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Wednesday, August 3, 2016, 10:30 PM

EPA Issues Final Rule on Formaldehyde Emission Standards for Composite Wood Products

Guest post by Whitney Passmore and Michael Sullivan 

On Wednesday, July 27, 2016, the Environmental Protection Agency (“EPA”) released a prepublication version of its final rule on Formaldehyde Emission Standards for Composite Wood Products. The authority for the rule comes from the Toxic Substance Control Act (“TSCA”). The EPA’s rule relies heavily on the formaldehyde emissions rules set by the California Air Resources Board (“CARB”) as part of California’s Phase 2 formaldehyde emissions standards, and the EPA’s emissions standards are identical to those set by CARB.

Who will be affected by the new rule?

This rule will affect manufacturers, importers, distributors, and retailers of products containing composite wood, which is defined as hardwood plywood, medium-density fiberboard, and particleboard.

What is required under the new rule?

The EPA’s final rule sets out detailed record-keeping, labeling, and testing requirements for composite wood and products containing composite wood. Below are three major areas of concern that manufacturers, importers, distributors, and retailers of finished goods containing composite wood should be aware of as they prepare to comply with the national formaldehyde emissions standards.

Record-keeping and labeling: One year after publication of the final rule in the Federal Register, manufacturers of finished goods containing composite wood (called “fabricators” under the CARB and EPA rules), importers, distributors, and retailers will have to comply with new record keeping and labeling requirements.

With regard to record keeping, manufacturers, importers, distributors, and retailers will be required to “take reasonable precautions” to ensure the products they sell comply with the emissions standards. As part of taking “reasonable precautions,” a company must obtain documentation, such as bills of lading or invoices, from suppliers of composite wood products that includes a written statement that the products are either compliant with formaldehyde emissions standards or were produced prior to the rule taking effect. Companies must keep this documentation for three years – a year longer than required by CARB.

Importers face an additional record keeping requirement. If requested to do so by the EPA, importers must provide records identifying either (1) the composite wood panel producer and the date the composite wood products were produced or (2) the supplier of the composite wood products (if different than the producer), component parts, or finished goods and the date of purchase. Importers will have to provide this information to the EPA within 30 days of a request, and documentation must be kept for three years.

Finally, manufacturers of finished goods containing composite wood products must label each finished good or box or bundle containing finished goods with the manufacturer’s name, the date the good was produced, and a statement that the finished goods are compliant with the TSCA. If a manufacturer chooses to label the box or bundle of goods, importers, distributors, and retailers of those goods must keep the label from the box or bundle and keep track of which products are identified with the label. Importers, distributors, and retailers must make the label information available to potential customers if requested.

Importer Certification: Two years after the final rule is published in the Federal Register, importers will be required to certify that imported composite wood or products containing composite wood comply with the TSCA.

Testing requirements: Beginning seven years after the publication of the final rule in the Federal Register, manufacturers of laminated products will have to comply with third-party testing and certification requirements that apply to manufacturers of hardwood plywood panels. The EPA defines “laminated product” to include only those products with a wood or woody grass veneer, so the testing requirements will not apply to synthetic laminates such as plastic or vinyl. The EPA’s decision to require third party testing and certification by manufacturers of laminated products is a significant departure from the CARB rules.


Fortunately, there are a number of ways companies can lessen or avoid the burdens of a costly testing program. First, the EPA exempts two types of laminated products from the definition of “hardwood plywood”: (1) Laminated products made by attaching a wood or woody grass veneer with a phenol-formaldehyde resin to a compliant platform; and (2) laminated products made by attaching a wood or woody grass veneer with a resin formulated with no-added formaldehyde (“NAF”) as part of the resin cross-linking structure to a compliant platform. Accordingly, a manufacturer using NAF or phenol-formaldehyde resins will not be subject to the testing and certification requirements. Instead, these manufacturers must keep records showing their products are made with the appropriate resins and a compliant platform. Notably, the EPA has left the door open for interested parties to petition for additional exemptions.

Second, manufacturers of laminated products can apply for an exemption from the testing and certification requirements based on use of ultra low-emitting formaldehyde (“ULEF”) resins. To qualify for a ULEF exemption from the testing and certification requirements, a company must undergo a limited (6 months) testing program to show its product complies with emissions limits. Additional limited testing is required to renew the exemption every two years. 

Contact Information

Womble Carlyle's Furniture Industry Team and Environmental, Energy & Toxic Tort Litigation Team counsels clients on regulatory matters including compliance and supply chain management.  If you have any questions about the EPA's rule on Formaldehyde Emission Standards for Composite Wood Products, please contact Whitney Passmore at 336.721.3532 or WPassmore@wcsr.comMichael Sullivan at 404.879.2438 or MSullivan@wcsr.com, or any member of the aforementioned teams.

Wednesday, July 27, 2016, 10:14 PM

EPA Issues Final Rule to Protect the Public from Exposure to Formaldehyde

Today the EPA issued its final rule related to formaldehyde emissions standards.  This rule will affect manufacturers, importers, distributors, and retailers of furniture manufactured with composite woods (hardwood plywood made with a veneer or composite core, medium-density fiberboard, and/or particleboard).  A copy of the final rule can be found at: https://www.epa.gov/sites/production/files/2016-07/documents/formaldehyde_frn_final-prepub_07.26.2016_0.pdf   

Wednesday, June 22, 2016, 1:27 PM

Womble Carlyle Attorneys Working with Furniture Industry on Improving Safety Standards

HIGH POINT, N.C.—The furniture industry is examining the dangers to children posed by “tip-overs”—and Womble Carlyle attorneys Michael Sullivan and Whitney Passmore are part of the conversation to improve safety standards.

The ASTM Furniture Safety Subcommittee is proposing two updates to the Standard Safety Specification for Clothing Storage Units. These proposed changes come in response to a Consumer Product Safety Commissioner’s comments that the existing introduction to the standard includes a loophole that could create ambiguity. From a legal liability standpoint, furniture manufacturers must be aware of potential tip-over lawsuits or possible product recalls.

Continue reading...(WCSR.com)

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Sunday, October 4, 2015, 4:46 PM

Jake Wharton Interviewed by Bentley Tolk on the Legal Marketing Launch Podcasts

I was the latest guest on Legal Marketing Launch, a podcast hosted by attorney and legal marketing guru Bentley Tolk. We discussed leveraging a legal blog in a narrow niche (furniture law). I thank Bentley for the opportunity and the good discussion.


Saturday, August 1, 2015, 6:49 AM

Is "New Vintage" On the Way Out?

The furniture business is constantly evolving.  New trends come and go.  Some stick around for a while, and some burn bright for what constitutes a fleeting second in the industry.  The New Times reports that "New Vintage" is on the decline and a new lighter aesthetic is taking its place. Find the article here.

Remember that with good design comes the need for design protection.  With cleaner, more minimalist lines, modern furniture design lends itself to design patent protection in certain cases.  With a modest upfront expense, and relatively short pending periods, design patents are an ideal form of protection for some designs or particular aspects of those designs.

Design patents continue to issue weekly on furniture designs.  Here is a just a sampling of design patents on more modern furniture designs:

U.S. Des. Pat. No. 610844

U.S. Des. Pat. No. 493983

U.S. Des. Pat. No. 617117


Tuesday, May 19, 2015, 9:15 AM

Don't Name Your Furniture Store After A Grocery Store

On May 14, 2015, Aldi Inc., the grocery store chain, sued Aldis Furniture Inc. for contempt of a 2002 consent decree.  See Aldi Inc. v. Aldsi Furniture Inc., et al., 2:15-cv-2696 (N.D. Ill.).  The parties tussled before and the obvious and inevitable trademark infringement action brought by the grocer against the retailer resulted in a 2002 agreement.  The retailer, however, apparently thought 13 years was long enough and opened a new furniture retail store named:




The whole affair falls into the "duh" category by the defendant.  However, it underscores a trend in furniture retailing.  Furniture is being sold everywhere--including grocery stores.  Next time you are at your neighborhood large chain grocery store look around.  I bet you will find at least some outdoor furniture for sale.  In the meantime, let's hope that the Aldi's Furniture folks are wise enough to quickly change their name (again).

Thursday, December 18, 2014, 5:07 PM

Jack Hicks Talks Defending Innovation, IP Rights in the Home Furnishings Industry with Furniture Today

GREENSBORO, N.C. – Even in the face of copycats, innovation remains the lifeblood of the home furnishings industry, and innovators have legal remedies to protect their designs.

So says Womble Carlyle’s Jack Hicks, a veteran IP attorney who has served the home furnishings industry for more than 25 years. Hicks recently spoke on “Innovation, Impersonation or Infringement?” at the Furniture Today Leadership Conference, and Furniture Today was on hand to cover his presentation.

“It is easy to knock someone off and knock off a bestseller, but if you want to come up with a one-of-a-kind product, we have laws to protect that,” Hicks said. “If you innovate, the law will protect you.”

Jack Hicks has more than 25 years of experience guiding home furnishing and design companies through all stages of the intellectual property process.  He has written, prosecuted and litigated patents, trademarks and copyrights throughout the world on literally hundreds of furniture-related designs.  A registered patent attorney, Jack is frequently invited to speak at the US and Global Patent Academies, Universities and trade groups on the line between protectable original designs and public domain trends.  He is listed in The Best Lawyers in America, North Carolina Super Lawyers and North Carolina Legal Elite.  Jack also is an Adjunct Professor, teaching courses on intellectual property law and international law and business at the Elon University School of Law.  He is the Chair of the Solutions Partners Division of the AHFA and practices in Womble Carlyle’s Greensboro, N.C. office.
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