[co-author: Ronald Johnson]
When it comes to a baby's room, many parents find that matching is a must. One type of "matching" item that many consumers purchase is a pad that lines the interior of a crib, known as a crib bumper. Indeed, crib bumpers are heavily marketed in retail stores, and are often included in infant bedding sets for the aesthetic purpose of providing matching décor in a child's nursery.
Interestingly, crib bumpers originally became popular in the 20th century because the spindles or slats of some traditional cribs were so far apart that a baby's head could get stuck in between them.1 Today, due to regulatory action, crib slats are closer together. See, 16 C.F.R. § 1219. However, many parents still worry that babies may bump their heads against the crib slats. Therefore, although the original purpose of crib bumpers has changed, these products are still widely used by consumers for safety reasons.
With crib bumpers playing a role in modern child development, it is important to fully consider and understand the current and proposed regulations regarding crib bumpers.
What is a crib bumper?
The term "crib bumper" is specifically defined in the "Glossary of Terms" section of 16 C.F.R. § 1633.9(i) as a "[p]added cushion which goes around three or four sides inside a crib to protect the baby . . . [and that c]an also be used in a playpen." In addition, ASTM F1917-12 provides voluntary standards for "infant bedding and related accessories," including "bumper guards" and "headboard bumper guards."2
Current status of federal, state and local rules governing crib bumpers
There are currently no federal regulations restricting or governing the use of crib bumpers. While there is also no proposed federal rulemaking regarding crib bumpers, regulatory action may be on the horizon. Both the juvenile products industry and consumer groups have recently advocated for regulation of these products.
In June 2012, the Juvenile Products Manufacturers Association (JPMA) requested that the U.S. Consumer Product Safety Commission (CPSC) initiate rulemaking to distinguish and regulate "hazardous pillow-like" crib bumpers from "non-hazardous traditional" crib bumpers.3 The JPMA asserted four points: 1) certain groups were advocating banning crib bumpers from the marketplace; 2) JPMA's third-party review failed to support claims of increased risk of infants due to traditional crib bumpers; 3) banning "traditional" crib bumpers would have unintended consequences; and 4) the most recent ASTM standard performance requirements provide a reasonable basis for a mandatory crib bumper performance standard.4
ASTM F1917-12, referenced in the JPMA's Petition, includes requirements for: a) testing to ensure the attachment component of the crib bumpers does not exceed nine (9) inches; b) securing crib bumpers to the crib; c) maximum crib bumper thickness; d) marking and labeling; e) unsupported vinyl used in bedding; and f) instructions for product labeling and warning labels. Most notably, the standard states that bumpers must be capable of being compressed down to two (2) inches in thickness or less. While many groups advocated for a complete ban of the product, the CPSC stated at that time that it did not have enough information to ascertain bumper thickness or softness in crib bumper incident reports.5
Since 2012, news reporters have taken an active role in highlighting the potential dangers posed by crib bumpers, including the risks of suffocation and strangulation cited as possible causes of death in multiple consumer reports. In response, local and state jurisdictions took action to confront these risks. Chicago banned the sale of crib bumpers in 2012.6 Maryland banned sales of these products within its borders on June 21, 2013.7 Watchung, New Jersey passed an ordinance on October 20, 2016, banning the sale of crib bumper pads within the borough.8 Finally, Ohio's Senate Bill 332, establishing a ban on non-mesh crib bumper pads, became law on April 6, 2017.
In February 2016, the CPSC published a notice seeking information regarding the safety benefits of crib bumpers. See, Consumer Product Safety Commission, Request for Information Regarding Crib Bumpers, 81 Fed. Reg. 30 (issued Feb. 16, 2016). The request specifically sought information regarding 1) whether safety hazards are associated with crib bumpers; 2) the existing safety standards that apply to crib bumpers; and 3) potential performance, testing, and other standard requirements that may reduce the risk of injury. On September 9, 2016, the CPSC Staff prepared a Briefing Package for the CPSC, in response to Request for Information.9 The CPSC Staff found that crib bumpers likely do not present an unreasonable risk of injury or constitute a hazardous substance. The CPSC Staff concluded that out of 107 fatalities, only 9 of those deaths likely would have been prevented if the crib bumper was not present.
On November 3, 2016, the CPSC responded to the CPSC Staff's 2016 Briefing Package.10 The CPSC disagreed with Staff's approach in analyzing the data regarding crib bumpers. The CPSC issued a joint statement warning the public not to use padded crib bumpers because they pose a "clear risk of injury or death." Further, the CPSC indicated that crib bumper rulemaking would be added to its Fiscal Year 2017 Operating Plan.11
Impressions
While it is currently unclear how the CPSC may handle crib bumper rulemaking in 2017, manufacturers and distributors of these products should expect that this issue will continue to be debated. Currently, compliance with ASTM F1917-12 is key for any manufacturer, seller or distributor of crib bumpers and other soft infant bedding.
1 Heather Corley, Are Crib Bumper Pads Safe?, ABOUT.COM (Mar. 8, 2016).
2 ASTM Standard F1917-12, 3.1.4, Standard Consumer Safety Specification for Infant Bedding and Related Accessories, ASTM INTERNATIONAL, 2012, www.astm.org.
3 Consumer Product Safety Commission, Petition Requesting Commission Action Regarding Crib Bumpers, 77 Fed. Reg. 122 (proposed June 25, 2012).
4Id.; See also, Memorandum from DeWane Ray, Assistant Executive Director, Office of Hazard Identification and Reduction, and Jonathan Midgett, phD, Children's Hazards Team Leader, Office of Hazard Identification and Reduction, to the Consumer Product Safety Commission and Todd A. Stevenson, Secretary, Consumer Product Safety Commission 1 (May 15, 2013).
5Id. at 6–7.
6 Chicago, Illinois, Municipal Code § 7-36-112.
7 Md. Code Regs. 10.11.07.03.
8 Watchung, N.J., REV. ORDINANCES ch. 6, § 6-13 (2016).
9CPSC Staff Response to the Record of Commission Action on Crib Bumpers, U.S. CONSUMER PRODUCT SAFETY COMMISSION (Sept. 9, 2016).
10 Joint Statement of Chairman Elliot F. Kaye, Commissioner Robert S. Adler, Commissioner Marietta S. Robinson, and Commissioner Joseph P. Mohorovic Recommending Parents and Caregivers not use Padded Crib Bumpers, U.S. CONSUMER PRODUCT SAFETY COMMISSION (Nov. 3, 2016).
11Id.
