[co-author: Jeff Clare]

On December 31, 2021, New York Governor Kathy Hochul signed a new law that imposes obligations on manufactures of consumer “electronic displays,” upholstered furniture, and mattresses. Beginning January 2024, any new products listed below will be prohibited for sale in New York:

• Any “electronic displays” sold for personal residential use containing intentionally added organohalogen flame retardants in the enclosure or stand.
• Any new upholstered furniture or mattresses containing intentionally added halogenated, organophosphorus, organonitrogen, or nanoscale chemical flame retardants.

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

Starting at the end of 2022, the new law also requires that all manufacturers of “electronic displays” report any flame retardant content used in the enclosure or stand of the electronic display, as a precondition for selling their products in 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 re-upholstery or repair of any furniture using halogenated, organophosphorus, organonitrogen, or nanoscale chemical flame retardants as of January 2023.

This new statute may present an early opportunity to test the applicability of federal preemption provisions under the Toxic Substance Control Act (TSCA). Under TSCA, multiple halogenated flame retardants are currently undergoing risk evaluations by the EPA. Among other preemption provisions, TSCA (as amended in 2016) preempts any state from “establish[ing] a statute… or otherwise restricting the manufacture, processing, distribution in commerce, or use of” chemicals under TSCA review. This preemption starts when the scope of the TSCA risk evaluation is defined and ends when the EPA has issued a final risk evaluation or three years from the start of the evaluation. Additionally, depending on the scope and result of the TSCA risk evaluations, states may be permanently barred from restricting certain uses of a chemical substance.

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