated on the web and through the media on the subject of mattress safety, Luedeka says.
“Since the development of the internet and social media platforms as popular, if not dominant, resources for researching home furnishings purchases, there has been a great deal of information posted related to mattresses,” Luedeka says. “While much of the information is useful and beneficial to consumers, some posted and published opinions and critiques contain inaccurate or misleading information that may cause consumers unnecessary concern about items they may be considering for purchase.”
Many bedding producers and suppliers have been trying to counter these myths by providing information about sleep product construction on their own websites and in product literature. The Sleep Products Safety Council, part of the International Sleep Products Association, also offers resources that address topics related to mattress safety. The CertiPUR-US website (http://certipur.us) is a helpful source for foam-
“Unfortunately, given the frequency of questions and the fact that misinformation posted online is often re-posted to form a growing body of ‘evidence’ that never seems to go away, it may be necessary to make a more concerted effort to help set the record straight,” Luedeka says. “While consumer questions are currently being addressed by companies and individual trade associations, it may be valuable to add the authoritative voice of a coalition of industry stakeholders.”
To this end, the PFA and ISPA are beginning discussions to examine and evaluate ways that common questions and concerns could be addressed as a collaborative effort. “A joint effort might provide a more effective means of correcting inaccuracies and providing scientifically supported answers to key questions, adding another level of comfort to the bed-buying experience,” Luedeka says.
In the meantime, Luedeka encourages bedding producers to keep a close eye on service inquires related to mattress safety. For their part, retailers should pay attention to shoppers’ questions that come up during sales conversations at the store level. He advises companies to systematically monitor and categorize this activity and to develop answers to the most frequently asked questions that can be posted online and used by retail sales associates.
In addition, mattress manufacturers should monitor whether consumers are submitting safety complaints about their products to the U.S. Consumer Product Safety Commission. By registering at www.saferproducts.gov, a CPSC website, a manufacturer will receive notice from the CPSC of a consumer complaint and be given the opportunity to investigate and respond to the matter during a 10-business day response period before possible publication.
The process of educating the public and government officials about the ins and outs of polyurethane foam can be challenging. For example, consider the U.S. Environmental Protection Agency’s recent proposal to impose new rules on certain adhesives and coatings used in consumer products, which may contain unreacted TDI. The proposed rules contained vague language that could have been misinterpreted to apply to finished polyurethane foams used in mattresses—even though the TDI in those foams is completely reacted, not available for potential exposure and not considered a hazard. ISPA, working with other industry groups, including the PFA and the American Chemistry Council, is seeking EPA clarification that the proposed rule was not intended to apply to mattress foams.
Fiber producers rework flame retardant barriers in light of new OSHA regulations
Cotton treated with boric acid—once a popular FR barrier solution for mattresses—has been phased out of most sleep products during the past year as a result of new guidelines adopted by the U.S. Occupational Safety and Health Administration.
Beginning June 1, 2015, OSHA implemented new hazardous chemical labeling requirements that call for materials containing boric acid to be labeled with a warning pictogram prior to being shipped from a supplier to a workplace. OSHA adopted the requirements to bring its protocols into alignment with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals, which lists boric acid as a hazardous material. Shipments of products containing a specified level of boric acid are required to carry a “health hazard” label with the image of an exploding heart and warning language in an effort to protect workers.
As a result of this change, companies such as Jones Fiber Products, whose line had included a number of boric acid-treated FR fabric barriers, have dropped these products in favor of other constructions that don’t require this type of labeling.
“Boric acid has been in use by the industry for many decades and has long been proven to be safe,” says Kenny Oliver, president of the Humboldt, Tennessee-based supplier. “It underwent rigorous testing in the early 1970s when CFR 1632 was passed and again in the mid-2000s when CFR 1633 went into effect. There were a lot of questions about product safety at both points in time and, through research and analysis, those questions were all answered.”
Despite boric acid’s proven safety, Jones Fiber opted to develop products that don’t use the chemical. The new line features a proprietary combination of untreated cotton and other fibers. Cotton is an effective insulator and thermal barrier, Oliver says, and when blended properly with certain other fibers, provides “excellent char strength” that aids in preventing oxygen from reaching the combustible components inside the mattress cavity.
“We started developing this product several years ago,” he says. “We knew we better have a plan on the shelf because, despite the strong science, there were still some detractors on the boric acid issue.” Jones has transitioned nearly all of its customers to its new barrier products, with the exception of a few small producers that prefer to continue using boric acid-treated cotton. “In that case, our shipments carry the OSHA-mandated label,” Oliver says.
To help business partners stay on top of the issue of chemical safety, Jones Fiber is “constantly educating our customers and their customers,” Oliver says. “We want them to know what’s out there, what’s going on, what’s proper and what’s not.”
CertiPUR-US foam program expands its efforts
Participation in the CertiPUR-US product certification program continues to grow, as foam producers and their customers—both manufacturers and retailers—find the voluntary registration process to be an effective way to provide consumers peace of mind about the chemical content of mattresses and other furnishings containing flexible polyurethane foam.
Nearly 30 U.S. and international foam producers have had foam products certified through CertiPUR-US. To qualify for certification, foams are subjected to rigorous chemical and physical testing at one of four independent laboratories to verify that they comply with all CertiPUR-US Technical Guidelines. In addition to Hall Analytical in the United Kingdom, Eurofins in Denmark and TUV Rheinland in Germany, Intertek in the United States was recently approved as a CertiPUR-US lab.
CertiPUR-US guidelines include five core requirements: Foams must be made without the use of chlorofluorocarbons or other ozone depleters; PBDE, TDCPP or TCEP (“tris”) flame retardants; mercury, lead or other heavy metals; formaldehyde; and phthalates regulated by the U.S. Consumer Product Safety Commission. In addition, foams must demonstrate total volatile organic compound emissions levels of less than 0.5 parts per million for indoor air quality and they must pass physical performance tests for durability.
Once a foam has been certified to meet these requirements, it is qualified to carry the CertiPUR-US mark and logo. Re-testing foam to maintain certification must be done annually and companies that certify foams are subject to random verification testing.
In addition to foam suppliers, 350 mattress/furniture manufacturers and retailers also are active in the CertiPUR-US program. These companies qualify to use the CertiPUR-US seal on specific products they sell by working with their suppliers to provide documentation that shows the products contain certified foam. Manufacturers and retailers can list as many brands as they want as complying with the standard, if they follow the process of approval spelled out by the program. Listings are free.
“When consumers see the CertiPUR-US seal, they can be confident that the flexible polyurethane foam inside meets CertiPUR-US standards for content, emissions and durability and has been analyzed by independent, accredited testing laboratories,” says Michael Crowell, executive director of the Rochester Hills, Michigan-based program. Launched in 2008, CertiPUR-US is administered by the nonprofit Alliance for Flexible Polyurethane Foam.
Virtually every major foam supplier certifies foam products through CertiPUR-US and the list of participating bedding manufacturers and retailers is a “who’s who” of the industry, Crowell says. In 2015, the program received a major boost when the Serta brand announced that all flexible polyurethane foams contained in its mattresses manufactured in the United States and Canada now are being certified through the CertiPUR-US program. The Simmons brand, an early adopter of the program, uses only certified foams, and Sealy recently added a number of product lines.
Later this year, CertiPUR-US plans to launch a new set of standards for molded foam and expects to later expand the program’s scope to include molded foam pillows.
To help consumers and industry members more easily find information about the CertiPUR-US, the program recently updated its website (http://certipur.us) with a new series of videos. On several website pages, a friendly host named Nora welcomes visitors and shares details about how companies can apply to become participants in the program. In addition, the site features two consumer-oriented videos that are designed to be easily downloaded and embedded for use on company websites or in point-of-purchase applications. The website contains other resources, including CertiPUR-US Technical Guidelines, a frequently asked questions document and promotional tips for retailers.
A new ad and publicity campaign launched last fall with USA Today is helping to drive consumers to the website. CertiPUR-US has run ads in two regional editions of the national newspaper’s semiannual Sleep Sensitivity supplement, as well as its quarterly Home magazine, reaching millions of Americans. The coverage featured an editorial with tips about how to buy a mattress, including the importance of looking for CertiPUR-US certified foams.
“All of our public outreach efforts direct mattress buyers to our website for more information,” says Helen Sullivan, communications counsel for CertiPUR-US. “For the first time, we’re reaching out directly to consumers to help build awareness of the program and make it easier for them to find products that contain certified foam.”