Recalls in Review: A monthly spotlight on trending regulatory enforcement issues at the CPSC.
As more communities lift pandemic-based restrictions on travel and social gathering sizes, Americans will increasingly begin moving homes and renovating furnished rental and guest rooms—which often includes replacing older mattresses. Historically, mattresses were highly flammable and contributed significantly to house fires, leading Congress to address the safety concern through its enactment of the Flammable Fabrics Act (FFA) in the 1970s.
Through the FFA, the Consumer Product Safety Commission has authority to regulate mattresses and mattress pads, including setting a federal flammability standard (16 C.F.R. § 1632), which was promulgated in 1973 to require ignition resistance of mattresses and mattress pads to smoldering cigarettes. The standard applies to mattresses—including traditional mattresses of all sizes, crib mattresses, futons, mattresses in sleeper sofas and campers, and water bed and air mattresses containing upholstery materials—and mattress pads and covers. The federal Standard for the Flammability (Open-Flame) of Mattress Sets (16 C.F.R. § 1633), which became effective in 2007, was designed to increase the time that consumers have to discover and escape bed fires by limiting the size of the fire generated by a mattress set. Mattresses must meet the performance, labeling, and record keeping requirements of both standards as applicable before the products can be entered into commerce in the United States.
Crib and children’s mattresses and mattress pads are subject to several additional substantive requirements, such as lead content limits under the Federal Hazardous Substances Act and the lead limits in surface coatings and phthalate content limits under the Consumer Product Safety Act (“CPSA”). Crib and children’s mattresses and mattress pads must also be tested for compliance by a CPSC-accepted third-party laboratory, be supported by a Children’s Product Certificate, and bear a children’s product tracking label. Additionally, all mattresses that contain previously used stuffing are required to bear a tag or label indicating that all or part of the stuffing is previously used, under the Textile Fiber Products Identification Act. Individual states may also impose additional labeling requirements.
A review of recall history indicates that the CPSC did not really begin wielding its enforcement authority regarding mattresses until the mid-1990s. Since that time, approximately 40 recalls of mattress and mattress-related products have been conducted, with thirty-eight of those recalls occurring in the last fifteen years alone. Enforcement has generally increased since 2005 and peaked in 2015 with seven total recalls occurring that year.
Mattress-related recalls have targeted several different types of mattresses and mattress pads. The most commonly recalled product types are “traditional” mattresses (including spring, foam, and unspecified mattresses, 47%), crib mattresses (20%), and folding foam-based mattresses (12%). Other recalled product types include the mattresses and cushions from sofa beds, foldable mattresses within ottoman beds, a mattress pad, a mattress cover, and an air mattress.
According the information provided by the CPSC recall announcements, approximately eighty-two percent of mattress-related recalls address the risk of fire posed by failure to meet one of the flammability standards for mattresses. Forty-seven percent of the recalls address violations of the federal Open Flame Standard. Thus, the increase in recall activity after 2007 was largely driven by the promulgation of the Open Flame Standard. The other thirty-five percent of the recalls address violations of the federal safety Standard for the Flammability of Mattresses and Mattress Pads.
Fifteen percent of the mattress-related recalls address entrapment risks to infants or young children. Three recalls involved improperly sized crib mattresses, one involved a crib mattress that could be compressed and pushed through the bars of a crib, and one involved the possibility that a child could become trapped between an air mattress within a tent and the fabric sides of the tent.
The most common remedies offered by recalling firms is a free mattress cover or liner intended to bring the mattress in compliance with the mandatory standards (40% of the recalls) or a replacement mattress or cushion (22.5% of the recalls). Less often, the remedies may be limited to refund, store credit, or other types of repairs intended to bring existing mattresses into compliance with the mandatory standards.
Despite the general increase in mattress-related recalls over the last two decades, the CPSC has not issued any civil penalties involving mattress products since 2000. Before that time, the CPSC had issued three total civil penalties related to mattresses—all for futon mattresses that allegedly violated the Federal Safety Standard for the Flammability of Mattresses and Mattress Pads. The manufacturers also allegedly failed to conduct proper flammability tests on their futons or maintain records demonstrating that the required testing had been conducted. The fines for the civil penalties (imposed before the statutory penalty cap was increased) ranged from $7,500 to $60,000.
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About Recalls in Review: As with all things, but particularly in retail, it is important to keep your finger on the pulse of what’s trending with consumers. Regulatory enforcement is no different—it can also be subject to pop culture trends and social media fervor. And this makes sense, as sales increase for a “trending” product, the likelihood of discovering a product defect or common consumer misuse also increases. Regulators focus on popular products when monitoring the marketplace for safety issues.
As product safety lawyers, we follow the products that are likely targets for regulatory attention. We share our observations with you through Recalls in Review.