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Prohibiting the Sale of Upholstered Furniture and Juvenile Products Containing Flame Retardant Chemicals.
Implementation and Enforcement.
Undertaking for the General Welfare.
No Conflict with Federal or State Law.
This Chapter 28 may be known as the “Flame Retardant Chemicals in Upholstered Furniture and Juvenile Products Ordinance.”
For the purposes of this Chapter 28, the following terms have the following meanings:
“Covered Product” means Upholstered Furniture, Reupholstered Furniture, or Juvenile Products, any component of which has been made with or contains a Flame Retardant Chemical at a level above 1,000 parts per million. Covered Products do not include (1) used or second-hand furniture that is not Reupholstered Furniture, or (2) used or second-hand Juvenile Products.
“Director” means the Director of the Department of the Environment.
“Establishment” means any store, stand, booth, concession, or any other business enterprise that engages in the Sale of Covered Products in San Francisco, and/or in the business of reupholstering residential furniture in San Francisco.
“Flame Retardant Chemical” means any chemical or chemical compound for which a functional use is to resist or inhibit the spread of fire. Flame Retardant Chemicals include, but are not limited to, halogenated, phosphorous based, nitrogen based, and nanoscale flame retardants; flame retardant chemicals listed as “designated chemicals” pursuant to Section 105440 of the California Health and Safety Code, as amended; and any chemical or chemical compound for which “flame retardant” appears on the substance Safety Data Sheet (“SDS”) pursuant to Section 1910.1200(g) of Title 29 of the Code of Federal Regulations, as amended.
“Juvenile Product” means a new, not previously owned product subject to the Home Furnishings and Thermal Insulation Act (Cal. Business and Professions Code Sec. 19000 et seq.) and designed for residential use by infants and children under 12 years of age, including but not limited to a bassinet, booster seat, changing pad, floor play mat, highchair, highchair pad, infant bouncer, infant carrier, infant seat, infant swing, infant walker, nursing pad, nursing pillow, playpen side pad, playard, portable hook-on chair, stroller, and children’s nap mat. Juvenile Products do not include:
(a) products that are not primarily intended for use in the home, such as products or components for motor vehicles, watercraft, aircraft, or other vehicles;
(b) products subject to Title 49, Part 571 of the Code of Federal Regulations regarding parts and products used in vehicles and aircraft;
(c) products required to meet federal flammability standards in Title 16, Parts 1632 or 1633 of the Code of Federal Regulations regarding mattress products; and
(d) products required to meet State flammability standards in California Technical Bulletin 133, entitled “Flammability Test Procedure for Seating Furniture for Use in Public Occupancies.”
“Reupholstered Furniture” means furniture whose original fabric, padding, decking, barrier material, foam, and/or other resilient filling has been replaced by an Establishment, that has not been Sold since the time of such replacement, and that is required to meet the flammability standards set forth in California Technical Bulletin 117-2013 entitled “Requirements, Test Procedure and Apparatus for Testing the Smolder Resistance of Materials Used in Upholstered Furniture.” Reupholstered Furniture shall not include products required to meet California Technical Bulletin 133.
“Sale,” or any of its variants, means any of the following, or combination thereof, undertaken by an Establishment: sell, offer for sale, transfer possession for compensation, trade, rent, lease, or otherwise give or distribute, and/or an intent to conduct any of these activities.
“Upholstered Furniture” means new, not previously owned seating made with soft materials, including but not limited to fabric, padding, decking, barrier material, foam, and/or other resilient filling, that is required to meet the flammability standards set forth in California Technical Bulletin 117-2013 entitled “Requirements, Test Procedure and Apparatus for Testing the Smolder Resistance of Materials Used in Upholstered Furniture.” Upholstered Furniture shall not include products required to meet California Technical Bulletin 133.
(1) Except as provided in subsection (a)(2), beginning January 1, 2019, no Establishment may Sell a Covered Product. In addition, except as provided in subsection (a)(2), beginning January 1, 2019, no Establishment may reupholster Upholstered Furniture or Reupholstered Furniture using soft material, including but not limited to fabric, padding, decking, barrier material, foam, and/or other resilient filling that contains or is made with a Flame Retardant Chemical at a level above 1,000 parts per million.
(2) The prohibitions set forth in subsection (a)(1) shall apply to Covered Products with electrical or electronic components beginning July 1, 2019.
(b) Compliance. Compliance with Section 2803(a) with respect to each Covered Product shall be determined in accordance with the following. For Upholstered Furniture and Reupholstered Furniture, Establishments shall ensure that every item they Sell is affixed with a label that (1) meets the requirements of Senate Bill 1019, and (2) states that the item does not contain Flame Retardant Chemical(s). For each Juvenile Product, an Establishment may demonstrate compliance by retaining on file and making available for inspection upon request a written statement from the product supplier attesting that the Juvenile Product does not contain a Flame Retardant Chemical. The Director of the Department of the Environment shall, in his or her lawful discretion, have authority to set forth in regulations additional methods by which Establishments may demonstrate compliance with this Chapter 28.
(c) Petitions. Notwithstanding subsections (a) and (b), beginning on July 1, 2018, an Establishment or other person may, in writing, petition the Director of the Department of the Environment for a waiver from strict compliance with this Chapter for an Establishment or a Covered Product, where the petitioner can demonstrate that strict compliance shall cause severe hardship or practical difficulty, or would not be feasible. Any waiver shall be crafted as narrowly as possible, to maximize compliance as required by this Chapter 28, and shall be in writing. A petition that does not receive a response from the Department within 60 days from when it was received by the Department shall be deemed granted. By no later than June 30, 2018, the Department of the Environment shall issue rules or regulations establishing a process for the Department’s review of petitions and describing factors that the Department will consider in evaluating petitions.
(d) Five years from this Chapter 28’s effective date, the Director of the Department of the Environment shall evaluate the efficacy of this Chapter in reducing San Franciscans’ exposure to flame retardant chemicals, and shall submit a written report based on the evaluation to the Mayor and the Board of Supervisors, with recommendations, if any, for changes in City laws or programs to achieve greater reduction in San Franciscans’ exposure to flame retardant chemicals.
(a) The Director of the Department of the Environment may issue rules and regulations necessary or appropriate for the implementation and enforcement of this Chapter 28.
(b) If the Director determines that any person has violated this Chapter 28, or a regulation adopted pursuant to this Chapter 28, the Director shall send a written warning, as well as a copy of this Chapter 28 and any regulations adopted pursuant to it, to the person who violated the Chapter or regulation. The person shall have 30 days after receipt of the warning to correct the violation.
(c) If the person in violation fails to correct the violation, the Director may impose an administrative fine for the violation. Administrative Code Chapter 100, “Procedures Governing the Imposition of Administrative Fines,” as amended from time to time, is hereby incorporated in its entirety and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this Chapter 28 or any rule or regulation adopted pursuant to this Chapter. Each Covered Product item Sold or for Sale on each day shall constitute a separate violation for these purposes.
(d) The City Attorney or any organization with tax exempt status under 26 United States Code Section 501(c)(3) or 501(c)(4) and with a primary mission of protecting human health and/or the environment in the San Francisco Bay Area may bring a civil action to enjoin a violation of or compel compliance with any requirement of this Chapter 28 or any rule or regulation adopted pursuant to this Chapter 28, as well as for payment of civil penalties and any other appropriate remedy. The court shall award reasonable attorney fees and costs to the City Attorney or nonprofit organization that is the prevailing party in a civil action brought under this Chapter 28. A nonprofit organization may institute a civil action under this subsection (e) only if:
(1) The nonprofit organization has filed a complaint with the Director;
(2) 90 days have passed since the filing of the complaint;
(3) After such 90-day period, the nonprofit organization provides written notice to the Director and the City Attorney’s Office of its intent to initiate civil proceedings;
(4) The Director has not issued a determination that there has been no violation of any requirement of this Chapter 28; and
(5) The City Attorney’s Office has not provided written notice to the nonprofit organization of the City’s intent to initiate civil proceedings within 90 days of receipt of the written notice from the nonprofit organization referenced in subsection (d)(3).
(e) Any person in violation of this Chapter 28 or any rule or regulation adopted pursuant to this Chapter 28 shall be liable to the City for a civil penalty in an amount not to exceed $1,000 per day per violation. Each day on which the violation continues shall constitute a separate violation; and each Covered Product item for Sale shall also constitute a separate violation. Civil penalties shall not be assessed pursuant to this Chapter 28 for the same violation for which the Director has assessed an administrative penalty pursuant to this Chapter 28.
(f) In determining the appropriate civil or administrative penalty, the court or the Director shall consider the extent of harm caused by the violation, the nature and persistence of the violation, the frequency of past violations, any action taken to mitigate the violation, and the financial burden to the violator.
(g) No civil or administrative action under this Chapter 28 may be brought more than one year after the date of the alleged violation.
In adopting this Chapter 28, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
This Chapter 28 shall be construed so as not to conflict with applicable federal or State laws, rules, or regulations. Nothing in this Chapter 28 shall authorize any City agency or department to impose any duties or obligations in conflict with limitations on municipal authority established by State or federal law at the time such agency or department action is taken. The City shall suspend enforcement of this Chapter 28 to the extent that said enforcement would conflict with any preemptive State or federal legislation subsequently adopted.
If any of the provisions of this Chapter 28 or the application thereof to any person or circumstance is held invalid, the remainder of those provisions, including the application of such part or provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Chapter 28 are severable.