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Sleepwear Flammability Regulations Update

In July 1999, the U.S. Consumer Product Safety Commission ("CPSC" or "Commission") voted to keep changes to the sleepwear flammability regulations in place. The changes, adopted three years ago, exempt tight-fitting sleepwear, or sleepwear intended for infants under 9 months of age. The CPSC also voted for an added requirement that tight-fitting sleepwear garments be sold with mandatory hang tags and permanent neck labels indicating that the garments were not flame-resistant and should be worn with a snug fit. The vote capped a long, heated battle between industry proponents who favored the flexible approach adopted by the CPSC to exempt such garments and to allow them to be sold, and politicians and advocacy groups who were opposed to any change in the original sleepwear regulations because they believed such changes diminished the protection afforded to children by the original regulations.

In voting to continue the exemptions, a majority of the commissioners noted that the exemptions were intended to provide the public with a safe alternative (i.e., tight-fitting sleepwear) to the increased use of traditional underwear and long underwear garments being used as sleepwear. The Commissioners noted that traditional pajamas, robes and nightgowns are still required to be flame-resistant and subject to the sleepwear flammability regulations. They urge retailers to segregate non-sleepwear from sleepwear garments on the store floor, and they voted to add labeling regulations which required mandatory hang tag and neck labels on the exempt sleepwear so consumers would be educated about the type of garments they were buying. Hopefully, this will conclude the long battle between proponents and opponents of the original sleepwear regulations. Acknowledging the vote, the Chairman of the CPSC, Ann Brown (who favored revocation), told advocacy groups that they would not be able to count on her support in the future and hoped that they would respect the decision of the Commission rather than forcing the CPSC to deal with this issue at the expense of other critical safety problems. She noted that it was "time to move on." This article will hopefully clarify the history of enforcement of the sleepwear flammability regulations.

Background
In the early 1970s, a number of children were being burned as a result of fires. The primary hazard was ignition of the sleepwear by contact with hot surfaces such as a stove element or by children playing with matches or lighters while the children were awake, not while they were sleeping. The industry alleged that the incidents were attributable mostly to fires caused by smokers and were related to loose gowns and flannel/cotton. A newly created independent federal agency, the Consumer Product Safety Commission, thought otherwise.

The basic federal law and safety standards that apply to the children's sleepwear industry are the Flammable Fabrics Act and the two flammability standards for children's sleepwear. In adopting the sleepwear regulations, the CPSC considered and balanced the consumer preference for cotton against its responsibility under the Flammable Fabrics Act to protect the public against the unreasonable risk of the occurrence of fire leading to death, injury, or significant property damage. The Commission concluded that the potentially higher risk for injury to children due to burns, exceeded the possible benefits from untreated cotton garments. Even at that time, a large number of comments were submitted by consumers who expressed a desire that untreated cotton garments be available because cotton garments are more absorbent, perform better, and are less likely to cause allergic contact dermatitis than garments made from thermoplastic fabrics.

In the late 1970s, the CPSC sought to expand the scope of the Sleepwear Regulations to apply to underwear. Underwear manufacturers were outraged and brought the agency to court. In National Knitwear Manufacturers Association vs. CPSC, 666 F.2nd 81, (4th Cir, 1981), the court overturned CPSC efforts by issuance of policy statements to extend the sleepwear flammability regulation to thermal underwear. The court stated that to the extent the policy statements applied the requirements of the sleepwear standard to underwear or required underwear to be labeled, CPSC was, in effect amending the regulation without complying with advanced notice and rule-making procedures. The court found that the new policy statements were more than merely interpretive and would have a substantive impact on industry.

However, in 1982 the CPSC issued an advisory opinion to an inquiring manufacturer stating that CPSC's belief that the National Knitwear case would not prohibit the CPSC from enforcing the sleepwear standard against garments labeled as underwear but promoted, sold and used as children's sleepwear.

CPSC Compliance Activities Enforcement
In addition to the policy statements in the sleepwear regulations, the CPSC staff developed the first enforcement guidelines pamphlet in May 1984. This pamphlet provided guidelines to distinguish between sleepwear and non-sleepwear garments. The distinctions presented in the pamphlet were based upon the types of garments in the marketplace at the time which were "problem" garments, being promoted for use as "playwear", "daywear", "beachwear", etc. The garment diagrams and the design features discussed in the enforcement guide were intended to assist manufacturers, importers and retailers in determining whether a garment is children's sleepwear and subject to the Standards for the Flammability of Children's Sleepwear. Because of the frequent fashion changes in the marketplace, generally based on consumer demands and uses, this pamphlet has been revised five times (December 1984, September 1985, May 1986, October 1987 and February 1989).

The CPSC staff attempted to provide the information to all known children's clothing manufacturers and importers in early 1989. The revisions applied to any product imported or manufactured domestically after February 1, 1990 and sold at the retail level after October 1, 1990. The pamphlet was never subject to review, comment or publication, or any due process, yet it had the impact of a rule.

CPSC Acts
Prior to 1990, the illustrations and discussions under the illustrations were relied upon without much consideration of such factors as color, print patterns, or marketing, i.e. if a certain garment design characteristic was present, usually the garment either was or was not sleepwear. As can reasonably be expected, industry took the pamphlet "literally".

Confusion in the marketplace ensued when the staff distanced itself from too "literal" a reading of the pamphlet. Thus, in 1991, the staff adopted the following view:

"The enforcement guide pamphlet is designed to assist firms in evaluating garments by providing information on design characteristics, fabric weight and type, ornamentation, color, garment dimensions and other factors relevant to the determination of whether a garment is an article of sleepwear. In addition, the enforcement guide pamphlet contains line drawings of certain common garment styles that the Commission staff has previously determined are sleepwear and also discusses those characteristics that may cause such garment either to be included or excluded from the definition of sleepwear. The enforcement guide pamphlet, however, has certain inherent limitations. First, the illustrations in the pamphlet are neither all inclusive, nor can they be relied upon without reference to the accompanying text and appendices that describe the other factors that must be considered when evaluating sleepwear. Second, the information provided in the pamphlet, especially the illustrations and commentary, is intended to provide additional guidance only to that contained in the enforcement policy statements and the definition of sleepwear in the sleepwear flammability standards. The information in the pamphlet, therefore, is not to be relied upon in lieu of, or in contradiction to, the definition of sleepwear and the three factors in the enforcement policy statements. Finally, the pamphlet presupposes that a person who, after analyzing a specific garment in accordance with the pamphlet, determines that it is not sleepwear will not subsequently advertise, promote, market, or distribute the garment in a manner which would cause it to be perceived or used as sleepwear."

This position was included in two CPSC letters dated in early 1991. The letters sought to clarify the interrelationship of the definition of sleepwear in the standard, the enforcement policy statements, and the pamphlet. It requested that firms provide specific information necessary for the staff to make meaningful garment assessments on garments as sleepwear. The letter also provided a discussion of the enforcement procedures followed when a violative garment had been identified.

The letter to retailers discussed the retailer's responsibilities under the Flammable Fabrics Act with respect to the sale of children's clothing and sleepwear. This letter reminded retailers that they have a responsibility to identify whether a garment is sleepwear and a responsibility not to promote a noncomplying garment as sleepwear. The letter also advised retailers to segregate sleepwear from other items, use store display signs, and advises them to avoid the promotion of garments that do not comply with the sleepwear standards in a manner that may cause an item to be viewed by the consumer as sleepwear. These letters were intended as a prelude to greater enforcement activity.

In 1992, the CPSC staff launched an enforcement campaign. The campaign was based on the evolving view discussed above and the following determinations:
A. The staff concluded that a number of firms appear to have attempted to circumvent the requirements of the children's sleepwear standards by producing children's garments that vary slightly from the specific diagrams of sleepwear garments in the pamphlet even though the color, ornamentation, fabric weight and type, and/or fit of the garments are typical of children's sleepwear.
B. The staff had also encountered garments that, by virtue of their design and characteristics, ordinarily would be regarded as playwear, but that were promoted or displayed in catalogs or at retail in a way that led prospective purchasers to view the garments as sleepwear.
C. Finally, the CPSC staff concluded that in some cases retailers are co-mingling 100% cotton playwear, underwear, or noncomplying bathrobes with compliant sleepwear garments at retail and that such action causes garments to be perceived by consumers as sleepwear. In addition, some retailers have promoted or recommended 100% cotton garments for use as sleepwear, especially long underwear. Also, many noncomplying robes are promoted for bath use which is an activity related to sleeping and requires compliant garments.

Manufacturers and retailers were soon faced with violations and bans. Some reasons for these types of violations of the sleepwear standards are (1) consumer demand for 100% cotton garments; (2) firms evaluating garments by comparing their design features to the specific illustrations in the pamphlet without considering the other relevant characteristics of the garments; and (3) firms failing to give sufficient consideration to the definitions of children's sleepwear in the children's sleepwear standards and to the criteria set forth in the CPSC's statements of enforcement policy.

Industry Response
Obviously, industry had objected to the CPSC's new view regarding sleepwear flammability. Actions against individual layette, robe, and "long underwear" manufacturers prompted an outcry. The industry viewed the CPSC's enforcement activity as inconsistent and contrary to the public's desires.

The CPSC staff appeared to be using an arbitrary rationale to broadly construe sleepwear as any garment which a child is likely to sleep in which is promoted by retailers on the same racks as sleepwear. Manufacturers were, in effect, being held responsible for the marketing and display actions of retailers.

Many believed that the Canadian sleepwear flammability definitions (allowing "polo" type pajamas) were more appropriate. The Apparel Importers and Exporters Association, the National Cotton Council and the individual members of the Childrenswear Marketing Association (CMA) explored amendment of the regulations. Faced with a flood of submissions seeking CPSC pre-market determinations and irate manufacturers and retailers, the CPSC staff studied the issue. In reviewing its database, the staff determined that "tight" fitting garments and apparel worn by children less than one year old did not actually present a high level of risk to children. This came as no surprise to experts, who had studied the issue for the last 30 years. Children were never significantly at risk from snug-fitting sleepwear garments made of cotton. The original problems all originated with loose-fitting cotton garments and robes coming into contact with open flames. Since the late 1960s, the appliance industry produced ovens, ranges and gas heaters with greater protection around pilot lights which reduced the potential for contact with apparel and ignition. Additional advances in the use of intermittent electronic pilot lights eliminated exposure even further. Improved building codes also limited access of children to open source flames and fireplaces, and the implementation by the CPSC of standards for "child-proof" cigarette lighters further reduced the possibility of ignition. Against this background, it was realized that the possibility was almost nonexistent that a child would face the threat of serious injury or death from their pajamas.

CPSC Issues a Final Rule Amending the Sleepwear Regulations
On September 19, 1996, the Commission issued a final rule amending the flammability standards for children sleepwear to exclude from the definition "children's sleepwear" the following:
1. Garments sized for infants nine months of age or younger;
2. Tight-fitting sleepwear garments for children older than nine months.

These amendments permitted the sale of tight-fitting sleepwear and sleepwear for infants 9 months or under, even if the garments did not meet the flammability standards ordinarily applicable to such sleepwear.

The Commission defined tight-fitting garments as those that did not exceed certain measurements in the chest, waist, seat, upper arm, thigh, wrist and ankle for each size ranging from over nine months through children size 14. In the amendments, the Commission specified maximum allowable measurements for each of these locations for each size garment.
The CPSC reached its result based on staff findings that there were virtually no injuries associated with single-point ignition incidents of tight-fitting sleepwear, or of sleepwear worn by infants under one year. The data demonstrating this absence of injury were buttressed by staff findings that: (1) tight-fitting sleepwear is less likely to come into contact with a flame; (2) even when ignited, tight-fitting sleepwear is not apt to burn readily because it does not trap air that feeds a fire and the proximity of the skin soaks up heat that would otherwise cause the fire to spread; and (3) infants under six months are insufficiently mobile to expose themselves to sources of fire. These amendments became effective January 1, 1997. However, the Commission indicated it would continue not to enforce the rules for such tight-fitting garments. Subsequently, in January 1999, the CPSC made further revisions to the measurements so that the garments would not be so tight-fitting that they would not be capable of normal use. These changes allowed manufacturers a truer measurement of upper arm diameter to provide for sufficient room at the upper opening of the sleeve, and to permit a gradual tapering of the sleeves, and a revision to the way the seat and thighs were measured to allow slightly more room for undergarments.

Children's Advocacy Groups, Politicians and Polyester Sleepwear Manufacturers Oppose Change
While the CPSC staff was working to refine the exemptions to the sleepwear flammability regulation, self-proclaimed children's advocacy groups, politicians and certain polyester sleepwear manufacturers opposed to any changes of the original regulation managed to obtain Congressional support for a bill in Congress to require the CPSC to revisit the issue and to issue a final rule by July 1, 1999. Congress directed the CPSC either to (1) revoke, (2) maintain, or (3) modify the 1996 and other later amendments of the flammability standards for children's sleepwear. This requirement was contained in an add-on to the appropriations legislation for the CPSC and other government agencies. In effect, this gave opponents to changes of the sleepwear regulation another 'bite at the apple' in their efforts to convince the CPSC to return to the 1970s rule.

CPSC Keeps Exemptions
Notwithstanding the pressure, the CPSC again voted 2-1 last month not to revoke previously adopted exemptions to the children's sleepwear standard. The CPSC did vote to issue a regulation requiring that tight-fitting sleepwear garments be sold with mandatory hang tags and permanent neck labels. Labeling Added The revised hang tags are to inform consumers at the point-of-purchase that the garment should be worn snug-fitting because it is not flame-resistant.

The hang tag states: "For child's safety, garment should fit snugly. This garment is not flame resistant. Loose-fitting garment is more likely to catch fire." The rule to be promulgated will specify the size, font, and text of the hangtag. The tags will have black lettering against a yellow background. The neck label will provide a shorter message. The label will state: "Wear Snug-fitting, Not Flame Resistant." It must appear on the front of the sizing label below the size designation and contrast with the background color of the label.

In the end, the CPSC wound up with a rule that should have been adopted almost 30 years ago. The government should have avoided moving towards Orwellian requirements. The original rules were based on flawed data and the presumption that parents did not possess the requisite knowledge or common sense to make appropriate decisions as to what type of garments and fabrics should be used with their children. The consumers in the marketplace make their views known by the types of garments purchased. When overly restrictive regulations diminish the availability of cotton sleepwear, consumers instead used traditional and thermal underwear in its place. Hopefully, the exemptions are a step in the right direction to allow garments and fibers that consumers want, which are designed as sleepwear. One can only hope that opponents to a rational approach to regulation will not get their way in the future.

Frederick B. Locker is a principal partner in the law firm of Locker Greenberg & Brainin, P.C. in New York City. He is admitted to the Bar of the State of New York and various Federal courts throughout the country. He is also a member of the Advisory Committee, United States Chamber of Commerce/National Association of Manufacturers on Product Safety. He has acted as counsel for the Receptive Services Association and individual members in disputes within the industry. Locker Greenberg & Brainin, P.C. is actively engaged in the representation of many large international and national trade associations and corporations, including but not limited to the Toy Manufacturers of America (TMA), the Juvenile Products Manufacturers Association (JPMA) and the Childrenswear Manufacturers Association (CMA). The practice involves representation of associations and corporations in negotiations and proceedings before independent U.S. regulatory agencies such as the U.S. Consumer Product Safety Commission (CPSC), the Federal Trade Commission (FTC) and the U.S. Food and Drug Administration (FDA), and many State Attorney General offices. Mr. Locker has frequently been invited to present testimony on behalf of his clients to U.S. Congressional Committees and various state legislative committees. Additionally, Mr. Locker serves as a participant and advisor to many voluntary standards committees developing standards to ensure the safety of a wide range of children's consumer products.