Originally published in the CCH Consumer Product Safety Guide, 2003.
In 1991, a major international manufacturer of full size cribs began producing an all metal tubular crib. Both side rails, the long sides of the crib, and the mattress platform contained 18 spindles with less than 2 3/8 inches between components. The dimensions of the mattress platform and side rails were virtually identical and could be readily interchanged. The crib complied with the Consumer Product Safety Commission (CPSC) regulations and appeared reasonably safe.
In 1994, the company eliminated 8 spindles from the mattress platform, leaving 5 inch spacing between each of 10 remaining spindles. The side rails and the platform, however, remained interchangeable. The issue was raised as to whether the 5 inch spacing in the mattress platform violated the CPSC regulation.
Our analysis begins nearly 20 years earlier.
On November 21, 1973, the Consumer Product Safety Commission published the Requirements for Full Size Baby Cribs at 16 CFR 1508. The regulation bans the introduction into interstate commerce of any crib that, among other things, does not comply with rules setting the maximum spacing of crib components at Section 1508.4, which states in pertinent part
(a) the distance between components (such as slats, spindles, crib rods, and cornerposts) shall not be greater than 6 cm. (2 3/8 inches) at any point.
The regulation clearly states that spacing shall be determined at any point. The standard does not limit either the location or the function of components to be measured. The spacing restriction is intended to protect children from the catastrophic risks of injury associated with entrapment under foreseeable conditions of use. The manufacturer’s position was that the legislative and regulatory history of the standard addressed only the side rails, which clearly met the requirement. When the crib standard was developed, there were no platforms on the market that used slats or spindles to support the mattress.
The crib standard is based on an evaluation required by the Federal Hazardous Substances Act (FHSA) and the CPSC regulations. Under that analysis, the Commission found that any crib with spacing between components more than 2 3/8 inches “presents an unreasonable risk of personal injury or illness,” and ultimately determined such cribs to be a Banned Hazardous Substance as defined at 16 CFR 1500.3(b)(15)(i).
The evaluation of unreasonable risk under the FHSA includes not only a review of normal or intended use, but also requires an analysis of performance when subjected to reasonably foreseeable damage or abuse. The risk associated with greater than 2 3/8 inch spacing is unreasonable when technically feasible and economically practical safety measures can substantially reduce or eliminate the identified injuries to children.
Yet, as described above, in 1994 the company reconfigured the original cribs, replacing the 18 spindle 2 3/8 inch spaced mattress platform with a 10 spindle mattress platform allowing a 5 inch gap between spindles in order to save $1.33 on cribs that sell for over of $100. Nearly 400,000 10 spindle mattress platform cribs were produced. Where the mattress platform is foreseeably misassembled and placed in the position of a side rail, the child’s exposure to catastrophic entrapment injury increases substantially. Even when the crib is correctly assembled with the 10 spindle mattress platform in its intended position, the crib presents an unreasonable risk of injury due to a child compressing the mattress and falling through the spindles.
According to the company’s own records, by November of 1996 they had received at least 25 additional reports of misassembly yet continued to produce the unreasonably dangerous cribs. They did not provide required information to the Consumer Product Safety Commission under the reporting requirements for substantial product hazards as outlined by Section 15 of the Consumer Product Safety Act and regulations at 16 CFR 1115..
Under 16 CFR 1115.12(f), Substantial Product Hazard Reports, safety related changes are cited as one indication that a report to the CPSC is required. Consumer complaints, such as the 30+ calls concerning misassembly received by the company are another. Yet again no evaluation was provided and no report was forthcoming.
Absent a report by the company, in May 1997, the Commission’s regional office in Chicago made a preliminary determination that the full size metal cribs with the 10 spindle mattress platform presented a Substantial Product Hazard. Specifically, the CPSC stated that the mattress platform openings of 5 inches can cause a child to be entrapped when it is assembled as a side rail. The Commission indicated they were aware of five incidents involving crib misassembly, including two where the children were entrapped, and had the report of a Human Factors consultant that the crib instructions were confusing and might lead to misassembly.
On July 9, 1997, a joint company/CPSC press release announced an at home repair for the 390,000 10 spindle mattress platform cribs that “may have been misassembled with the mattress platform used as a side rail.” Commission documents indicate that the staff considered the recall a Class A, meaning that the potential for death or serious injury was likely or very likely. By that time, the CPSC and the company had 47 reports of misassembly, 27 reports of entrapment and 1 death.
On December 1, 1998, an engineering change finally addressed the substantial and unreasonable risk of injury and returned the spindle configuration of the mattress platform back to 18 as originally designed, substantially reducing or eliminating the risk of entrapment to small children. An earlier revision had already taken steps to prevent misassembly. In early 1999, consumers were warned of the danger of the mattress compressing after 12 complaints and the death of an 11 month old falling through the platform.
It is the responsibility of the manufacturer, not the government, to produce a reasonably safe product. When made aware that a product presents a substantial risk of injury to the public, the manufacturer must take steps to inform the public of the danger and remove the product from the hands of consumers. The company’s decision to save $1.33 on a $100 crib by eliminating 8 spindles and creating an unreasonably dangerous space for entrapping children seems to evidence a clear and conscious disregard for the safety of infant children.