At last week’s ICPHSO Annual Meeting, the US Consumer Product Safety Commission’s Acting Chairman Ann Marie Buerkle broke news to attendees, announcing that CPSC would deem “clothing storage units” that do not meet ASTM F2057-17 as posing a “substantial product hazard.” In concert with Buerkle’s announcement, CPSC’s Deputy Executive Director issued a letter to “Manufacturers, Importers, and Retailers of Clothing Storage Units” that effectively makes this existing voluntary safety standard mandatory.

This substantial product hazard designation may signal CPSC’s intent to evaluate products for compliance with the standard through port inspections, direct inquiry of manufacturers, importers, and private labelers, and market surveillance; seek recalls of existing non-compliant products; and punish non-compliant entities through “failure to report” civil penalty proceedings, as it did with drawstrings in children’s upper outerwear and hoverboards.

The clothing storage unit standard

ASTM F2057-17 defines a “clothing storage unit” as a “furniture item intended for the storage of clothing typical of bedroom furniture.” The standard requires tip over testing and permanent warning labels for any clothing storage unit over 30 inches in height.

ASTM F2057 has been the industry standard for clothing storage units for many years, but CPSC’s actions last week, and CPSC’s prioritization of the hazards of furniture tip over for many years, suggest that CPSC has considered existing compliance efforts inadequate.

CPSC’s letter

CPSC’s letter states that

Children face an unreasonable risk of serious injury or death from clothing storage units that fall within the scope of the ASTM F2057-17 standard but do not meet its requirements. Accordingly, the CPSC’s Office of Compliance and Field Operations staff will regard such products as having a defect which could present a substantial product hazard under Section 15(a) of the CPSA, 15 U.S.C. § 2064(a). Should we encounter such products, we shall initiate an investigation and will seek the corrective action we believe is appropriate.

Consistent with this, the letter urges furniture companies to “review your product line immediately and ensure that all clothing storage units that you manufacture, import, distribute, or sell in the United States comply with ASTM F2057-17 standard where applicable.”

Finally, the letter emphasizes that Section 15(b) of the CPSA places a duty to report (within 24 hours) on all members of the supply chain if they obtain “information that reasonably supports the conclusion that a product distributed in commerce contains a defect that could create a substantial product hazard or that such product creates an unreasonable risk of serious injury or death.”

Failure to report, or report on time, can lead to criminal penalties, or civil penalties of up to ~$100,000 per violation, capped at ~$15 million for a related series of violation.

CPSC has consistently employed Section 15(b) enforcement as a tool to punish companies and send deterrent messages to the consumer products industry. Section 15(b) failure to report claims are one of the most flexible tools the Commission has to penalize a company in connection with a product. Claims only require a showing that a company obtained information triggering a report and did not report immediately—there is no requirement that a product actually result in an injury.

What should we expect?

CPSC took a similar approach with drawstrings, as mentioned above, but more recently with hoverboards. In February 2016, CPSC issued an open letter to industry designating an industry standard for hoverboards as mandatory. CPSC then sent investigation letters to sellers of hoverboards requesting (demanding) that they either provide information demonstrating compliance with the industry standard or stop selling the products. Then, over the course of 2016 and 2017, CPSC announced more than 20 recalls of hoverboards.

Since CPSC’s letter here states that manufacturers, importers, and retailers “should not” manufacture, import, distribute, or sell non-compliant clothing storage units and urges firms to undertake a product line review, we would not be surprised to see CPSC issue investigation letters to furniture industry participants requesting that they verify compliance with ASTM F2057-17 or stop selling the products, signifying the start of a concerted compliance effort by CPSC.