By Magda Garncarz
Vice President, Government Affairs
The Massachusetts Department of Environmental Protection (MassDEP) this month issued regulations that prohibit the sale, manufacture, distribution or importation of certain products that contain chemical flame retardants or chemical analogues exceeding 1,000 parts per million.
The DEP issued these regulations pursuant to a law signed on January 1, 2021, entitled “An Act to Protect Children, Families, and Firefighters from Harmful Flame Retardants.”
Many companies have already moved away from using these products since 2021.
Which products are covered by these regulations?
These regulations apply to the following products:
- Bedding (mattress, mattress pad, mattress cover, sheets, pillows, blankets, comforter, duvet cover, sleeping bag, or any other item intended to be used for reclining or sleeping)
- Carpeting (any fabric floor covering)
- Children’s products (products intended, made or marketed for use by children 12 years or younger)
- Residential upholstered furniture (seating, upholstered products intended for indoor or outdoor use in a residential home) and
- Window treatments (curtain materials, blinds, shades)
Which flame retardants do these regulations prohibit?
These regulations apply to the following chemical flame retardants or their analogues (when present in 1,000 parts per million) or any amount of these substances in nanoobject form:
- Tris(1,3-dichloro-2-propyl) phosphate (TDCPP)
- Tris(2-chloroethyl) phosphate (TCEP)
- Antimony trioxide
- Hexabromocyclododecane (HBCD)
- Bis(2-Ethylhexyl)-3,4,5,6- tetrabromophthalate (TBPH)
- 2-EthylhexYl-2,3,4,5-tetrabromobenzoate (TBB)
- Chlorinated paraffins
- Tris (1-chloro-2-propyl) phosphate (TCPP)
- PentaBDE
- OctaBDE
- Tetrabromobisphenol A (TBBPA)
Are there any exemptions to these regulations?
The following products are exempt from compliance:
- Products made before December 31, 2021
- Motor vehicles, watercraft, aircraft, all-terrain vehicles, off-highway motorcycles or any of their component parts
- Second-hand items
- Electronic devices
- Electronic components of the covered products (bedding, carpeting, children’s products, residential upholstered furniture, window treatments)
- Covered products with recycled materials containing the banned flame retardants or their analogues
What are the compliance requirements?
- Manufacturers and retailers subject to these regulations must maintain records that demonstrate their compliance and provide those records to the DEP upon request.
- DEP personnel may conduct announced or unannounced inspections at facilities containing, or suspected of containing, the covered products.
- Manufacturers and retailers subject to these regulations must cooperate with DEP personnel when additional requests for information are made during or after inspections.
Are there penalties for non-compliance?
Failure to comply may result in one or more of the following civil penalties:
- First violation: up to $100 fine per covered product, not to exceed a total of $5,000
- Second violation: up to $250 fine per covered product, not to exceed a total of $25,000
- Third violation: up to $1,000 fine per covered product, not to exceed a total of 50,000
- A manufacturer or retailer that knowingly violates these regulations may be subject to civil penalties equal to three times higher than the fines outlined above.
- A manufacturer or retailer that can show good-faith efforts to comply with these regulations can have civil penalties waived by the DEP.
You can find the text of the regulations, or more information about them, on the DEP’s website. If you have additional questions, you can contact Magda Garncarz, VP of Government Affairs, at mgarncarz@aimnet.org.
