Recent News from Our Law Firm

Since mid-2007, stringent federal flammability standards have applied to mattresses and to mattress sets offered for sale in the United States, the rationale being that they present a large source of “fuel load.”  These open flame requirements are contained within 16 CFR 1633 and serve to supplement the cigarette ignition requirements contained within the much older (1972) federal regulation of 16 CFR 1632.


 

In addition to mandating a new federal flammability label on the products themselves, 1633 requirements impose various other obligations upon those companies involved in the manufacture, importing or distribution, and offering for sale of mattresses and mattress sets.  These new requirements include product rigorous testing and performance requirements, recordkeeping, labeling and the adoption of quality control programs and procedures by a company suitable to meet the substantive requirements of 1633.   Exemption language does appear in 1633 but is limited to physician prescription and “one of a kind” situations.

Notably, mattresses used in sofa beds, flip chairs and in pull-along trailers must meet the requirements of both 1632 and 1633 while mattresses used in boats, truck cabs or in recreational vehicles (RVs) do not.  (Mattresses used on boats fall within Coast Guard regulations while mattresses used in truck cabs or in RVs must meet motor vehicle standards.) Crib mattresses also fall within the scope of both flammability regulations and, since they are considered to be “children’s products,” must be tested and certified by a third-party Commission accredited laboratory. Mattress pads or toppers do not fall within the scope of the flammability requirements of 1633, but only those of 1632.

Each of the requirements of 1633 necessitates careful deliberation by a company involved with mattress or mattress set sales. Notably, 1633 is a “performance criteria” requirement, meaning that companies have the ability to meet it the way(s) they believe best. The last ten years of living with this new flammability requirements demonstrates that different companies choose to meet those requirements in vastly different ways.  Third party laboratories have aided in this process, closely working with their company clients both with testing and with the prototype records requirement. Consulting companies have sprung up, frequently offering a menu of permitted product configurations and materials, thereby allowing smaller companies the ability to pool their resources and proceed upon using shared testing data, drastically minimizing individual testing costs. 1633 allows for this.

While 1633, like 1632, has the most dramatic impact upon the finished mattress producer, it impacts other companies in the supply chain as well, including the ultimate retailer who can only offer for sale compliant mattresses or compliant mattress sets. Put simply, it is now vitally important that each company in the supply chain work with its counterparts at other companies to ensure both consistency of ordered or delivered product (including materials and supplies) as well as enhanced product traceability.  Failure to meet either (or both) 1632 and 1633 typically means that a report must be filed under Section 15(b) of the Consumer Product Safety Act. Similar reporting obligations exist within the Canadian provinces now that Canada has its own mattress flammability requirements. In recent years Health Canada has taken a more aggressive approach in this area.

Premarket testing is a critical part of 1633:  in order for a mattress or mattress set to be legally offered for sale here, three successful and consecutive tests measuring energy output must have been achieved of a given “prototype.”  Once that kind of testing has been undertaken the prototype is considered “qualified” and other models of that product may, with certain testing of its own undertaken, be considered “subordinate.”  The need to retest a model is frequently triggered upon the substitution of a different component or simply as a function of the passage of time, typically one year. Additional testing is typically undertaken as well when large number of units have been produced or when a company chooses to conduct random testing as a check on its various suppliers.

Companies which change the design or construction of their bedding products do so at risk of retriggering the need for new testing.

Significantly, only mattresses offered for sale as a “set” or as “intended to be sold alone” can be tested under 1633. There is no specific test procedure which can be used with foundations, box springs or adjustable bases.  Because of this, any company involved in the production of box springs, foundations or adjustable bed bases needs to closely work with mattress producers so that the necessary flammability label appearing on the mattress will list such foundation, box spring or adjustable bed base. Failure to do so can result not simply in lost sales but in possible enforcement issues as well.

The Consumer Product Safety Commission is, of course, the federal agency charged with enforcement of these flammability regulations and it has regularly conducted surprise inspections, or audits, at manufacturing facilities as well as corporate offices.  Recall of non-compliant product has resulted from those government audits.  In addition, as a result of these audits, company paperwork has been rejected as insufficient, labels have been cited as non-compliant and the need for Certificates of Compliance has been pointed out. Renovated mattresses and mattress sets fall within the scope of 1633 and the Commission has not been reluctant to test such products.  A number of recalls associated with such renovated products have subsequently resulted.

With the current Administration desire to reduce industry’s regulatory burden and an anticipated shift in the political composition of the Commission, such a regulatory rollback is now within the realm of possibility. Sure enough, in Summer 2017 the Commission indicated a willingness to seriously review, possibly move to repeal entirely, its cigarette ignition requirements found in 1632.  A meeting with senior agency staff then took place in December of 2017 at which time it was noted that cigarette smoking has declined markedly and that greatly improved fire and smoke detection techniques have improved considerably since 1632 requirements went into effect decades ago.  Industry representatives also pointed out in recent years that those requirements mandating the measurement of char lengths have been surpassed by the more rigorous ones of 1633 mandating the measurement of energy output.  Agency staff agreed with many of these observations and suggested that industry submit data points as to current product offerings.  After reaching agreement as to the scope of such work, all parties resolved to meet again when such data (both product and incident) could be reviewed.