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New York and New Hampshire Advance Efforts to Enhance Safety of Consumer Products

State authorities in New York and New Hampshire recently took separate actions to further enhance the safety of consumer products sold in their states. The actions taken in New York affect clothing storage units and crib bumper pads while the action taken in New Hampshire involves upholstered furniture.

Specifically, legislation enacted into law in New York last August (SB 1627-B) prohibits effective from 11 November the retail sale of new free-standing clothing storage units that do no conf0rm to standards endorsed or established by the U.S. Consumer Product Safety Commission or, if no such standards exists, by a standard established by ASTM International (including ASTM F2057) that requires furniture to contain a tip restraint device and carry a permanent warning label. CSUs covered by this action must be free-standing and measure at least 27 inches in height, including chests, dressers, armoires and bureaus. The term “tip restraint device” is defined as a mechanism designed to reduce the risk of furniture tipping over. This mechanism may include straps, wall brackets, steel cables, or plug and screw sets.

CSUs that do not meet the requirements of the aforementioned standards may be still be sold in New York if they (i) fall outside the scope of such standards, (ii) contain a compatible tip restraint device, and (iii) carry a permanent warning label. Alternately, the CSUs would have to fall outside the scope of such standards and the retailer must (i) maintain in stock and prominently display within the store tip restraint devices available for sale that are compatible with such furniture, and (ii) post a notice in a conspicuous location containing certain warning language.

Earlier this year CPSC Deputy Executive Director DeWayne Ray urged importers, manufacturers, distributors and retailers of CSUs to ensure that their products comply with all applicable current voluntary safety standards, including all referenced standards and requirements contained in the latest revision of ASTM F2057-17, Safety Specification for Clothing Storage Units (published on 1 October 2017). Ray also indicated that the CPSC’s Office of Compliance and Field Operations will regard non-compliant CSUs as having a defect that could present a substantial product hazard under Section 15(a) of the Consumer Product Safety Act. If any such products are encountered, the CPSC will initiate an investigation and seek protective action whenever appropriate. The law requires any product that presents a substantial product hazard to be refused entry into the United States or to be recalled if that product is already in circulation in the U.S. marketplace.

The New York legislature also recently approved a bill (SB 3788) prohibiting effective from 12 October the sale of crib bumper pads as an accessory to a crib or as a separate item. The term “crib bumper pad” is defined in the legislation as a pad or pads of a non-mesh material resting directly above the mattress in a crib, running the surface area of the crib or along the length of any of the interior sides of the crib. This definition does not cover mesh liners.

For its part, New Hampshire has banned the sale of residential upholstered furniture containing in its fabric or other covering, or in its cushioning materials, more than 0.1 percent of a flame retardant chemical or more than 0.1 percent of a mixture that includes flame-retardant chemicals. This prohibition does not apply to (i) used upholstered furniture, including antique upholstered furniture; (ii) upholstered furniture purchased for public use in public facilities that is required by the state or by local fire codes to meet specific flammability standards that cannot be reasonably met without the use of flame retardants; (iii) upholstered furniture that includes electronic or electric components; and (iv) mattresses.

The New Hampshire prohibition will apply to furniture (i) manufactured prior to 1 January 2020 and (ii) imported into the state or otherwise purchased or acquired by a retailer or wholesaler for sale or distribution in the state prior to 1 January 2021. Products that meet the following requirements will be deemed in compliance with this prohibition: (i) upholstered furniture bearing a label or accompanied by a certificate indicating compliance with California BPC section 19101, as amended; and (ii) upholstered furniture bearing a label, as prescribed by California BPC section 19094 (2014), indicating that the product’s upholstery materials “contain NO added flame retardant chemicals.”

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