Last week, on December 1, 2016, CPSC’s Office of Compliance, under the leadership of CPSC’s Mary Toro (Director, Office of Compliance, Regulatory Enforcement), held a comprehensive full day seminar on the laws, regulations, and rigorous flammability testing requirements applicable to children’s sleepwear.

The seminar, which members of Arent Fox attended, not only focused on the technical aspects of the complex array of flammability testing requirements for children’s sleepwear (involving multiple rounds of testing of pre-production fabrics and prototype seams, as well as finished garments), but it provided perspective and insight from CPSC’s children’s sleepwear compliance staff and CPSC’s technical and laboratory staff, in terms of the interpretative nuances that often exist in this complex area. The staff also provided valuable guidance on how to assess “tight-fitting sleepwear” that is exempt from the flammability testing requirements, as well as characteristics of a garment that cause consumers to view it as sleepwear.

In an effort to educate the industry on procedural and enforcement issues, CPSC featured speakers from its Office of General Counsel on timely reporting of non-compliant products and the avoidance of civil penalty assessments, as well as from its import and inspection divisions concerning the agency’s procedures for imported sleepwear, certification requirements, and unannounced compliance visits to companies. CPSC was candid about the fact that competitors within the sleepwear industry are a primary source of its information on potential sleepwear violations, but that the agency devotes significant resources towards market surveillance, both online and in stores. Significantly, CPSC indicated that it is continuing to monitor the marketplace for “loungewear" garments, which are garments that the CPSC has determined are worn by children for sleep-related activities (i.e., before bedtime and early in the morning around breakfast time) and which must meet the sleepwear flammability standards. CPSC noted that many such loungewear garments have been found to be made of non-compliant fabric that fails to meet the strict children’s sleepwear flammability requirements.

As evidence of CPSC’s continued enforcement in this area, CPSC revealed that sleepwear recalls comprised nearly 33% of all recalls of CPSC-regulated products between 2012 and 2016, which even exceeds the percentage of recalls involving hazardous lead content, small parts, or poisonous substances. We don’t anticipate any reduction in children’s sleepwear monitoring and enforcement in 2017, even with the transition to the incoming administration, as the focus on the safety of children and children’s products cuts across all party lines and we believe it will remain a top priority despite any potential budget cutbacks