Burning Questions: Furniture and Baby Supply Industries Hit With Prop. 65 Notices for Newly Banned Flame Retardant TDCPP


What started as an effort to make upholstered products safer for consumers has apparently backfired on the furniture and baby supply industries. In the past four months since Proposition 65 (Prop. 65) action has been allowed on the chemical tris (1,3-dicholo-2-propyl) phosphate, or TDCPP, plaintiffs’ lawyers have filed more than 130 (and counting) notices of violation against manufacturers that used the substance as a fire retardant additive to foam inside sofas, ottomans and baby mats. The notices are the enforcement mechanism of Prop. 65. After 60 days it expires, and if the matter cannot be resolved, plaintiffs can file a lawsuit against the alleged violator.


In October 2011, the state agency known as the Office of Environmental Health Hazard Assessment added TDCPP to the Prop. 65 list, after tests on rodents noted carcinogenic effects. Manufacturers got a one-year “safe harbor” from the date the chemical was listed as a carcinogen before plaintiffs’ lawyers could initiate the notice process and then file lawsuits.


What is frustrating for manufacturers here is TDCPP is nothing new. The clothing industry voluntarily removed it from children’s pajamas in the 1970s in response to consumer concern. Then, California adopted strict fire safety standards requiring upholstered furniture to tolerate a 12-second exposure to a small flame. To comply, the industry first turned to another flame retardant known as PentaBDE, which the U.S. Environmental Protection Agency all but banned in 2005. In the past seven years, TDCPP use in upholstery to comply with California’s flame retardant rules skyrocketed, touching as much as 80 percent of upholstered products in stores today.


Prop. 65’s opening salvo of TDCPP notices leaves manufacturers in the lurch for now. A legislative push to loosen fire safety requirements and avoid the high usage of chemicals in furniture is in the works, but any changes may come too late to help the furniture and baby products industries avoid potentially costly settlements. Meaning, for now, manufacturers and retailers are facing a slew of lawsuits over this chemical, and settlements and litigation are now coming.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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