Fire Retardant Restriction and Labeling Efforts in New York City

On December 31, 2021, New York Governor Kathy Hochul signed a new law that places obligations on manufacturers of “electronic displays”, upholstered furniture and consumer mattresses. As of January 2024, all new products listed below will be banned for sale in New York:

  • Any “electronic screens” sold for personal residential use containing organohalogen flame retardants intentionally added to the enclosure or support.

  • Any new upholstered furniture or mattress containing intentionally added halogenated, organophosphate, organo-nitrogen or nanometric chemical flame retardants.

The organohalogen restriction for “electronic displays” is aligned with previous requirements of the European Union Ecodesign Directive for displays which came into effect in 2021. New York law defines “electronic display” such as: a consumer product with a display screen and associated electronics which, as its primary function, displays visual information from wired or wireless sources and is available for purchase by individuals or households for a personal use in a residential space, excluding displays with a screen area equal to or less than one hundred square centimeters or fifteen and a half square inches, projectors, virtual reality headsets, all-in-one video conferencing systems and displays integrated with devices that are not available for purchase as separate products by end users.

From the end of 2022, the new law also requires all manufacturers of “electronic displays” to declare any flame retardant content used in the housing or holder of the electronic display, as a prerequisite for the sale of their products in the. New York State. This new compliance burden will require coordination with upstream suppliers and component manufacturers to collect this information and impose these new restrictions. The law also prohibits the upholstery or repair of any furniture using halogenated, organophosphate, organo-nitrogen or nanometric chemical flame retardants as of January 2023.

This new law may present an early opportunity to test the applicability of federal pre-emption provisions under the Toxic Substance Control Act (TSCA). Under the TSCA, several halogenated flame retardants are currently subject to risk assessments by the EPA. Among other pre-emption provisions, the TSCA (as amended in 2016) warns any state to “establish[ing] a law… or otherwise restricting the manufacture, processing, commercial distribution or use of »chemicals subject to TSCA review. This preemption begins when the scope of the TSCA risk assessment is defined and ends when the EPA has issued a final risk assessment or three years after the start of the assessment. In addition, depending on the scope and outcome of the TSCA risk assessments, states may be permanently prohibited from restricting certain uses of a chemical.

© 2022 Beveridge & Diamond PC National Law Review, Volume XII, Number 12

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