Reform of UK Furniture Fire Safety Regulations

The UK Government is currently reviewing responses to the recent consultation on the proposed regulatory framework for domestic furniture and furnishings, which is quite the change from the current fire safety testing and standards regime. The current draft Furniture and Furnishings (Fire) (Safety) Regulations (the “Proposed Regulations”) are set to alter the scope of products caught by the regime and place new obligations on businesses involved throughout the supply chain. Businesses will need to consider these provisions closely to ensure that they are compliant, and changes will be needed to various aspects of fire safety for furniture, including; the furniture that is subject to the testing and standards; the testing required; and the information supplied at the point of sale (which could potentially include details of the fire retardants used in the furniture).

Background

Fire safety standards in furniture and furnishings are currently set out and regulated under the Furniture and Furnishings (Fire) (Safety) Regulations 1988 (the “FFRs”). Under this regime, manufacturers widely use Chemical Flame Retardants (“CFRs”) in the design of their furniture to pass the ‘open flame ignition test’ prescribed by the FFRs. However, evidence suggests that CFRs worsen toxic gases released, and smoke formed, during fires. Additionally, there is now concern around the long-term impacts of chemical retardants on people’s health and safety and the environment.

In July 2019, the Office for Product Safety and Standards and the Department for Business & Trade announced the Proposed Regulations. A consultation ran from 2 August 2023 to 24 October 2023 and sought stakeholder input on the Proposed Regulations (the “Consultation”). The Government’s response is awaited, with an indication that the Proposed Regulations will be passed as law later in 2024.

The Proposed Furniture Fire Safety Regulations

• In-Scope Supply Chain Actors - The Proposed Regulations primarily place obligations on manufacturers and importers of upholstered products. Further suppliers – which includes but is not limited to distributors and landlords letting out furnished accommodation – are obligated to exercise diligence that they are supplying safe products to consumers.
   
• In Scope Products - The scope of products caught by the new regime has changed substantially from the existing framework and is designed to capture a broader range of domestic items. The Proposed Regulations would apply to the supply of new and second-hand furniture. They would also apply to upholstered furniture, and as such, will incorporate items such as sofas, armchairs, divan bed bases, and mattresses, and will also include furniture which is ordinarily intended for use outdoors at domestic premises, all of which represents a shift from the FFRs regime.
   
• Safety Obligations - Amongst other obligations, manufacturers will be required to ensure that their in-scope products meet the ‘essential safety requirements’, diverging from the FFRs approach. This shift focuses on overall safety outcomes for the final product rather than the safeness of individual component materials. Essential safety requirements prescribe that the product and the foam in the product should not readily ignite if it comes into contact with an ignition source, and it should either self-extinguish or burn slowly in circumstances where it does. Products containing CFRs must not jeopardise the safety of customers or others. 
   
• The Flame-Retardant Technology Hierarchy - This is a new concept obligating manufacturers to determine if they could make their upholstered furniture flame retardant in ways which do not require the use of CFRs. In accordance with the hierarchy, before using CFRs, manufacturers must first consider making the product safe by  “(a) using inherently flame-retardant materials; and (b) adapting the design of the product.” Manufacturers cannot use CFRs unless they conclude that these steps are not practicable. Manufacturers will be required to provide evidence in their technical file (see below) that they have followed the hierarchy.
   
• Labelling - A permanent label with new wording requirements must also be affixed to the product and made available digitally for sales made online.
   
• Conformity Assessment - The Proposed Regulations set out obligations to carry out a conformity assessment, and declaration, and require that accredited laboratories are used to test upholstered products against the essential safety requirements. This differs significantly from the current testing regime under the FFRs.
   
• Technical File - More akin to higher risk products that are accredited according to safety testing (such as electrical goods or toys), in-scope furniture will need to be accompanied by a technical file which must be retained for a minimum of 10 years.
   
• Importers - Several responsibilities will apply to importers to verify that any overseas manufacturer has met its obligations. Importers will also be required to provide contact and identifying information on the product to ensure traceability. An importer will become a manufacturer and will need to comply with the requirements of a manufacturer if they place furniture on the market under their name or trademark, or modify furniture already placed on the market in such a way that conformity with the essential safety requirements may be affected. Importers must also obtain a copy of the technical file from the manufacturer and keep it for 10 years.

Commentary and Next Steps

The Proposed Regulations represent a significant change to the regulatory regime governing fire safety standards of domestic furniture. Manufacturers, importers, and further suppliers of furniture should consider the provisions closely and keep abreast of further proposed changes before the new regime is brought into force.

In December 2023, the House of Commons Environmental Audit Committee welcomed the Government’s Consultation but commented that “many of the government’s proposals stop short of what the committee had previously recommended”, and the Proposed Regulations have not gone without criticism. Amongst other things, it asked the government (i) how its flame-retardant technology hierarchy is likely to be effective in reducing the use of substances of very high concern, and (ii) why it is seeking to retain the requirement for products to be assessed against the UK’s current flammability tests rather than creating a new flammability test, as adopted by other countries. Additionally, the Fire Brigade’s Union has opposed the Proposed Regulations on the basis that it considers them to be deregulatory, citing that they will still allow flame retardants if manufacturers decide that they are the most “practicable” solution.

At the time of writing, the Government is still in the process of reviewing the Consultation feedback and has not yet published its response. The new laws are therefore subject to this review and may change as a result of the evidence and views provided by participating stakeholders during the Consultation. Notwithstanding, the Government intends for the new laws take effect from 1 October 2024, followed by a transition period.

Co-authored by Josh Sromek, Trainee Solicitor.