The CPSC recently approved a new and extremely broad Federal Safety Standard for Infant Sleep Products that “will ensure that products marketed or intended for infant sleep will provide a safe sleep environment for babies under 5 months old.” The full Press Release can be found here. The final rule was published in the federal register on June 23, 2021 with a compliance date of June 23, 2022.
This safety standard is sparking considerable discussion in the juvenile products industry. The Baby Carrier Industry Alliance (BCIA) believes that this rule is constitutionally flawed, overly broad in scope, and is not based on incident and economic data that adequately supports such a rule. We believe that the Infant Sleep Products rule is “arbitrary and capricious” government overreach, because it captures far too many unrelated products in a wide net without the actual data to support doing so. This is a good article on the issue addressing the dearth of reliable data supporting the CPSC rule.
The intent of this CPSC standard is to address products designed to facilitate sleep that are not currently regulated, such as inclined sleepers, in-bed sleepers and travel bassinets. Baby carriers generally appear to be excluded from this rule in that carriers, by function, are meant to facilitate transportation and foster bonding, and are not designed or intended specifically to facilitate sleep as their primary use. The Infant Safe Sleep Products standard specifically aims to cover products that do not fall under a current mandatory standard for infant sleep.
Carriers are also already regulated under existing product safety standards: F2236 Soft Carrier Standard; F2907 Sling Standard; and F2459 Frame Carrier Standard, but these are not on the list of standards that would exclude a product from the overreach of the Infant Sleep Standard.
Additionally, the overly broad scope of the Infant Sleep Products rule suggests that manufacturers must exercise extreme caution to avoid having their products swept under the broad scope of this new rule. The preamble to the final rule states that:
products with inclined or adjustable seat back positions that are covered by other CPSC standards, such as infant bouncer seats, strollers, hand-held carriers, frame carriers, and infant swings, are excluded from the scope of the ASTM infant inclined sleeper standard, and they are also excluded from the scope of the final rule, unless the product is specifically marketed for infant sleep for an infant up to 5 months of age. Id. at 60951-52. If a product’s packaging, marketing materials, inserts, or instructions indicate that the product is for sleep, or includes pictures of sleeping infants, then CPSC will consider the product to be marketed for sleep. (italics added)Pg 15. Decisional Vote Sheet Infant Sleep Product Final Rule (cpsc.gov)
We are concerned that the mere inclusion of images of babies sleeping in carriers, whether company or consumer-generated, may empower the CPSC to seek recalls and bans against some infant carriers. This is not an imagined or manufactured concern as the CPSC has attacked the carrier industry as a whole in 2010, leading to the closing of BCIA member companies and the formation of the BCIA.
Of course, babies sleep up to 18 hours a day and some “ancillary” sleep is bound to occur in an infant carrier. Closely supervised sleep in a baby carrier does not present the types of hazards that the new Federal Safety Standard for Infant Sleep Products is trying to address. Any incidental sleep that may occur in a carrier is, by definition, under the close and awake attention of a caregiver wearing the child.
There are three potential approaches to consider when assessing how or if a carrier product might be marketed for sleep. Remember that this is not legal advice and you may wish to consult your own counsel in making these decisions. Here are some options to consider:
- You can stay the course, and continue on as normal with the usual marketing, images and information, based on the understanding that a carrier’s primary function is to facilitate transportation and bonding, and that sleep, should it occur, is incidental and is not the intended use of the product.
- Indeed, CPSC is widely expected to take enforcement actions that first address products that are more clearly intended to provide a flat or an inclined accommodation for infant sleep.
- You can take the conservative approach and remove or avoid all sleep references (including all references to “sleep, snooze, dream, or nap”) from your product listings, company name, instructions and images.
- You can also go for a “middle ground” and ensure that any images of children sleeping in your products are of children that are significantly older than 5 months of age, as CPSC’s new rule only covers products intended for infants up to age 5 months.
While CPSC is not likely to target infant carriers in its initial round of enforcement of the new rule, a carrier company facing CPSC enforcement action would have to respond through appropriate legal channels. Should this actually come to pass, please notify the BCIA immediately. BCIA, as the only trade organization formed specifically to protect baby carrier manufacturers and members, intends to stand behind its member companies,includings taking up this issue officially on behalf of the industry.
Note: If you produce other juvenile products that are not specifically covered by an existing standard, it would be prudent to read over the new Infant Sleep Products final rule to see if or how it may apply to your product(s). You may wish to seek your own legal counsel to advise you.
Update July 27, 2021
We asked the CPSC for an official designation regarding whether carriers are within the sleep products standard and this was the response:
The marketing of the product is likely to play a big part in whether it is under the infant sleep products rule. Typically, infant and toddler carriers, such as slings, SITCs, and frame child carriers, are worn by the parent or caregiver and while the child might fall asleep in the carriers, they are generally not marketed or promoted as “sleep products,” and therefore, would not be within scope of the regulation. However, if the advertising, marketing, and promotion (more than just a sleeping baby in the product) implies that carriers would be used primarily for sleep, then they would likely be considered sleep products and be within scope of the infant sleep products rule.
Additionally, it’s important to note that children are under continuous supervision while in a carrier because a parent is wearing the product, and the children are not likely to be placed in the product and left alone specifically to sleep, which leads to saying the product is not within scope of the infant sleep products rule.
While it is prudent to remain mindful (as in the original advice above,) the primary intention of the Infant Sleep Products Standard is not meant to include baby carriers.