Englander v. Flexible Foam Products, Inc.

Citizen enforcer Peter Englander’s allegations against defendant Flexible Foam Products, Inc. (“Flexible Foam”) were resolved on January 13, 2015, when the parties entered into a Consent Judgment.  In this matter, Englander alleged that Flexible Foam sold foam used as padding in upholstered furniture and other consumer products containing the flame retardant tris(1,3-dichloro-2-propyl) phosphate (“TDCPP”) in the State of California without providing the requisite health hazard warnings.

As part of the Judgment, Flexible Foam agreed not to sell any foam in California after the Alameda County Superior Court approves the Judgment, unless the foam contains no detectable amount of TDCPP, tris(2-chloroethyl) phosphate (“TCEP”), or tris(2,3-dibromopropyl)phosphate (“TDBPP”) when analyzed using state or federally approved testing methodologies. Additionally, Flexible Foam agreed to provide its retailers or distributors with clear and reasonable Proposition 65 warning materials and make untreated foam available to its customers as per section 3.2 of the Judgment.  Should Flexible Foam undertake additional actions to reduce or eliminate the use of chemical flame retardants as set forth in section 4.1.5, Englander agreed to waive a portion of the civil fine.

The Consent Judgment requires settlement payments of $45,000, divided therein between civil penalties, 75% of which are paid to California’s Office of Environmental Health Hazard Assessment, and compensation to whistleblower Englander and his counsel for their successful enforcement of this matter in the public interest.