May 29, 2020

Archives for April 7, 2020

On April 3, The Consumer Product Safety Commission (CPSC) Published a Notice of Proposed Rulemaking Proposing a Safety Standard for Crib Bumpers/Liners (16 CFR 1240, Docket No. CPSC 2020-0010)

DATES: Comments must be submitted on or before June 17, 2020

SUMMARY:  The CPSC is proposing a safety standard for crib bumpers/liners, and it is also proposing to identify crib bumpers/liners as durable infant or toddler products subject to CPSC’s consumer registration requirements. In addition, the Commission is proposing an amendment to include crib bumpers in the list of notice of requirements (NORs) issued by the Commission.

The Commission proposes to incorporate by reference ASTM F1917– 12, with the following modifications to the standard, (discussed in Section VI of the Notice):

  1. Provide a broad definition of crib bumpers that encompasses traditional crib bumpers as well as mesh crib liners;
  2. Suffocation Hazard
    1. The Commission proposes to apply the F1917-12 thickness requirement to all crib bumpers/liners, regardless of their construction;
    1. The Commission is proposing a firmness requirement and test method that is based on an Australian/New Zealand standard, AS/NZS 8811.1:2013, Methods of Testing Infant Products: Part 1: Sleep Surfaces—Test for Firmness.
  3.  Suffocation Hazard and Entrapment Hazard—Crib Bumper Attachment
    1. The Commission is proposing a new performance requirement that would replace the existing F1917 attachment requirements. The proposed requirement would not allow the small head probe currently used in ASTM F963 to pass between an installed crib bumper and the interior crib side.
  4. Entanglement, Choking, and Suffocation Hazards—Crib Bumper Tie/ Attachment Means Strength Requirement
    1. Attachment Means, Decorative Components, and Seams—ASTM F1917–12 includes a strength requirement for crib bumper ties. The Commission is proposing to revise the strength requirement for bumper ties to apply to all “attachment means”, rather than just to ties. 
    1. Decorative Components and Seams Strength Requirements—The Commission is proposing to include strength requirements for decorative components and bumper seams. 
  5. Suffocation, Entanglement and Fall Hazards—Crib Bumper Warnings and Instructions
    1. Warning Content and Format—The Commission proposes to replace the ASTM F1917–12 warning requirements with new warning requirements involving content and general format.
    1. They propose changes involving (a) warning placement, (b) warning permanence, (c) additional crib bumper warnings, and (d) the proposed standard would require instructional literature in addition to the product warnings.

XVII. Request for Comments—The Commission invites comments on any aspect of this proposal. In addition, the Commission invites comments on the following:

1. Is the 2 inch maximum thickness requirement and the related test method sufficient?

2. With regard to the firmness requirements and related test methods:

  1. Potential facial conformity test devices and methods, such as mechanical test surrogates;
  2. recommendations for a more anthropomorphic test method;
  3. the repeatability of the proposed firmness test; and
  4. the validity of the proposed firmness requirements and related test methods.

3. Is an airflow performance requirement based on the airflow characteristics of typical mesh bumpers protective enough to eliminate the risks of suffocation against a crib bumper?

4. What further modifications to the British air flow test method (BS 4568:1970) would enhance the repeatability and validity of the airflow test requirement for crib bumpers?

5. Is there an alternative test method, such as ASTM D737–18, Standard Test Method for Air Permeability of Textile Fabrics, that can be correlated with results from the British Standard, as modified, and would adoption of this alternative test method offer benefits?

6. If the Commission adopts an airflow performance requirement, what effect will this have on the need for the proposed thickness and firmness tests and will the proposed warnings and instructions need to be modified?

7. Is there evidence that demonstrates that climb-out rates are higher when crib bumpers or mesh liners are installed in a crib, and should the Commission require the new warnings about removal of the product and climbing out?

8. Does having an airflow performance requirement for crib bumpers adversely affect public education about safe sleep best practices?

9. Is there any research into air permeability, breathability, infants’ oxygen and carbon dioxide levels, rebreathing, anatomical features, airway openings, respiratory rates and volumes, anthropometry of facial features such as nasal deformation against crib bumpers, effects of exhaled moisture and saliva on the air permeability of fabric and mesh bumpers, patterns of gas dispersal within a crib, or other related topics that the Commission should consider?

10. Are there reports of incidents or injuries associated with vertical bumpers? What is the recommended user population, market size and expected, useful lifespan of vertical bumpers? What design characteristics of vertical bumpers are critical for safety, such as shape, thickness, fill materials, and attachment means? Are there any requirements in this proposal from which vertical bumpers should be exempt and why? Are there any test methods that need to be modified for testing vertical bumpers?

11. A central purpose of the Consumer Product Safety Act is ‘‘to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations.’’ See 15 U.S.C. 2051(b)(3). Given this mandate, what should the preemptive effect of any regulation promulgated under this rulemaking be?

12. Should the Commission consider an effective date of 12 months for any regulation promulgated under this rulemaking?

13. Should CPSC consider any other alternatives to reduce the impact on small entities?

14. On October 19, 2016, the Commission voted to initiate rulemaking under section 104 of the Consumer Product Safety Improvement Act (CPSIA) to address the risk of injury or death associated with the use of crib bumpers. Do crib bumpers and liners meet the definition of ‘‘durable product’’? What are the anticipated legal challenges to pursuing rulemaking under this authority?

15. Many outside groups have advocated for an outright ban of crib bumpers and liners. Does CPSC have jurisdiction under Section 104 to ban this product category? If not, may CPSC promulgate a rule declaring such products a banned hazardous product under Section 8 of the CPSIA, 15 U.S.C. 2057? During the comment period, the ASTM F1917–12 Standard Consumer Safety Performance Specification for Infant Bedding and Related Accessories, is available as a read-only document at: http://www.astm.org/cpsc.htm.

For a more detailed summary of the notice please email me at sselander@selanderlaw.com. To see the notice itself, follow the link https://www.govinfo.gov/content/pkg/FR-2020-04-03/pdf/2020-06142.pdf