Earlier this week, President Biden signed the Safe Sleep for Babies Act into law. The new statute does two things. First, it bans infant inclined sleepers with an inclined sleep surface greater than ten degrees that are intended for infants up to age one. Second, it bans crib bumpers. When the Act takes effect in November, both products will be considered “banned hazardous products” under Section 8 of the Consumer Product Safety Act.
These infant products have also been the subject of recent rulemaking activity by the U.S. Consumer Product Safety Commission (CPSC). This sets up at least one potential conflict of law. Where the Safe Sleep for Babies Act bans infant inclined sleepers intended for infants up to age one, the CPSC rule affected only sleepers intended for infants up to 5 months old.
CPSC’s June 2, 2021 final rule covered all “infant sleep products” not currently subject to any of CPSC’s mandatory safety standards for infant sleep. The rule defines “infant sleep products” as those marketed or intended to provide sleeping accommodations for infants up to 5 months of age, and includes such products as baby nests and pods, in-bed sleepers, infant hammocks, and flat-sleep products. Infant inclined sleepers are, therefore, a subset of infant sleep products and are covered by this rule as long as they are intended, designed, and marketed for those through 5 months of age (and are not covered by another rule).
However, the Safe Sleep for Babies Act defines an infant inclined sleeper as a product “with an inclined sleep surface greater than ten degrees that is intended, marketed, or designed to provide sleeping accommodations for an infant up to 1 year old.” (emphasis added). Because the statutory ban captures infant inclined sleepers intended, marketed or designed for infants ages 5 months through 1 year, its coverage is broader than that of the CPSC rule as it pertains to these specific products.
So, what does this mean? Our initial take is that the CPSC’s infant sleep final rule could remain intact with an exception to accommodate the statute’s definition of inclined infant sleeper. The practical effect of the statute is that it impliedly repeals the rule’s “infant sleep product” definition as it pertains to infant inclined sleepers – a subset of so-called infant sleep products. In other words, because the rule as it pertains to “infant sleep products” is inconsistent with the statute, the agency’s rule must yield to the act of Congress. The balance of the rule could remain unaffected, as the statutory ban does not address other product covered by the CPSC rule. It is worth noting in this regard that crib bumpers have been the subject of their own rulemaking, which is presumably now mooted by the statute.
Look for the CPSC to address this conflict in the near future and issue guidance to assist industry as the infant sleep rule comes into effect at the end of next month (June 2022) and the statutory ban is effective six months from yesterday (November 2022). Should that occur, we will update our readers.
For further information, please contact:
Matthew Cohen, Crowell & Moring