CPSC Issues Final Order On Congoleum Carpet Case

By a 4-l vote, the Commission on July 14 denied an appeal filed by Congoleum Industries of Kearny, New Jersey, from Administrative Law Judge Daniel H. Hanscom's initial decision of November 12, 1974.

Judge Hanscom's decision, which was adopted by the Commission in its final order, instructs Congoleum to obtain a sample of carpet from every roll of Endureze 9113 not previously tested by government laboratories and to submit all such samples to the Consumer Product Safety Commission for testing. The Company must notify purchasers, including ultimate consumers, if the carpet tested fails flammability requirements.

Endureze 9113 is a wall-to-wall level loop foam-backed olefin carpeting manufactured in Congoleum's Wilburton, Oklahoma, plant between early summer 1971 and August 1973. Further, Congoleum must provide refunds for any of the violative carpet still in distribution channels or not yet installed.

Congoleum has 60 days in which to report to the Commission how it intends to comply with the order. However, the Company may still request the Commission to reconsider its decision or seek judicial review in the U.S. Court of Appeals.

The Congoleum case has been in adjudicative proceedings since 1972 when the Federal Trade Commission, which previously had authority to administer the Flammable Fabrics Act, issued a complaint against the firm for manufacturing and selling carpeting that allegedly violated flammability requirements. Congoleum denied the carpeting violated the law and questioned the validity of the carpet flammability standard and test procedures.

In his decision, Judge Hanscom also affirmed the validity of the standard and the test procedures.

In a minority opinion, Commission Chairman Richard O. Simpson said he dissented in part from the majority decision because he does not believe that the Flammable Fabrics Act provides authority to require notification, recall and repurchase. Simpson agreed, however, that Congoleum had violated the Flammable Fabrics Act and indicated that regulatory action could be taken under Section 15 of the Consumer Product Safety Act.

Copies of the final order and minority opinion are available from the Office of the Secretary, U.S. Consumer Product Safety Commission, 1750 K Street, N.W., Washington, D.C. 20207. (Telephone 202/634-7700).