The U.S. Consumer Product Safety Commission (CPSC) published a final rule on March 2, which contains mandatory safety standards for frame child carriers. These products often contain various types of nonwoven materials and had previously been subject to voluntary standards created by the American Society for Testing and Materials (ASTM). The rule will become effective on September 2, 2016.

Under ASTM International Standard number F2549, frame child carriers are defined as “a product, normally of sewn fabric construction on a tubular metal or other frame, which is designed to carry a child, in an upright position, on the back of the caregiver.’’  

CPSC notes that users of frame carriers are children, able to sit upright, unassisted and weigh between 16 and 50 pounds.
According to CPSC data, there are more than 2 million frame child carriers currently in U.S. households with children under the age of 6 and about 54% of these carriers are currently in use.  

The primary impact of this rule, therefore, is that firms who manufacture or supply these products will have to have them tested by third-party “assessment bodies”—an expensive undertaking—if they want to keep selling them in the U.S. market.  

CPSC has identified 16 firms that will likely be impacted by the rule. Five of these companies manufacture in the U.S., eight of them are importers and the source of one supplier could not be determined. The two remaining companies CPSC was able to identify are outside the U.S., including one firm that imports products from abroad and distributes them exclusively outside the U.S.

According to the commission, some of these companies may not be familiar with ASTM F2549 because they don’t manufacture or supply any other children’s products—a circumstance CPSC uncovered in preparing the proposed version of the rule.  Moreover, CPSC is aware of some frame child carriers that don’t meet all the provisions of ASTM F2549 and, therefore, would have to be modified or pulled from the market.

CPSC action on the issue is authorized under Section 104 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) which, according to the Commission, requires that Federal safety standards be promulgated for many different types of durable children’s products. Any CPSC standards promulgated under this section of the law must be “substantially the same” as any applicable voluntary standards already in place or—if the Commission determines that more stringent requirements would better reduce risk of injury associated with a durable children’s product—Section 104 of the CPSIA allows CPSC to develop a standard that is more stringent.

The Commission originally proposed the rule on May 16, 2014, and the proposed version called for incorporation of ASTM F2549-14a, a voluntary standard that has been on the books for years, with one proposed substitute provision: the establishment of clear pass/fail criteria for the existing test contained in the ASTM version.  

In developing its proposed version of the rule, CPSC states that it consulted with manufacturers, retailers, trade organizations, laboratories, consumer advocacy groups, consultants and the public at large, and that after publishing its proposed version of the rule the Commission only received two public comments on the matter. This is normally a good sign indicating that impacted stakeholders—including manufacturers—are not particularly concerned about the Commission’s intended action.  

In this case, however, one of the comments on the proposed rule noted that the cost-benefit ratio developed by CPSC is flawed because there are very few injuries associated with these products even though the costs of mandatory third-party testing would be extremely expensive for small domestic businesses. The commenter requested that CPSC adopt self-certification as an alternative and noted that her firm might be forced to exit the market if mandatory testing requirements are put in place.  

Indeed, CPSC concedes it can’t develop a firm approximation of actual injuries associated with frame child carriers because the number of reports contained in the Commission’s National Electronic Injury Surveillance System is “insufficient to meet the CPSC Directorate for Epidemiology (EPI) publication criteria.”  That said, however, the Commission was able to identify 33 incidents between 2003-2014 that involved injury caused by frame child carriers—none of which were fatal—and, based on this number, estimates that some 120 injuries have occurred annually over the past 10 years.  

In response to this concern over the cost-benefit ratio associated with rule, CPSC states that its calculations in the proposed version of the rule aren’t flawed; rather, no cost-benefit analysis was conducted at all. Under Section 104 of the CPSIA, CPSC notes, there is no need to do a cost-benefit analysis nor is there any need to assess the impact of mandatory standards on small businesses.  

All that is required of CPSC under Section 104 of the CPSIA is that the Commission must adopt mandatory standards which are substantially the same as any existing voluntary standards—or more stringent if CPSC determines that the more stringent standard would further reduce the risk of injury associated with a product. Thus, according to the Commission, the only ability it has to reduce negative impacts on small businesses is to provide a later effective date.

The Commission further notes that its ability to address testing costs in the context of section 104 is similarly limited because applicable legal requirements do not allow CPSC to modify existing voluntary standards to reduce testing costs. Again, the commission is only allowed to either adopt an existing voluntary standard or develop a more stringent standard.

So as a sort of palliative to the expressed concern that companies might have to leave the market in order to address a “hazard” that is responsible for less than 1% of emergency room visits for children age six or younger each year—and zero fatalities during the past 10 years at least—CPSC is giving manufacturers and suppliers of frame child carriers 18 months to comply with the new rule.  

Or maybe this 18 month implementation it isn’t really a palliative at all. It may actually be related to the fact that there currently aren’t any accredited bodies capable of testing frame child carriers.  As CPSC notes in the preamble to its final rule, “One commenter stated that she had a problem finding laboratories that could conduct the proposed testing. In a follow-up phone conversation with the commenter, [CPSC] staff provided specific contacts for three laboratories. Although not yet accredited to test frame child carriers, all three laboratories are capable of testing frame child carriers to the final rule because they have experience testing frame child carriers to the ASTM standard referenced in the final rule.”

Copies of ASTM F2549-14a are available (for a fee) from ASTM International, 100 Bar Harbor Drive, P.O. Box 0700, West Conshohocken, PA 19428. Interested parties can inspect a copy at the Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814. Copies of the standard are also housed for public view through the National Archives and Records Administration (NARA).

For additional information from CPSC, contact Julio Alvarado, Compliance Officer, Consumer Product Safety Commission by mail at the Bethesda address above, or by telephone at 301-504-7418. Mr. Alvarado may also be reached by email via jalvarado@cpsc.gov. n

Peter Mayberry is president of Mayberry & Associates in Washington, DC.  He served as INDA’s Director of Government Affairs from 1989-2009 and is also the author of nonwovensregs.com and can be reached via e-mail addressed to peter@mayberryandassociates.com.