Thank you to summer associate Parth Patel for contributing to this article.
The House passed two bills on June 23, 2021 aimed at protecting infants and children from potentially dangerous furniture. First, the Stop Tip-overs of Unstable, Risky Dressers on Youth (“STURDY”) Act would direct the Consumer Product Safety Commission (“CPSC”) to make new mandatory rules for furniture stability.1 Second, the Safe Sleep for Babies Act would forbid the sale of padded crib bumpers and inclined sleep products for infants.2 These bills follow a recent vote by the CPSC to impose new standards on inclined sleepers. Manufacturers and retailers should look out for any Senate action taken on the two new bills and additional CPSC activity in these areas.
The History of Inclined Sleepers and Furniture Tip-Overs
In recent years, deaths caused by inclined sleepers and unstable furniture have garnered public attention. CPSC data links about 45 child deaths to falling furniture every year.3 Similarly, the CPSC linked at least 73 infant deaths to inclined sleepers in 2019 alone.4 These safety issues entered the public dialogue following some highly-publicized child and infant deaths in 2014.5
Starting in 2015, the CPSC responded with public awareness campaigns, voluntary standards, and recalls. To address the furniture stability issue, the CPSC launched its Anchor It! campaign in 2015.6 The campaign educated parents about furniture tip-over and encouraged them to anchor particularly unstable pieces of furniture. Additionally, the CPSC encouraged manufacturers to abide by voluntary furniture stability standards.7 To address the inclined sleeper concerns, the CPSC has largely relied on voluntary recalls. Since 2019, the CPSC has assisted manufacturers with at least eight voluntary recalls of inclined sleepers.8 The CPSC stayed this course until this summer.9
Recent CPSC Activity
On June 2, 2021, the CPSC approved a final rule establishing new mandatory standards for infant sleep products. The new rule requires that all infant sleep products either satisfy an existing CPSC infant sleep standard or be tested to ensure an incline of less than 10 degrees and compliance with the CPSC’s Safety Standard for Bassinets and Cradles.10 The final rule, passing 3-1, sparked some debate as Commissioner Baiocco argued the rule’s breadth deprived parents of safe co-sleeping options.11 Nonetheless, the new rule is set to go into effect in June 2022.12 The CPSC also continues to rely on voluntary recalls. Most recently, it announced a recall of over three million newborn loungers by the Boppy Company after reports of eight infant deaths from suffocation.13
The CPSC has not yet taken official regulatory action regarding furniture stability, though in 2019 Acting Chairman Ann Marie Buerkle told attendees at the Annual Symposium for the International Consumer Products Health and Safety Organization that clothing storage units (and potentially television stands and other large furniture) that do not meet applicable ASTM standards will be subject to investigation and could present a substantial product hazard under Section 15(a) of the CPSA.14
Recent Congressional Action
The House passed the STURDY Act, introduced by Rep. Jan Schakowsky (D-Ill), and the Safe Sleep for Babies Act, introduced by Rep. Tony Cardenas (D-CA). Both bills passed through the House Committee on Energy and Commerce without incident and were approved by the House on June 23 with bipartisan support.15 The bills were sent to the Senate where they have been referred to the Committee on Commerce, Science, and Transportation.16
The STURDY Act would require the CPSC to make new mandatory rules regarding “clothing storage unit[s].” A “[c]lothing storage unit” is “any free-standing furniture item […] intended for the storage of clothing, typical of bedroom furniture.” The bill would require the CPSC to promulgate a standard requiring all such units go through tests simulating the weight of children up to 60 pounds and real world use. The CPSC’s standard would also need to include a warning requirement based on ASTM F2057-19.17
ASTM F2057-19 requires clothing storage units display a warning in a conspicuous place. That warning must read, “Children have died from furniture tipover. To reduce the risk of furniture tipover: ALWAYS install tipover restraint provided[,] NEVER allow children to stand, climb, or hang on drawers, doors, or shelves[,] NEVER open more than one drawer at a time[,] [p]lace heaviest items in the lowest drawer. This is a permanent label. Do not remove!”18 While the STURDY Act would require the CPSC to make a warning standard based on ASTM F2057-19, it also directs the CPSC to strengthen the standard if necessary.19
The Safe Sleep for Babies Act would forbid the sale of padded crib bumpers and inclined sleepers for infants. The Act defines a “crib bumper” as any material intended to cover the inside of a crib to protect the occupant from impacts against the side of the crib or to prevent access to gaps in the crib. The Act excludes mesh crib liners from the ban. The Act defines an “inclined sleeper for infants” as any product intended for the sleep of infants that is inclined greater than 10 degrees.20
Both bills are now in the Senate’s hands, but it is unclear what action the Senate will take. Last session, two similar bills passed the House only to stall in the Senate.21 It is possible that the new composition of the Senate will allow the bills to go forward. As of now, the Senate has yet to take any action on the bills.
Next Steps for Furniture or Infant Sleeper Manufacturers and Retailers
As it stands, neither the Safe Sleep for Babies Act nor the STURDY Act are law. Regardless, though, the CPSC’s new rule on inclined sleepers is slated to go into effect in June 2022, and it has followed through on former Acting Chairman Buerkle’s direction with strict compliance requirements for furniture manufacturers. Accordingly, manufacturers and retailers should ensure that relevant products comply with the CPSC’s new standards, namely that they either comply with an existing infant sleep standard or that they are tested to ensure that they incline less than 10 degrees and that they meet the CPSC’s Safety Standards for Bassinets and Cradles as well as ASTM F2057-19 (and others) for furniture. Manufacturers and retailers should also continue to monitor the Senate for any news on the Safe Sleep for Babies Act and the STURDY Act and consider whether making changes to comply with this proposed legislation is advance of its passing makes sense.
1 Rachel Rabkin Peachman, House Passes Two Bills Promoting Safer Children’s Products, Consumer Reports (June 23, 2021).
2 Thomas Russel, House passes two child safety initiatives, Furniture Today (June 24, 2021).
3 TV and furniture tips-overs kill dozens of children every year, report shows, Family Safety & Health (Feb. 4, 2021).
4 Rachel Rabkin Peachman, More Infant Sleep Products Linked to Deaths, a Consumer Reports Investigation Finds, Consumer Reports (Oct. 21, 2019).
5 Peachman (2021), supra, fn.1.
7 Cheryl A. Falvey et al., New Proposed Legislation to Prevent Furniture Tip-Over, Crowell Moring (Mar. 4, 2021).
8 Safe Sleep – Cribs and Infant Products Information Center, Consumer Product Safety Commission (last visited Sept. 29, 2021).
10 Press Release, Consumer Product Safety Commission, News Release: CPSC Approves Major New Federal Safety Standard for Infant Sleep Products (June 2, 2021).
12 Safety Standard for Infant Sleep Products, 86 Fed. Reg. 33022 (June 23, 2021).
13 Recall Notice, Consumer Product Safety Commission, The Boppy Company Recalls Over 3 Million Original Newborn Loungers, Boppy Preferred Newborn Loungers and Pottery Barn Kids Boppy Newborn Loungers After 8 Infant Deaths; Suffocation Risk (Sept. 23, 2021).
14 Acting Chairman Ann Marie Buerkle, Remarks for the 2019 Int’l Consumer Product Health and Safety Org. Ann. Symposium (Feb. 27, 2019).
15 Peachman (2021), supra, f.n1.
16 Stop Tip-overs of Unstable, Risky Dressers on Youth (“STURDY”) Act of 2021, H.R. 1314, 117th Cong. (2021); Safe Sleep for Babies Act of 2021, H.R. 3182, 117th Cong. (2021).
17 STURDY Act of 2021, supra, fn.12. The STURDY act directs the CPSC to promulgate warning requirements “based on ASTM F2057-17, or its successor at the time of enactment.” ASTM F2057 has since been succeeded by ASTM F2057-19.
18 Falvey, et al., supra, fn.7.
19 Safe Sleep for Babies Act of 2021, supra, fn.12.
20 Safe Sleep for Babies Act of 2021, supra, fn.12.
21 Safe Sleep for Babies Act of 2019, H.R. 3172, 116th Cong. (2019); Stop Tip-overs of Unstable, Risky Dressers on Youth (“STURDY”) Act of 2019, H.R. 2211, 116th Cong. (2019).