Text of Letter Requesting Fire Hazard Warning Label To CP?SC and FTC:

Furniture World Magazine

Dear Mr. Clark and Ms. Dunn: The National Association of State Fire Marshals files this joint petition for rulemaking with the Federal Trade Commission and the Consumer Product Safety Commission pursuant to 16 CFR Part 1 and 16 CFR 1051. Reference hereafter to the "Commission' shall mean the FTC and the CPSC. The National Association of State Fire Marshals represents the most senior fire official of each of the 50 states and the District of Columbia. Our members typically have statutory responsibility for code enforcement, fire incidence data, training, fire investigation and other matters pertaining to public safety. As such, our organization carefully monitors commercial, regulatory and other developments that may impact the severity and frequency of fire losses. Background: In 1993, the National Association of State Fire Marshals petitioned the CPSC (Petition FP 93-1) to issue a flammability standard for upholstered furniture incorporating the requirements of three standards now in effect in the State of California. a. Specifically, the petition urged the Commission to issue a flammability standard incorporating the requirements of Technical Bulletins 116, 117 and 133, issued by the Bureau of Home Furnishings and Thermal Insulation of the State of California. (58 FR 42301) These standards specify tests to measure the (a) resistance of components of upholstered furniture to ignition by small open-flame sources and cigarettes; (b) resistance of finished items of upholstered furniture to ignition by cigarettes; and (c) resistance of finished items of furniture to ignition from large open-flame sources. The California standards also contain labeling requirements. In support of the petition, NASFM provided information about deaths and injuries from fires involving upholstered furniture in California and in the rest of the United States. The petition asserted that although deaths and injuries from fires involving upholstered furniture in the United States declined appreciably from 1980 through 1989, during the same period the numbers of deaths and injuries from upholstered furniture fires declined at a much faster rate in California. NASFM provided data showing that the rate of fire deaths associated with upholstered furniture in the United States, excluding California, decreased from 4.97 per million people in 1980 to 3.04 per million in 1989, a decline of 39 percent. By comparison, in 1980 the rate of fire deaths associated with upholstered furniture in California was 1.14 per million people and in 1989 it was 0.41 per million, a decline of 64 percent. Thus, according to the data, non-Californians are over 7 times more likely to die in upholstered furniture fires than Californians. In providing these data, NASFM is not in this petition advocating indirectly the adoption of California's upholstered furniture flammability standards. Here is our point: Particularly if it appears that American consumers outside of California are not as safe as Californians from upholstered furniture fires, shouldn't they at the very least be warned about the known fire hazards posed by these consumer items? Nature of the Hazard : A common consumer product application of polyurethane foam is its use in upholstered furniture. Upholstered furniture may be ignited by smoldering cigarettes, small open flames (candles, matches and cigarette lighters, often as a result of child play), and large open flames when other household items are first ignited. Once ignited, nonfire resistant polyurethane foam (hereafter "polyurethane foam") burns rapidly, emitting large quantities of toxic gases such as carbon monoxide and cyanide. Polyurethane foam's rapid rate of intense heat release typically raises the room temperature to the point of flashover - that is, the point at which all contents of the room are ignited Clearly, polyurethane foam poses a hazard, in effect making small fires very large, and very deadly, very quickly. The textiles used in upholstered furniture may ignite easily, but provide little fuel and energy to the fire by themselves. Scope of -the Hazard: According to the United States Consumer Product Safety Commission's most recent estimates of fire loss, upholstered furniture and mattresses/ bedding account for roughly 10 percent of America's 428,000 residential fires each year. Approximately 4,300 Americans are seriously injured in these fires. Serious burns often require years of hospitalization, multiple surgeries, and physical and emotional therapy. Most telling, fires started in home furnishings containing polyurethane foam account for 16 percent of all residential fire deaths, making these items one of. the most dangerous of all products under the CPSC's jurisdiction. According to the CPSC, the following losses occurred as a result of 13,100 residential fires in 1996 involving upholstered furniture (1996 Residential Fire Loss Estimates): Upholstered Furniture Fires --The Technology Exists to Make Furniture Safer From Fire: Upholstered furniture in nursing homes, hospitals, prisons and other institutional settings, as well as the seats of airplanes, automobiles, boats and other modes of transportation are required to meet flammability standards far more stringent than those required for furniture manufactured for the American home. Much of the time, these standards are met with polyurethane foam that is treated to resist ignition. The technology exists to make the foam, and, thus, the upholstered furniture that contains the foam is safer. Manufacturers Are Aware of the Hazard: According to documents we have obtained (enclosed), foam producers generally provide warning notices with each batch of polyurethane foam provided to upholstered furniture manufacturers. We include one of the many available examples here: WARNING: All Polyurethane Foam Can Bum! In case of fire, serious personal injury or death can result from extreme heat, rapid oxygen depletion and the production of toxic gases. When ignited, polyurethane foam, like other organic materials, can bum rapidly and generate thick dark smoke and toxic gases leading to confusion, incapacitation, and even death. Do not expose polyurethane foam to any intense radiant heat or open flames, such as space heaters, open burning operation, cigarettes, welding operations, naked lights, matches, electric sparks or other intense heat sources. Depending upon the intended use of the polyurethane foam, suitable warnings should be passed on to the ultimate product users. (emphasis added) Notably, to our knowledge, these warning labels are not shared by the upholstered furniture manufacturers or their retailer customers with consumers who purchase furniture containing these products. This appears to us a gross failure to discharge the manufacturer/ retailer's duty to warn. Commission Rule Needed to Compel Hazard Disclosure to Consumers: Danger and safety problems with products has compelled the Federal Trade Commission to adopt a disclosure doctrine to require warnings. Failure to warn users of products of dangers that might result from the use of the products has been found to be an unfair practice under section 5 of the Federal Trade Commission Act. For example, the failure of a manufacturer of gasoline engine powered tractors to disclose to customers that the tractors were subject to fuel geysering (forceful ejection of hot fuel through a loosened gas cap) was an unfair practice in violation of Section 5 of the FTC Act. International Harvester Co., 104 FTC 949. Turning to the CPSC, upholstered furniture is a "product" of "interior furnishing" as those terms are defined in sections 2(e) and 2(h) of the Flammable Fabrics Act, 15 USC 1191(e) and (h). The CPSC has authority under section 4(a) of the Flammable Fabrics Act to issue a "flammability standard or other regulation, including labeling" for a product of interior furnishing if the CPSC determines that such a standard "'is needed to adequately protect the public against unreasonable risk of the occurrence of fire leading to death or personal injury, or significant property damage." 15 USC 1193(a). Clearly, the consuming public needs to be informed as to the extent of the fire hazard involved in the use of nonfire resistant polyurethane foam. Requested Relief: The National Association of State Fire Marshals believes that the withholding of these warnings by manufacturers and retailers of residential upholstered furniture containing polyurethane foam is not in conformity with the FTC Act and the Flammable Fabrics Act. Therefore, NASFM requests: 1. The Federal Trade Commission and/or the Consumer Product Safety Commission to, by rule, require upholstered furniture manufacturers and retailers to affix a label to such furniture sold in the United States containing polyurethane foam in a conspicuous place, bearing precisely the same flammability warnings provided by the polyurethane foam producers; and 2. As an interim step, NASFM requests your agencies to commence a voluntary fire hazard disclosure program with upholstered furniture manufacturers and retailers, whereby such companies would voluntarily agree with the agencies to make adequate fire hazard disclosures to U.S. consumers pending the outcome of a decision on this petition for rulemaking. 3. Grant such other relief as is equitable and appropriate. Respectfully submitted, Rocco J. Gabriele President The National Association of State Fire Marshals E-mail: govtaffairs@firemarshals.org