Comments of Consumers Union to the Consumer Product Safety Commission For an Advance Notice of Proposed Rulemaking Relating to Baby Bath Seats and Rings Under Federal Hazardous Substances Act (66 fed. Reg. 39692)

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Consumer Product Safety Commission
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Comments of Consumers Union to the
Consumer Product Safety Commission
For an
Advance Notice of Proposed Rulemaking Relating to Baby Bath Seats and Rings
Under Federal Hazardous Substances Act
(66 fed. Reg. 39692)

These comments are submitted by Consumers Union(1) (CU), non-profit publisher of Consumer Reports magazine. They are in response to the Consumer Product Safety Commission's (CPSC or Commission) request for comments and information on its advance notice of proposed rulemaking (ANPR), under the Federal Hazardous Substances Act, (FHSA), 15 U.S.C. 1261, et seq., concerning the risks of injury associated with baby bath seats and rings.(2)

Consumers Union strongly urges the Commission to issue a rule declaring baby bath seats and rings to be "banned hazardous substances." We believe all of the other options would fail to address the dangers posed by these products.(3)

Standard for Ban under FHSA

A product is a "hazardous substance" under the FHSA if it is a toy or other article intended for use by children that the Commission determines presents a "mechanical, electrical, or thermal hazard."(4) A product "may be determined to present a mechanical hazard if in normal use, or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness . . . .[or] (9) because of any other aspect of the article's design or manufacture." 15 U.S.C. 1261(s)(9).

Any toy or other article intended for use by children that presents a "mechanical hazard" may be banned under section 3(e) of the FHSA.(5)

Baby Bath Seats and Rings Present a Mechanical Hazard

Consumers Union believes that baby bath seats and rings present an unreasonable risk of injury to infants. There have been 78 reported deaths and 110 non-fatal incidents between January 1983 and May 2001 of children whose caregivers have used these products.(6) As described below, the history of experience with these devices clearly demonstrates, as required under the FHSA, that "[their] design . . . presents an unreasonable risk of personal injury . . . ." In addition, this risk of injury exists ". . .in normal use, or when subjected to reasonably foreseeable damage or abuse." As such, these products are subject to a ban under the FHSA. (7)

Nature of Risk Presented By Product

We believe that using baby bath seats and rings encourages caregivers to leave children alone in the bathtub - a "misuse" of the product. This misuse occurs due to a misunderstanding of the proper use of the products. Parents and caregivers using these products develop a false sense of security because the products appear to be able to hold a child upright, and in place. However, this "misuse" now is well known to the industry, and clearly is foreseeable. In addition, these products pose a hazard even when used in a manner consistent with their purpose as a bath aid - evidence collected by the CPSC reveals three deaths have been reported where a caregiver was present in the bathroom.(8) In addition, 41 non-fatal incidents have been reported with the products while the caregiver was present.(9)

Other aspects of the product design are central to the risk these products pose to infants. These include (1) the incompatibility of the seats with slip-resistant bathtubs;(10) (2) leg openings large enough for an infant to slip through or become entrapped; (3) suction cups that will not adhere to a bathtub surface with soap scum; and (4) the lack of restraints to prevent a child from climbing out of the seat.

Adding to the above concerns is evidence that the seat design encourages caregivers to behave differently than they would if no bath seat or ring were present.(11) These behaviors include leaving the child alone in the bathtub willfully and deliberately, and filling the tub with a higher level of water.(12)

Ban is Warranted Because Other Possible Alternatives are Inadequate

In its ANPR, the CPSC requests comment on how to address the risk presented by baby bath seats and rings. Consumers Union believes that because any measure short of a ban will not be sufficient to address the risks presented by these products, a product ban warranted. The issues and concerns surrounding these products are clear. As stated above, the CPSC has received reports of 78 deaths and 110 non-fatal injuries, between January 1983 and May 2001, of infants whose caregivers had used these products. (13)

Mandatory Standard Inappropriate

Issuance of a mandatory standard is not adequate in this case because these products, as currently designed, are inherently hazardous. As described below, no standard currently exists that addresses the many safety risks associated with bath seats and rings. Until and unless a standard is developed that is proven to reduce the substantial risks involved with the use of these products (possibly through an extensive product redesign), a product ban is warranted.

Voluntary Standard

There is no existing voluntary standard that adequately addresses the many safety risks related to these products. ASTM Standard F1967-99, "Standard Consumer Safety Specification for Infant Bath Seats," has not slowed the rate of deaths related to bath seats and rings.(14) In particular, the standard fails to address concerns relating to the stability of the seats, the leg opening size requirement, the effectiveness of the suction cups, or user-operated restraint of an infant in the seat.(15) The standard also does not remedy safety concerns relating to the operation of the suction cups. In fact, it is entirely possible that no standard may be able to remedy the fact that baby bath seats and rings cannot be used safely in bathtubs that meet the ASTM standard for slip-resistant bathtubs. In addition to the concern over the incompatibility of the products with slip-resistant tubs, these products cannot be used safely in bathtubs that are not sufficiently soap scum-free.

Mandatory Labeling

Experience with current labeling of these products indicates that mandatory labeling of the product will be insufficient to prevent future deaths, or alleviate the need for a product ban. The relevant ASTM Standard F1967-99 for bath seats requires a warning label on the product packaging.(16) However, many infant deaths have occurred despite the display of this warning on the product packaging. Under these circumstances, it is apparent that mandatory labeling will not sufficiently ensure that caregivers will not engage in the misuse of the product - and infants will remain at risk.

For the foregoing reasons, we believe that the Commission should proceed with the promulgation of a rule banning baby bath seats and rings because of the high incidence of drowning deaths associated with the products. We believe that no measure short of a ban will be sufficient to prevent the risks associated with the use - or the foreseeable misuse - of these products by infant caregivers.

Respectfully submitted,

CONSUMERS UNION OF U.S. INC.

Sally Greenberg Janell
Sally Greenberg Janell
(202) 462-6262

Mayo Duncan
Mayo Duncan
(202) 462-6262

Notes:
______________

(1) Consumers Union is a nonprofit membership organization chartered in 1936 under the laws of the State of New York to provide consumers with information, education and counsel about goods, services, health, and personal finance; and to initiate and cooperate with individual and group efforts to maintain and enhance the quality of life for consumers. Consumers Union's income is solely derived from the sale of Consumer Reports, its other publications and from noncommercial contributions, grants and fees. In addition to reports on Consumers Union's own product testing, Consumer Reports with approximately 4.5 million paid circulation, regularly carries articles on health, product safety, marketplace economics and legislative, judicial and regulatory actions which affect consumer welfare. Consumers Union's publications carry no advertising and receive no commercial support.

(2) In its ANPR, the Commission information on the risk of injury associated with the baby bath seats, proposed regulatory alternatives; other possible measures; the submission of existing standard; and/or a statement of intent to develop or modify a voluntary standard. 66 Fed. Reg. at 39692 (August 1, 2001).

(3) Although baby bath rings are not currently sold, we urge the Commission to ban them to prevent any future sales of these products.

(4) 15 U.S.C. 1261(F)(1)(d).

(5) See 15 U.S.C. 1262(e). A "banned hazardous substance" is "any toy, or other article intended for use by children, which is a hazardous substance . . . ." 15 U.S.C. 1261(q)(a).
(6) 66 Fed. Reg. at 39693 (August 1, 2001).
(7) See 15 U.S.C. 1262(e).

(8) 66 Fed. Reg. at 39694 (August 1, 2001). See also "CPSC Nominee Grilled by Former Allies" The Washington Times, 7/26/01, A3, describing Commissioner Mary Sheila Gall as reversing her position and voting to regulate bath seats upon hearing that children had been injured even when parents were present to witness seat malfunctions.

(9) 66 Fed. Reg. at 39693 (August 1, 2001).
ASTM F 462-79, "Standard for Slip-Resistant Bathing Facilities," establishes slip-resistant surface requirements for bathtubs. The standard requires bathtubs and shower basins to have an abraded surface. The suctions designed to keep bath seats and rings in place are not compatible with bathtubs meeting this standard because the suction cups will not adhere to the surface.

(11) 66 Fed. Reg. at 39694-39675, citing findings by Dr. N. Clay Mann, Intermountain Injury Control Center at the University of Utah. Bath seats provide caregivers with a false sense of security, and caregivers are more likely to fill the bathtubs with more water. See also, Felcher, E. Marla It's No Accident How Corporations Sell Dangerous Products, Common Courage Press, 2001, at 41 (citing study by Dr. N. Clay Mann, Intermountain Injury Control Center at the University of Utah).

(12) Id. Dr. Mann studied thirty-two bath seat drownings, and thirty-two drownings where bath seats were not involved. In his study, he found that caregivers were more likely to fill the bathtub with a higher water level, and to willfully leave a child unattended in the tub when a bath seat was used.

(13) 66 Fed. Reg. at 39693 (August 1, 2001).

(14) Felcher, E. Marla It's No Accident How Corporations Sell Dangerous Products, Common Courage Press, 2001, at 40 (citing study by Dr. N. Clay Mann, Intermountain Injury Control Center at the University of Utah).

(15) 66 Fed. Reg. at 39695-39696 (August 1, 2001).

(16) The warning appears as follows: "WARNING "Prevent Drowning. ALWAYS keep baby within arms reach." See 66 Fed, Reg. at 39695 (August 1, 2001).

View Files Sorted By Office: Consumers Union OPI, New York - Washington DC Office
West Coast Regional Office - Southwest Regional Office - Consumer Policy Institute

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