Intent vs Practice Might Be Debate in Inclined Sleeper Ban

How to decide what is a product for infant sleep could become a debate in CPSC's implementation of the recently enacted safe sleep law. Narrow or broad interpretations of words in the law are favored by different responders to CPSC's recent comment period (PSL, 7/18/22). Illustrating this division are two reactions to the agency's question about how to understand the phrase, sleeping accommodation, in the context of the law's inclined sleeper ban.

Consumer Reports wrote:

"The CPSC should interpret “sleeping accommodations” as any product that parents or caregivers reasonably would be expected to use for the purpose of having a baby sleep, regardless of duration and whether or not the sleep is attended/supervised. In the wake of CR's reporting and the recalls of the Fisher-Price Rock 'n Play and other similar products, many inclined sleep products were repackaged and renamed with a different stated purpose, like a 'soother' or 'lounger.' This practice all too easily could have created confusion for parents and allowed for inclined sleep products to remain on the market under a different name. The Commission should apply the term 'sleeping accommodation' broadly enough to account for such practices and ensure that any products that either were intended, marketed, or designed originally for infant sleep or that include key design elements of inclined sleepers are subject to scrutiny for the purposes of this ban."

However, JPMA wrote:

"[T]he term sleeping accommodation as used within the [law] should be interpreted as a place or space primarily used to satisfy the need for sleep. Had Congress intended to define an Inclined Sleeper for Infants as any product in which an infant may incidentally sleep, it would have done so; it did not."

'Infant products that are intended, marketed, and designed for awake and engaged time with infants, such as infant rockers, swings, and bouncers, should not be considered subject to the [law] and are not covered by the [CPSC's infant sleep products rule] because their primary purpose is not to provide sleep accommodations. Products such as infant rockers, swings, and bouncers are also not commonly thought of by the industry or by caregivers as places for babies to sleep overnight. Given that the [CPSC rule] had been published for nearly a year when the [law] was enacted and Congress did not take a different position, a consistent interpretation should be applied when interpreting, codifying, and enforcing the [law's] ban."

CPSC got 66 comments (bit.ly/3BlkU5x) on the law's ban of inclined sleepers. However, it got fewer comment on the crib bumper aspects (see related story in this issue).

Meanwhile, Reps. Carolyn Maloney (D-N.Y.) and Raja Krishnamoorthi (D-Ill.) September 2 wrote (bit.ly/3Bu0MhT) to CPSC seeking clarity on the question. They respectively chair the House committees on oversight and reform and on economic and consumer policies. They asked:

"Given these concerns, we are seeking additional clarity as to whether the CPSC's anticipated rule will apply to all products that could pose risks to infants during sleep. Simply because an inclined product is not marketed for sleeping does not mean that infants will not fall asleep in such a product, and it is important to understand how this rule would affect the full range of products that have an incline of more than ten degrees."