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CPSC Reiterates that Children’s Loungewear is Subject to Sleepwear Standards

Wednesday, January 04, 2012
Sandler, Travis & Rosenberg Trade Report

The Consumer Product Safety Commission sent a letter to manufacturers, distributors, importers and retailers last month to reinforce its enforcement policy on children’s sleepwear and loungewear. The letter warns that it is a violation of federal law to manufacture for sale, sell, offer for sale, import and/or distribute garments that are subject to and fail to meet the children’s sleepwear standards and that the CPSC intends to take enforcement action against firms that market loungewear items that do not comply with those standards.

The children’s sleepwear standards were developed to prevent children’s sleepwear from igniting due to exposure to ignition sources such as matches/lighters, candles, ranges, stoves, space heaters and fireplaces. CPSC regulations define “children’s sleepwear” to include any product of wearing apparel (in sizes 0–14), such as nightgowns, pajamas or similar or related items, that are intended to be worn primarily for sleeping or activities related to sleeping. This definition exempts diapers and underwear, infant garments sized for a child nine months of age or younger, and tight-fitting garments that meet specific maximum dimensions.

In addition, the CPSC views loungewear or other similar garments marketed as comfort wear as garments worn primarily for sleep-related activities that are thus subject to the children’s sleepwear standards. The Commission considers several factors when determining whether a garment is sleepwear, including the nature of the garment and its suitability for sleeping or activities related to sleeping; the type of fabric, decorative features and print pattern; how the garment is promoted and distributed; the likelihood that the garment will be purchased for and used by children primarily for sleeping or activities related to sleeping; and the manufacturer’s marketing terms or designations. The CPSC bases its position that loungewear must comply with the children’s sleepwear standards on the background development and text of those standards, the literature on the definition and trends regarding loungewear, a review of a number of catalogs to see what types of garments are being marketed as loungewear, where in stores and catalogs loungewear is generally marketed, and discussions with manufacturers and importers of children’s sleepwear and underwear.

The letter also notes that under the Consumer Product Safety Improvement Act, in addition to the mandatory testing of children’s sleepwear (and clothing) to the flammability standards, the manufacturer must issue a children’s product certificate stating compliance with the applicable requirements based on testing by a CPSC-accepted and -accredited third-party conformity assessment body. The certificate must accompany the product when it enters commerce and be furnished to the retailer, whether sold online or in a traditional brick and mortar store, or distributor. The CPSIA also requires that all children’s products, including sleepwear, bear tracking labels, meet requirements for lead content and surface coatings (e.g., painted snaps or zipper pulls) and meet requirements for phthalates (sleepwear is considered to be a childcare article).

The CPSC concludes by pointing out that the manufacture for sale, sale, offering for sale, importation and/or distribution of garments in the U.S. that fail to comply with applicable flammability standards, or the failure to comply with the tracking label and certification requirements, could be met with fines of up to $100,000 for each violation, imprisonment for not more than five years or both. The maximum penalty for any related series of violations increased from $15 million to $15.15 million as of Jan. 1. Companies can also be subject to injunctive action or their products could be subject to seizure to prevent further distribution of violative products.

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