CPSC Issues 15(j) Rule to Refuse Entry to Kid's Drawstring Tops, Etc.

(This is CPSC’s second “15(j)” rule, a new general defect authority of section 15(j) of the Consumer Product Safety Act (CPSA) as amended by the Consumer Product Safety Improvement Act (CPSIA), which allows CPSC to define the presence or absence of characteristics meeting certain criteria¹ as a defect for a class of products. The characteristic may be one that should not be present (e.g. drawstrings) or one that should be present (e.g. hairdryer immersion protection). CPSC has stated that “15(j)" in effect allows the agency to make aspects of voluntary standards mandatory without establishing a new mandatory standard.)

Kid’s Upper Outwear not Meeting ASTM Drawstring Standard Added to Hazard List

The final rule adds the following product to the “Substantial Product Hazard List” of 16 CFR 1120.3:

Children’s upper outerwear in sizes 2T to 16 or the equivalent, and having one or more drawstrings, that is subject to, but not in conformance with, the requirements of ASTM F 1816--97, Standard Safety Specification for Drawstrings on Children’s Upper Outerwear, approved June 10, 1997, published August 1998, available here.

Definition of Drawstrings Includes Ties, Does not Mention Channel

The final rule defines a “drawstring” as “a non-retractable cord, ribbon, or tape of any material to pull together parts of upper outerwear to provide for closure.” CPSC calls attention to the fact that the definition does not exclude ties. Therefore ties will continue to be included within the definition of “drawstrings” in this final rule as has been CPSC’s practice for some time when addressing drawstring hazards. CPSC also notes that this definition makes no mention of the cords, ribbons, or tapes needing to pass through a channel to be considered drawstrings.

CPSC Can Use Several Methods to Determine Size Equivalents to 2T-16

At its option, CPSC may use one or more of the following methods to determine what sizes of children’s upper outerwear are equivalent to sizes 2T to 16:

• Consider other sizing as equivalent -- The final rule states that garments in girls’ or boys’ size Large (L) are equivalent to size 12, and garments in girls’ or boys’ sizes smaller than Large (L), including Extra-Small (XS), Small (S), and Medium (M), are equivalent to sizes smaller than size 12. Garments in girls’ or boys' size Extra-Large (XL) are equivalent to size 16. (CPSC warns that simply labeling an item of children’s upper outerwear with a waist or bottom drawstring as being larger than size Extra-Large (XL) does not necessarily mean that the item is not equivalent to a size in the range of 2T to 16. It add that the garments do need not state anywhere on it, or on its tags, labels, package, or any other materials accompanying it, the term “girls” or the term “boys” or whether the garment is intended for girls or boys in order to fall within the scope.)

• Size ranges. In cases in which a garment label gives a range of sizes, if the range includes any size that is subject to a requirement in ASTM F 1816-97, the garment will be considered subject to the final rule, even if other sizes in the stated range, taken alone, would not be subject to the requirement. For example, a coat sized 12 through 14 remains subject to the prohibition of hood and neck area drawstrings, even though this requirement of ASTM F 1816-97 only applies to garments up to size 12. A coat size 13 through 15 would not be considered within the scope of ASTM F 1816-97’s prohibition of neck and hood drawstrings, but would be subject to the requirements for waist or bottom drawstrings.

• Any other evidence. CPSC may use any other evidence that would tend to show that an item of children’s upper outerwear is a size that is equivalent to sizes 2T to 16, even if it is otherwise labeled.

Products Equivalent to 2T to 16 & Not Clearly Marketed for Adults Should Comply

According to a CPSC response to a comment in the preamble, if upper outerwear is labeled ambiguously or not marketed clearly for adults only and is equivalent to a size within the range of 2T to 16, then that upper outerwear should meet the ASTM drawstring requirements and should be subject to the 15(j) rule for drawstrings. If a manufacturer, retailer, or distributor has any doubt, it should report the garment to the CPSC in accordance with section 15 of the CPSA.

Products w/Drawstring Hazards Require Reporting, to be Refused Admission, Etc.

A product with a substantial product hazard, such as drawstrings, faces the following restrictions and requirements:

• Must be reported immediately to CPSC -- is subject to the reporting requirements of section 15(b) of the CPSA (15 USC 2064(b)). A manufacturer (includes importer) who fails to report a substantial product hazard to the Commission is subject to civil and possibly criminal penalties.

• Subject to corrective action (i.e., recall) -- is subject to corrective action under section 15(c) and (d) of the CPSA (15 USC 2064(c), (d)) which means that CPSC can order the manufacturer, distributor, or retailer of the product to offer to repair or replace the product, or to refund the purchase price to the consumer.

• Will be refused admission -- will be refused admission into the U.S. under section 17(a) of the CPSA (15 USC 2066(a)).

Testing/Certification and State Preemption Do Not Apply

CPSC explains that “15(j)” rules such as this one are not consumer product safety rules and do not create consumer product safety standards. Therefore, the CPSIA testing and certification requirements do not apply to this final rule. (However, CPSC has previously warned that the products on the Substantial Product Hazard List may need to be tested and certified for compliance with other CPSC requirements which are consumer product safety rules (such as flammability, lead content, etc.).)

Likewise, the state preemption provisions in section 26(a) of the CPSA do not apply. These are the provisions under which no State or political subdivision of a State may either establish or continue in effect a requirement dealing with the same risk of injury where a federal consumer product safety standard is in place, unless the State requirement is identical to the Federal standard.

¹These criteria include that: (i) the characteristics are readily observable; (ii) the characteristics have been addressed by voluntary standards; (iii) such standards have been effective in reducing the risk of injury; and (iv) there is substantial compliance with such standards.

(See ITT’s Online Archives or 07/13/11 and 07/14/11 news, 11071316 and 11071344, for BP summaries of Macy’s agreeing to a $750,000 penalty for CPSC drawstring violations.

See ITT’s Online Archives or 06/28/11 news, 11062813, for BP summary of CPSC’s first “15(j)” rule, which was on hairdryers without certain immersion protection.

See ITT’s Online Archives or 05/17/10 news, 10051763, for BP summary of the proposed 15(j) rules for drawstrings and hairdryers.)

CPSC contact - Tanya Topka (301) 504-7594, ttopka@cpsc.gov

(FR Pub 07/19/11)