CPSC Votes To Amend Children's Sleepwear Regulation

The U.S. Consumer Product Safety Commission voted today (CPSC)(2-1) (with Commissioners Mary Sheila Gall and Thomas Moore in the majority and Chairman Ann Brown dissenting) to amend the current children's sleepwear standard under the Flammable Fabrics Act.

The amendments will permit the sale of tight-fitting children's sleepwear and sleepwear for infants aged nine months or under, even if the garments do not meet the flammability standards ordinarily applicable to such sleepwear. The new amendments will become effective 18 months after the date that they are published in the Federal Register and the existing stay of enforcement will remain in effect until that date.

In commenting on the amendments, Commissioner Moore said, "As a data-driven agency, we sometimes find that our data support the relaxation of a consumer protection regulation without compromising the safety of consumers. Over the years the CPSC has taken a number of initiatives that have reduced potential ignition sources in the home. Those other actions contributed to our ability today to allow consumers a limited cotton option for children's sleepwear garments."

Commissioner Gall said, "As a commissioner and a mother, I hope parents will wisely choose the safer alternative of tight-fitting cotton sleepwear garments made possible by these amendments, rather than loose-fitting T-shirts."

The commission 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.

CPSC used nine months instead of six as the sizing criteria for infants' sleepwear because of sizing practices within the clothing industry. The commission hopes that its action will enable consumers who prefer cotton sleepwear to choose safer tight-fitting garments rather than loose-fitting non-flame retardant clothing, such as oversize T-shirts.

U.S. CONSUMER PRODUCT SAFETY COMMISSION
WASHINGTON, D.C. 20207

STATEMENT OF THE HONORABLE MARY SHEILA GALL
ON VOTE TO AMEND THE FLAMMABILITY
STANDARD FOR CHILDREN'S SLEEPWEAR

April 30, 1996
I voted to amend the regulations pertaining to the flammability of children's sleepwear. The record conclusively demonstrates that the type of sleepwear that will be permitted for sale by the amended regulations does not pose an unreasonable risk of the occurrence of fire leading to the death or injury of children. The record compiled by the staff demonstrates that for many years there have been no injuries, either in the United States or Canada, associated with the single point ignition of the type of children's sleepwear that this amended standard will permit to be sold. There are verifiable reasons why sleepwear permitted by this amended regulation (tight-fitting cotton garments) is not likely to result in death or injury from single point ignition fires. Its fit close to the body gives it three fire-resistant features: (1) it is less likely to come into contact with an ignition source; (2) less air is available to feed the fire even if the cloth is ignited; and (3) the close proximity of the skin acts as a "heat sink" to retard the spread of fire.

The amended regulation that the Commission adopts today is very similar to the one set forth in the staff proposal. There is a slight change; the new regulation exempts infant sleepwear garments from the sleepwear flammability requirements if they contain a label stating that they are intended for use by infants under nine months. The staff recommendation specified six months. Information that the Commission received about sizing practices in the infants clothing industry persuaded me that so many six-month old children are wearing garments "sized at" nine months that this change will result in no reduction of safety.

The Commission received many sincere comments urging us not to exempt any children's sleepwear garments at all from the present sleepwear flammability standards. Although I understand the motives of these commenters, I am convinced that the amendments that we adopt today will lead to safer choices for consumers than the loose-fitting non-flame retardant garments that many consumers now use as children's sleepwear. I urge parents to select children's sleepwear carefully with an eye towards flammability considerations, and I urge all members of the apparel industry to join with those members that have agreed to conduct an information and education campaign to educate consumers about the relative flammability hazards posed by various sleepwear garments.

U.S. CONSUMER PRODUCT SAFETY COMMISSION
WASHINGTON, D.C. 20207

STATEMENT OF COMMISSIONER THOMAS HILL MOORE
ON THE CHILDREN'S SLEEPWEAR FLAMMABILITY STANDARD

APRIL 30, 1996
This has been the toughest decision I have had to make since coming to the Commission. For me, there is no perfect solution to the dilemma with which we are faced. There is reason to believe that increasingly consumers are circumventing the intent of the sleepwear regulation by allowing their children to sleep in cotton non-sleepwear garments, and yet there is no data to indicate the cotton garments allowed under our stay of enforcement have resulted in fire deaths or injuries.

Even so, we still have questions about the sufficiency and/or meaning of the no-injury data and, therefore, questions of certainty as to what will be the impact of further sanctioning a limited cotton option in the sleepwear market and thus changing a regulation many feel has served the nation well for 20 years.

If it were legally supportable under the Administrative Procedure Act and our own statutes, I would have preferred to keep a string on this amendment to the sleepwear standard by letting it go into effect for a set number of years and, toward the end of that time, reviewing the results to see how those injury statistics compared with the staff's current projections of what they would be. If, at that time, the data portended that increased use of cotton sleepwear garments would have meant significantly increased fire injury risks to children, the amendment would have been automatically revoked. There does not seem to be a way to achieve this without having to go through a full-blown rulemaking proceeding at the end of the review period.

The critical issue is, if you cannot control a family's use of non-complying, cotton products as sleepwear, what is the best solution for protecting child safety under these circumstances? I am offering the next best solution. I voted today to amend the sleepwear standard to allow tight-fitting garments (as defined in the staff proposal) in sizes larger than nine months to be made from cotton. These garments would still be subject to the flammability requirements of the general wearing apparel standard but would no longer be subject to the more stringent sleepwear standard.

I also voted to alter the staff proposal to allow infants' garments sized nine months and smaller to be made from cotton, without having to meet the tight-fitting requirements, provided they are clearly labeled to indicate that the size is nine months or smaller. This will exclude sleepwear for infants who are not very mobile and, therefore not likely to put themselves in the way of an ignition source, as consumers tend to buy larger sizes for rapidly growing infants and, most likely, infants wearing size nine would be six months or younger. Our data indicates that children of this age (indeed, even children up to the age of one year old) are not the victims of sleepwear ignition injuries or death.

My vote was predicated on certain conditions. The preamble to this rule must make it clear--and I want to underscore this point--that the Commission will continue to carefully and thoroughly monitor the injury statistics related to sleepwear ignition and if, at any time, we see a notable resurgence in fire injury risks related to infants' or children's cotton sleepwear, we will act quickly to commence a rulemaking to review the advisability of continuing to allow these garments in the marketplace. And I have asked the staff to provide this data to the Commissioners on a frequent, periodic basis so we can watch this situation very carefully. Also, it is worth reiterating that if the Commission were to see a particular garment that is clearly linked with increased fire injuries, the Commission can and will take appropriate action against that product.

If problems do develop, I want to make sure the Commission learns of them promptly. To this end, I invite medical and fire fighting professionals to help us compile the most accurate data possible about this type of fire-related hazard. The Commission has received a number of letters from both types of professionals opposing any change to the sleepwear standard. Many of the comments were based on a fear of what might happen, coupled with the knowledge of how devastating burn injuries can be, rather than on any concrete data about deaths or injuries from the cotton underwear and playwear garments which are currently being used as sleepwear.

Based on the scientific information and fire data presently available, we expect to continue to see a lack of fire injuries and deaths if tight-fitting cotton sleepwear is allowed in the market and is used properly. But I encourage those most concerned about this regulation from its safety perspective to be vigilant in helping to monitor this situation. I also want them to be reassured that our action today does not mean that we will fail to follow very carefully the impact this relaxation in the standard has on the safety of our nation's children.

Despite the current sleepwear regulations, we know that some parents either specifically seek out non-sleepwear cotton garments for their children to sleep in or allow their children to sleep in their cotton underwear/daywear although they may not have originally purchased the garments for that purpose. The increase in long underwear sales since our stay of enforcement is some evidence of this use. Both the experience under the stay, and to some extent, the lack of a problem under the more liberal Canadian standard, lead to the conclusion that we can also relax our standard without harm.

Given the fact the American consumer is already experimenting in this area and doing it blindly, it behooves the Commission to at least try to control this situation by allowing a tight-fitting cotton sleepwear garment on the market and by giving consumers the information they need to make an informed choice.

I believe, with certain safeguards, we can give parents a limited cotton option, which they seem to want. However, I also believe it is critical to remind parents why the infants' and children's sleepwear standard was promulgated in the first place. Some manufacturers I spoke with during this deliberative process confirmed my own suspicions-- people do not know why they cannot obtain cotton sleepwear for their children. The origins of the regulation have passed from the memory of an older generation and have not been transmitted to the next. If parents are to be given a choice, they need to have the information on which to base their decision.

Certain industry groups, such as the National Cotton Council and the American Apparel Association, as well as individual companies, such as Carter's, have given assurances they will mount an information and education campaign, with CPSC guidance, which I hope will help consumers to understand why the cotton sleepwear garments that are being allowed on the market must fit their children snugly; why certain types of sleepwear garments will remain polyester; and, why loose fitting cotton garments should not be used as sleepwear.

I believe it is imperative that a visible point of purchase label of some type either be on the garment or on or inside the garment wrapper. As necessary as information and education campaigns are, unless they extend across generations (and neither industry nor the CPSC has that kind of money), they have a limited life, and once over with, people will rapidly forget--just as current parents have--the reason for the limited cotton sleepwear options. A proper label will continually remind consumers of the purpose of the regulations.

In conjunction with reminding the public about the purpose of the sleepwear regulations, the information and education campaign should educate retailers as to why it is important to separate complying sleepwear from noncomplying underwear and daywear that could be used for sleepwear. A commingling of those products dilutes the message we are trying to send to consumers and makes it more likely that even the most educated consumer will inadvertently buy a product other than the one they originally intended to buy: buying instead a non-sleepwear alternative that is not as tight-fitting and, therefore not as safe for sleeping, as a similar complying sleepwear garment.

In addition, I am encouraged that, at least in the short-term, a well-designed and broadly disseminated information and education campaign will assist the Commission in addressing a problem we uncovered as part of our review of the fire death and injury statistics, and that is the problem of children sleeping in loose fitting non-sleepwear garments, typically t-shirts. Tragically, this is where the deaths and injuries are occurring.

Residential fire deaths and injuries have declined dramatically over the last twenty years. And deaths and injuries from all types of clothing ignition (not just the sleepwear that is the subject of this rulemaking) have gone way down. Since its inception, the Commission has attacked the nation's fire problem, as it relates to consumer products, on a number of fronts, including making products such as portable electric and kerosene heaters safer and requiring disposable cigarette lighters to be child-resistant. Thus, many of the ignition sources that led to the promulgation of the sleepwear standard have been significantly reduced. Other groups, often in conjunction with the Commission, have attacked the problem from an educational perspective. And certain societal changes, such as a decline in the number of adults who smoke, have also contributed to the decline in residential fires.

The continued need for the infants' and children's sleepwear standard, as originally conceived, is thus hard to quantify. I believe the standard has played a role, and, I also believe that the standard, as we propose to amend it, along with a strong consumer information and education program, will continue to play a role in reducing injuries and deaths to our children from sleepwear ignitions.

Statement of Chairman Ann Brown
Children's Sleepwear
April 30, 1996
For nearly 25 years, America's children have been protected from the risk of fire from their sleepwear.Their parents have been secure in the knowledge that their children's sleepwear was flame resistant. The CPSC's flammability standards for children's sleepwear have worked to protect America's children. But today, I fear that action is being taken that may result in a reduction of the level of safety afforded our children and grandchildren. Based on the record before the Commission, I cannot join with my fellow Commissioners in amending the children's sleepwear standards by exempting tight-fitting garments and exempting completely garments under size 9 months.

In deciding whether to amend the children's sleepwear flammability standards, my primary concern has been and will continue to be the safety of children. According to the staff, exempting tight-fitting 100% cotton sleepwear from the children's sleepwear flammability standards, and exempting infants' garments regardless of whether they are tight-fitting, should not reduce the level of safety afforded by the existing standards. I believe this is speculative.

Available injury and death data demonstrate to me that the sleepwear standards are working. There have been very few injuries or deaths involving the ignition of children's sleepwear in recent years. I attribute this low level of injury and death primarily to the sleepwear standards.

I agree with the staff's conclusion that tight-fitting cotton garments present less of a hazard than loose-fitting cotton garments. But garments that comply with the existing sleepwear standards provide the best protection. There simply is no factual basis to conclude that by amending the sleepwear standards to allow the use of 100% cotton garments, parents will switch from loose-fitting cotton garments (e.g. t-shirts) to exempt tight-fitting sleepwear. There is no evidence of consumer demand for tight-fitting sleepwear. Indeed, it is just as likely consumers will purchase tight-fitting garments in larger sizes to increase comfort, and to allow a child to grow into the garment, thereby obviating any possible safety benefit staff has indicated might be achieved with tight-fitting garments.

Further, I am concerned that any purchase of tight-fitting garments will be at the expense of garments that meet the children's sleepwear flammability standards. If so, the level of safety afforded children may well be reduced.

I am also concerned that there will be a significantly decreased market for flame-resistant garments, and that, except for girls'nightgowns, flame-resistant garments could disappear from the market. Finally, rather than amending the standards with the understanding that the amendments could be revisited if injuries or deaths occur, we should rely on the existing standards to continue protecting our children.

I am particularly concerned with the vote to exempt from the flammability standards completely, garments under size 9 months. As any parent knows, children under 9 months of age often are mobile and can come in contact with ignition sources. In 1978, the Commission also considered whether to exempt from the flammability standards garments for young children, at that time it was garments under size 1 (generally worn by children under 12 months of age). At that time, the Commission reviewed 10 cases involving sleepwear garments. 43 Fed. Reg. 31,348 (July 21, 1978). Four of the infants in these 10 sleepwear cases were protected by their garments from more serious burn injuries. Two of these garments were reported to be flame resistant, and one other was thought to be flame resistant. The four victims sustained burn injuries only to the exposed areas of the body, and all four survived. In five other cases, the garments ignited contributing to or causing the burn injury. All five victims sustained severe burns. Id. Based on this information, the Commission rejected exempting garments under size 1. This same information leads me to conclude not to vote to amend the sleepwear standards to exempt garments under size 9 months.

I recognize that there may be a consumer preference for cotton garments. I understand and am sympathetic to this preference. But, it is the Commission's responsibility under the Flammable Fabrics Act to protect the public against the unreasonable risk of fire leading to death, injury or significant property damage. Based on the existing record, I conclude that the potentially higher risk of injury to infants and children from burns exceeds the possible benefits of 100 percent untreated cotton garments.

I do support the need to educate parents, new parents in particular, of the flammability danger presented by loose, flowing garments worn by children near sources of ignition. At least one major trade association and one major children's clothing manufacturer has indicated a willingness to join with the Commission in an education campaign to warn consumers of the flammability risk of loose, flowing garments. I urge them to do so.