Recent Decision Confirms CPSC Recall Authority Under Flammable Fabrics Act

This is the first time that a judge has ordered a recall of products regulated under the Flammable Fabrics Act. In most cases, companies voluntarily agree to recall products that do not pass flammability tests.

The decision is an initial decision and may be appealed to the Commissioners of the Consumer Product Safety Commission. On November 22, Congoleum filed with the Commission a notice of intention to appeal.

Congoleum Industries, Inc., Kearny, New Jersey, will have to obtain samples and test every roll not previously tested by government laboratories of Endureze 9113, a wall-to-wall level loop foam-backed olefin carpeting manufactured in Congoleum's Wilburton, Oklahoma, plant between early summer 1971 and August 1973, when manufacture of that style of carpet ceased.

All purchasers, including ultimate consumers, must be notified if the carpeting fails to meet the flammability requirements. If the non-complying carpeting has not been installed or if it is still in distribution channels, the company will have to provide refunds.

The carpeting that failed the flammability tests will have to be reprocessed to bring it into conformity or destroyed.

The Federal Trade Commission, which enforced the Flammable Fabrics Act prior to the establishment of the Consumer Product Safety Commission, issued a complaint against Congoleum in September 1972 for manufacturing and selling carpeting that allegedly violated flammability regulations.

Congoleum denied that the carpeting violated the law and attacked the validity of the carpeting standard and the test procedures involved. The issues were complicated since Congoleum had used two different formulations in manufacturing the carpeting and test results varied.

Congoleum and the FTC staff argued the case in lengthy adjudicative proceedings in 1972 and.1973. The proceedings continued under CPSC. In May 1974,the Commission denied a motion to discontinue the case and directed Federal Trade Commission Chief Administrative Law Judge Daniel H. Hanscom to review the record and to issue an "initial decision."

Judge Hanscom, who forwarded his decision to CPSC on November 12 upheld the validity of the carpet flammability standard and the test procedures.

He noted that certain testing procedures, such as determining how to maintain a draft-free environment during the burning phase of the test, must be left to the discretion of experienced testing technicians. He recognized that differences in test results may be due to fabric variations and not to the test methods.

Judge Hanscom did not accept Congoleum's arguments that carpeting could be sold which passed the flammability tests most of the time, but which failed some of the time.

Judge Hanscom also prohibited Congoleum from manufacturing, selling or distributing any carpeting in the future which does not comply with applicable flammability standards.

According to a Commission spokesman, the case is of substantial importance in confirming the Commission's authority to effectively enforce the Flammable Fabrics Act and to achieve the removal of hazardous products from the marketplace.