On March 3rd the Consumer Product Safety Commission (the CPSC) conducted a public meeting to address its new proposed mattress fire safety standard (the Proposed Standard) that would specifically address small open flame ignition of mattresses, and mattress and foundation combinations.

As counsel, we want to make sure that you are aware of the proposal and a number of its key implications. Existing federal fire safety regulations address mattress ignition by cigarettes.

The CPSC reports that its fire data indicates, however, that ignition by open flame sources such as lighters, candles and matches are overtaking cigarette ignition as a source of home fires.

As a consequence, the Proposed Standard was first outlined in a CPSC Advanced Notice of Proposed Rulemaking, dated October 11, 2001. When codified, the CPSCs open flame standard will be enforceable under the Flammable Fabrics Act, which gives the CPSC the authority to seek civil penalties of up to $8,000 per violative product, up to a maximum penalty of $1.825 million for any related series of violations. Criminal penalties under the Act, include up to a year of imprisonment and maximum fines of $250,000 for individuals and $500,000 for organizations.

The Proposed Standard imposes requirements in four basic areas: fire testing and quality assurance, the records compilation, and product labeling.

1) Fire Testing. The Proposed Standard requires that mattress manufacturers perform a full-scale test of specimens of their mattress prototype before commercial sale. The test exposes a mattress specimen (or mattress and foundation set) to T-shaped propane burners for 30 minutes. The test methods are identical to those set out by Californias Technical Bulletin 603, the new safety standard imposed in that state. The actual performance requirements, however, are more stringent under the CPSCs Proposed Standard. The peak rate of heat release must not exceed 200 kW at any time during the 30-minute test; the total heat release must not exceed 15 MJ for the first ten minutes of the test.

2) Quality Assurance. Each manufacturer must implement a quality assurance program to ensure that the mattresses/sets it produces are identical with regard to their components, materials, and methods of construction to the test prototype on which they are based. As a consequence, under the Proposed Standard manufacturers must: (a) place controls on components and materials to ensure that they are identical to those used in the prototype; (b) designate production lots for inventory management; and (c) perform inspections on mattresses produced for sale.

3) Records. The Proposed Standard requires manufacturers to maintain records that document compliance. This includes records concerning prototype testing, pooling methods (whereby more than one plant or manufacturing enterprise might rely on a single prototype) and confirmation testing, along with records concerning quality assurance procedures and any associated testing performed on individual production lots. The required records must be maintained for as long as mattresses/sets based on the prototype are in production and must be retained for three years thereafter. The records would have to be made available upon request by CPSC staff.

4) Labeling. Under the Proposed Standard each mattress must bear a permanent label stating: the name and location of the manufacturer, the month and year of manufacture, the model identification, prototype identification number. Each label must also carry a certification that the mattress complies with the new federal mattress safety standard. By placing the certification on the mattress, the manufacturer attests that the specific mattress would comply with the test criteria if tested. The Proposed Standard sets out rules regarding the size of the label, as well as its layout, phrasing and presenting.

After last December's unanimous vote by CPSC Commissioners in favor of the Proposed Standard, CPSC Chairman Hal Stratton indicated that the new standard represents a top priority at the CPSC, and that [this] means we are pretty far down the road toward a final standard. (See attached) Still, the regulations have yet to be finalized. The CPSC will accept comments on the Proposed Rule through March 29, 2005.

On March 3, representatives from different sectors of the mattress manufacturing industry -- including fiber producers and suppliers of flame resistant treatments -- all said they support the CPSC's proposed standard, but recommended that several issues be clarified before adoption of the new rules.

If you have any questions about the Proposed Standard, or are interested in submitting comments, please do not hesitate to contact:

Georgia Ravitz
202.857.8939
ravitz.georgia@arentfox.com