[co-author: Ronald Johnson - Summer Associate]

On May 12, 1998, 16-month-old Danny Keysar died after his portable crib, also known as a play yard, collapsed while he was napping at his licensed childcare facility in Chicago. When the play yard collapsed, Danny's neck had become trapped in the folded rails of the play yard, effectively strangling him. The play yard at issue had been recalled in 1993, six-years prior to Danny's death. Three children died in the same model play yard prior to the 1993 recall, and a fourth child died in 1995.

Danny's parents, Linda Ginzel and Boaz Keysar, thereafter founded an organization known as "Kids in Danger," and began working to reform the juvenile product system in order to prevent potentially dangerous products from reaching the marketplace. Influenced by this movement, U.S. Rep. Jan Schakowsky (D-IL) introduced "Danny's Law," also known as the "Infant and Toddler Durable Product Safety Act," in November 2001, which required safety standards for different types of products that were saved and reused by families for multiple children.¹ In 2008, the U.S. Congress passed the Consumer Product Safety Improvement Act (CPSIA), which incorporates provisions of Danny's Law and requires mandatory federal standards for over a dozen durable juvenile products.² Specifically, Section 104 of the CPSIA gives the Consumer Product Safety Commission (CPSC) authority to promulgate mandatory safety standards for durable infant and toddler products. The mandatory standards established by the CPSC may be substantially the same as any current voluntary consumer product safety standards for such durable products (such as voluntary standards established by ASTM International), or may be more stringent than the voluntary standards, if the CPSC determines that a stricter standard would further reduce the risk of injury.

The passage of the CPSIA marked Congress' recognition that consumer confidence in children's products would increase if safety standards were made mandatory, and that every child should be safe while sleeping. As a result, Congress has created some of the strictest child sleeping device standards in the world. While there are many different types of child sleeping devices, such as cribs, bassinets and bedside sleepers, this article will focus on the current and proposed regulations related to play yards, which are at the heart of "Danny's Law" and Section 104 of the CPSIA.

What are play yards?

Play yards have long been a staple of childcare and childrearing, with the words "play yard" or "play pen" dating back to a Washington Post article in 1902.³ With play yards still playing an important role in developing and containing children today, it is important to fully consider and understand what falls within the description of a play yard.

Play yards range from basic models that are simply enclosed play and nap spaces for babies, to more advanced models that include attached bassinets, changing tables, music, and storage options. A number of models are portable, and can be packed up for easy travel. For regulatory purposes, the term "play yard" encompasses a "framed enclosure with a floor made for the purpose of providing sleeping and playing accommodations for a child who cannot climb out and is less than 35 in[ches]" tall.⁴ While accessories, such as bassinets and changing tables, are covered by their own applicable regulatory requirements, they are also covered under the description of "play yard" if they are used as an accessory for a play yard device. However, the scope of the regulation does not extend to inflatable products. More specifically, a play yard is defined as a "framed enclosure that includes a floor and has mesh or fabric sided panels primarily intended to provide a play or sleeping environment for children[,] . . . [which] may [be] fold[ed] for storage or travel."⁵

Current regulations governing play yards

Play yards, as well as other non-full-size cribs, have been regulated heavily compared with other child sleeping devices. As previously stated, Section 104 of the CPSIA gave the CPSC authority to promulgate consumer product safety standards for many durable infant and toddler products, including play yards. The CPSC responded by passing a regulation requiring mandatory consumer product safety standards for play yards in 2013. See, 16 C.F.R. § 1221, et seq. This regulation and accompanying standard applies to all play yards manufactured or imported into the United States on or after February 19, 2014. 16 C.F.R. § 1221.1.

Like many of the mandatory standards promulgated by the CPSC, the regulation for play yards incorporates a majority of the voluntary standard ASTM F406-13⁶ for play yards, but has also created additional more stringent standards. The regulation exempts compliance of certain provisions of ASTM F406-13. Specifically, under 16 C.F.R. § 1221, a play yard manufacturer need not comply with the ASTM F406-13 standards for the following:

• mattresses for rigid-sided products
• performance of rigid-sided products
• testing of component spacing, cutouts, plastic teething rail for rigid-sided products, cyclic, side or end latch for rigid-sided products, mattress support system vertical impact for rigid-sided products, equipment, crib side, and spindle/slat static load strength 
• recordkeeping
• assembly instructions⁷

In addition, 16 C.F.R. § 1221 mandates that if a play yard has a separate mattress that is not permanently fixed in place, then the consumer should only use the mattress or pad provided by the manufacturer of the play yard.⁸

Two of the most critical sections of 16 C.F.R. § 1221.2, which incorporate specific provisions of ASTM F406-13, are the provisions relating to play yard structural and performance requirements. Play yard structural requirements can be categorized into "general requirements," as well as more specific, categorical requirements for the following play yard components:

• corner posts
• scissoring, shearing, or pinching
• latching and locking mechanisms
• openings
• protective components
• labeling
• stability
• cord/strap length
• coil springs
• entrapment in accessories
• mattresses
• protrusions
• bassinet and cradle accessories

Performance requirements for play yards mandated by 16 C.F.R. § 1221 provide specific parameters for the following:

• satisfying structural requirements of play yards
• height of the sides of the play yard
• side deflection and strength
• floor strength
• top rail covering material
• mesh
• fabric material
• assembly of mesh and fabric
• mattress vertical displacement
• top rail configuration
• top rail to corner post attachments

As with all durable infant and toddler products, play yards must pass certain specific third party testing before they are sold on the market in the U.S. The mandatory testing and safety requirements for play yards required by 16 C.F.R. § 1221 include:

• a stability test to prevent the play yard from tipping over
• latch and lock mechanisms to keep the play yard from folding on a child when the product is in use
• entrapment tests to prevent a child's head from getting trapped while a bassinet or other accessory is attached
• floor strength tests to ensure product integrity and to prevent children from getting trapped by the play yard floor
• minimum side height requirements to prevent children from getting out of the play yard on their own
• a test to prevent play yards that have top rails that fold downward from using a hinge that creates a "V" or diamond shape when folded to prevent head or neck entrapment
• requirements for strong corner brackets to prevent sharp-edged cracks and side-rail collapse

Proposed updates to play yard regulations

Despite the relatively new mandatory standards regulating play yards required by 16 C.F.R. § 1221, a new rule relating to play yard products has recently been proposed. On June 16, 2015, an organization known as Keeping Babies Safe (KBS) submitted a petition to the CPSC to initiate rulemaking to ban supplemental mattresses from use in play yards with non-rigid sides.⁹

In its petition, KBS stated that supplemental mattresses in play yards present an unreasonable risk of injury and/or death to infants. Specifically, KBS maintains that children may become trapped in between the gaps created when a supplemental mattress is added to a play yard. KBS contends that no feasible consumer product safety standard would adequately protect infants from the risk associated with these supplemental mattresses. Despite the current regulatory warnings based on ASTM F406-15 regarding use of supplemental mattresses or any mattress thicker than 1.5 inches in play yards, KBS maintains that supplemental mattresses continue to be actively marketed to consumers to be used with play yards. KBS concluded in its petition that modifying the language in the existing standard would not adequately protect consumers from death and/or injury, so the most effective way to confront such risk is to ban supplemental mattresses from use with play yards altogether.

On August 11, 2015, the CPSC sought public comments to KBS' Petition. The comments period closed on October 13, 2015, with 166 comments on the petition received by the CPSC. No further action has yet been taken regarding this petition.

Impressions

Following the deaths of Danny Keysar and other children in play yards, the CPSC has justifiably taken a strict approach regarding the regulation of play yards and other durable infant and toddler products. The need for specific and strict standards related to play yards specifically was one of the instrumental reasons for the adoption of the CPSIA in 2008. The current 16 C.F.R. § 1221, which was passed into law in 2013 and is based on voluntary standard ASTM F406-13, provides warnings and test methods that all manufacturers and sellers of play yards and related products must adhere to before selling any such product in the U.S.

Since the adoption of this mandatory standard relating to play yards, the consumer group Keeping Babies Safe has filed a Petition for Proposed Rulemaking seeking to make regulations of play yards even stricter by banning the use of supplemental mattresses with play yards. This petition is currently pending before the CPSC. Regardless of the outcome of this petition, it is important for children's products manufacturers to be mindful of all current regulations regarding play yards set forth in 16 C.F.R. § 1221. It is also important for manufacturers to be aware of ASTM F406-15, which was updated in 2015 and provides the most current voluntary standards related to play yards and related products.

1. Office of Jan Schakwosky, Schakowsky Celebrates New CPSC Child Safety Requirements for Play Yards, (June 27, 2012)
2. Consumer Product Safety Improvement Act Of 2008, PL 110–314, section 104, 122 Stat 3016 (August 14, 2008)
3. Tom Vanderbilt, What Ever Happened to the Playpen?, SLATE, (Aug. 7, 2009)
4. ASTM Standard F406-15, 1.2, Standard Consumer Safety Specification for Non-Full-Size Baby Cribs/Play Yards, ASTM International, 2015
5. Id., at 3.1.21
6. ASTM F406-13 was modified in 2015. The current version of the voluntary standard is ASTM F406-15. However 16 C.F.R. § 1221 specifically references the 2013 version of ASTM F406, and therefore ASTM F406-13 is the current mandatory standard for play yards required by federal law.
7. 16 C.F.R. § 1221.2(b)(1)-(4), (6)
8. 16 C.F.R. § 1221.2(b)(5)
9. Consumer Product Safety Commission, Petition Requesting Rulemaking on Supplemental Mattresses for Play Yards with Non-Rigid Sides, 80 Fed. Reg. 154 (proposed Aug. 11, 2015)