Safe Sleep for Babies: What You Need to Know if You Offer Infant Sleep Products

The Safe Sleep for Babies Act of 2021, which went into effect on November 12, 2022, makes it is unlawful to sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States padded crib bumpers and inclined infant sleep products with an incline of 10 degrees or more. However, companies should note that oversight of infant sleep products extends beyond the new regulation.

The Consumer Product Safety Commission (CPSC) passed its own Infant Sleep Rule, which became effective on June 23, 2022. While the Safe Sleep for Babies Act expressly applies to “padded crib bumpers” and “inclined sleep products,” the CPSC rule covers many more products, including non-inclined or flat infant sleep products, such as baby boxes, in-bed sleepers, baby nests and pods, rigid-sided and rigid-framed compact bassinets without a stand or legs, various designs of travel bassinets with soft padded or mesh sides, and baby tents. Under the CPSC rule, these products in their original state are now non-conforming.

Safe infant sleep is one of the consumer product safety issues to which the CPSC is most dedicated. It is also one that is closely scrutinized by industry and advocacy groups in juvenile products circles, who have differing views on the causal connection between a variety of products and the numerous incidents of infant injury or deaths caused by suffocation in sleep products other than cribs. The American Academy of Pediatrics and the CPSC agree that the safest sleep environment for babies is a firm, flat, and bare surface.

There are many infant products marketed to parents to help their newborns sleep. However, the CPSC received multiple reports of infant suffocation deaths and injuries associated with these products, and ultimately determined that the most common factors were an incline of greater than 10 degrees and/or excessive or soft padding. While many of these products were originally subject to voluntary industry standards on labeling and warnings, they fell outside of the CPSC’s mandatory standards. Thus, the CPSC rule was designed to establish a mandatory safety standard for infant products that are marketed or intended to provide a sleeping accommodation for infants.

The practical effect of the CPSC rule is that any product in which a baby might reasonably be expected to fall asleep, inclined or otherwise, currently on the market, or to be developed in the future, must now meet the Safety Standard for Bassinets and Cradles—even if the product is not a crib, play yard, or bedside sleeper. Significantly, the rule indicates that the newly regulated infant sleep products must have legs or a stand, side heights of at least 7.5 inches, and comply with all other requirements in the CPSC standard.

KEY TAKEAWAY

The fundamental takeaway is that the Safe Sleep for Babies Act and the CPSC Infant Sleep Rule prohibit the manufacture, sale, distribution and import of crib bumpers, inclined sleep products, and flat sleep products without a stand and proper side height. To be sure, despite the products’ popularity, soft padded designs like baby nests and in-bed sleepers will not be in conformity with the rule.

A WORD OF CAUTION

While the CPSC rule does not apply to products like bouncer seats, swings, infant chairs, or products for use when the child is awake, simply renaming or relabeling a product for non-sleep use will not likely provide a basis to avoid the rule. The CPSC will evaluate a manufacturer’s intent using all available information to determine whether the product is for sleep—or even napping.

For example, if packaging or marketing materials depict a sleeping child, animal, or cartoon figure, the CPSC will interpret that type of implication as bringing the product within the scope of the rule. The CPSC’s enforcement efforts have already begun, as it recently issued a notice of violation against one manufacturer/importer of infant sleep products.

Watch for more regulation in this area.

If you have questions about whether products you are currently selling are within the scope of the rule, you should seek regulatory guidance on the matter. If you have products in inventory that can no longer be sold, you should seek advice as to whether there is coverage for any loss incurred by the inability to sell the products.