Commissioners Pass Infant Sleep Products Rule 3-1

Commissioners June 2 voted 3-1 to approve the infant sleep products rule. Commissioner Dana Baiocco's vote was to direct staff to revisit the inclusion of certain flat products under the scope, especially in-bed sleepers. Although Commissioner Peter Feldman voted yes with Acting Chairman Bob Adler and Commissioner Elliot Kaye, he expressed worry about potential court challenges based on procedural deficiencies.

Baiocco's position stemmed in part from a recent influx of assertions that the rule would ban products like in-bed sleepers. A fear is that the rule might have the unintended consequence that populations that often co-sleep – whether because of culture or economic situations – would have less-safe options for that practice.

The problem for in-bed sleepers is not inclined surfaces (the origin of the rule) but rather provisions from CPSC's bassinet rule involving stands and side heights. Compliance would require redesign. Although the Section 104 rule is based, with revisions, on ASTM F3118-17a for inclined sleepers, it alternatively allows compliance with five other CPSC rules on infant sleep products.

Meanwhile, Feldman's position stemmed from input about the rulemaking process, including assertions about insufficient notice that flat-surface products would be included. Indeed, before the final vote, Feldman sought a decision to have staff reconsider and resubmit an NPR with more justification related to flat products.

Adler suggested that the focus on surfaces under 10º as the only safe-sleep option was sufficient to put makers of flat products on notice about the scope of the rule.

Kaye solicited and got confirmation from agency staff that any product types that could not meet CPSC rules still could be targets of future ASTM standards that then could be incorporated via Section 104.

Adler later issued a statement (bit.ly/34MIBTn) with some of his closing remarks, including:

"What we've done today fulfills the most sacred of our obligations as Commissioners—to take steps to protect vulnerable consumers, including babies. I note that what we are protecting them from is not something that is malevolent or nefarious. In fact, we are protecting babies from the most loving and well-intentioned of acts – when a loving parent or caregiver puts a baby into a product that is intended or marketed for sleep."

Feldman issued a statement (bit.ly/3g42v1n) including:

"I have voted yes on this final rule, but I would have much rather we adopted the amendment I offered that would have put this rulemaking on a more solid foundation. I fear that legal challenges, which could take years to resolve, will end up costing more time and resources than the Commission has to spare."

On bed-sharing, Baiocco June 3 wrote (bit.ly/3g96n11):

"It is imprudent and perhaps even irresponsible for the Agency to ignore these realities and to not fully consider the consequences here. Frankly, I am beyond disappointed that these parents were summarily discounted and their requests to be fully heard rejected. In my opinion, the Agency did not give due consideration to how the final rule would impact diverse cultures alternative parenting practices, and the socio-economic needs of all consumers."

CPSC's June 2 press release (bit.ly/3fOOHJj) asserted that it is not taking action against co-sleeping, but "shifts responsibility to manufacturers to assist parents who want to bed-share, by requiring them to produce only products that are safe to do so."