Products Liability Law Daily New safety standard set for gates and enclosures intended to confine children
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Monday, July 6, 2020

New safety standard set for gates and enclosures intended to confine children

By Georgia D. Koutouzos, J.D.

Each gate and enclosure must comply with all applicable provisions of ASTM F1004–19.

The Consumer Product Safety Commission (CPSC) issued a final rule establishing a safety standard for gates and enclosures that are intended to confine a child, also amending the agency’s existing regulations regarding third-party conformity assessment bodies to include the new standard in the list of notices of requirements (NORs). The new standard requires all gates and enclosures to comply with the applicable provisions of ASTM F1004–9, Standard Consumer Safety Specification for Expansion Gates and Expandable Enclosures, which was approved on June 1, 2019, and takes effect on July 6, 2021 (CPSC Final Rule85 FR 40100, July 6, 2020).

Market description. According to CPSC, approximately 127 firms supply gates and enclosures to the U.S. market, with the majority of suppliers consisting of domestic companies, including those that import gates manufactured elsewhere. There are about 80 very small, home-based domestic gate manufacturers, as well as 37 domestic entities that are considered "small" based on U.S. Small Business Administration (SBA) guidelines. The remaining 10 suppliers that are not small domestic businesses include four large domestic firms and six foreign firms. In 2013, approximately 11.1 million gates/enclosures were in use in U.S. households with children under the age of six, the agency’s 2013 Durable Nursery Product Exposure Survey (DNPES) determined.

Product descriptions. Gates and enclosures vary widely in price, CPSC said, noting that consumers can purchase simple plastic or wooden pressure-mounted gates for as little as $10, while hardware-mounted gates with multiple extensions and gates intended for daycare use can cost as much as $700. Most gates retail for $25 to $200, with retail prices for enclosures and modular products that can operate as an enclosure or a gate ranging from $60 to $550. Fabric gates made by home-based manufacturers typically cost under $50, while custom-made wooden gates by home-based manufacturers can run more than $500 for gates with solid hardwood panels and decorative metal elements. Pressure-mounted gates, particularly hard plastic-molded gates, tend to be the least expensive gates and sometimes are marketed as travel gates. Hardware-mounted gates tend to be slightly more expensive than pressure-mounted gates, although there are many hardware-mounted gates available for less than $40, CPSC indicated.

The least expensive pressure-mounted gates are a popular choice with consumers, but price may not be the predominant criterion for many customers. Out of several hundred models of gates available on the site of one prominent internet retailer in January 2020, the 10 best-selling baby safety gates ranged in price from $12 to $85. On another major big box store website, the top 10 best-selling gates ranged in price from $17 to $100. In both cases, the best-selling gates included hardware-mounted gates and pressure-mounted gates. All the bestselling gates were from suppliers that currently claim both ASTM compliance and Juvenile Products Manufacturers Association (JPMA) certification.

Incidents and fatalities. The proposed rule stated that the Commission was aware of 436 incidents in the Consumer Product Safety Risk Management System (CPSRMS) data, including 108 reported injuries and 19 reported fatalities involving child gates and enclosures, occurring from January 1, 2008 to October 31, 2018. Since that data extraction, CPSC staff identified an additional 42 incidents in the CPSRMS data, occurring from November 1, 2018 to January 7, 2020, and including four reported injuries and three reported fatalities.

Bases for regulation. Section 104(b) of the Consumer Product Safety Improvement Act of 2008 (CPSIA), part of the Danny Keysar Child Product Safety Notification Act, requires CPSC to: (1) examine and assess the effectiveness of voluntary consumer product safety standards for durable infant or toddler products, in consultation with representatives of consumer groups, juvenile product manufacturers, and independent child product engineers and experts; and (2) promulgate consumer product safety standards for durable infant and toddler products. Standards issued under section 104 of the CPSIA are to be "substantially the same as" the applicable voluntary standards or more stringent than the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product.

The term "durable infant or toddler product" is defined in section 104(f)(1) of the CPSIA as "a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years," and the statute specifies 12 categories of products that are included in the definition. Section 104(f)(2)(E) of the CPSIA specifically identifies "gates and other enclosures for confining a child" as a durable infant or toddler product. In addition, CPSC’s regulation requiring product registration cards defines "gates and other enclosures for confining a child" as a durable infant or toddler product subject to the registration card rule.

Proposed rule. As required by section 104(b)(1)(A) of the CPSIA, the agency consulted with manufacturers, retailers, trade organizations, laboratories, consumer advocacy groups, consultants, and the public to develop the new rule, largely through ASTM’s standard development process. Accordingly, a Notice of Proposed Rulemaking (NPR) was issued on July 8, 2019, that proposed to incorporate by reference the voluntary standard developed by ASTM International, ASTM F1004–19, Standard Consumer Safety Specification for Expansion Gates and Expandable Enclosures [see Products Liability Law Daily’s July 9, 2019 analysis]. The proposal also stated that the Commission agreed that a new requirement in ASTM F1004–19 that all gates, including pressure-mounted gates, meet a 30-pound push-out force test at five test locations, will improve children’s safety if the gate is installed correctly.

Subsequent actions. Since publication of the proposal, the CPSC staff has continued to work with the ASTM subcommittee on gates and enclosures on visual side-pressure indicators and a separate warning label, as outlined in the NPR. Although the ASTM standard has not yet been updated, the ASTM subcommittee is moving forward to include a separate warning label (for pressure-mounted gates that rely on the use of wall cups to meet the 30-pound push-out force test), and has started moving forward to include visual side-pressure indicators (for pressure-mounted gates that do not use wall cups to meet the 30-pound push-out force test) to improve correct installation of pressure-mounted gates.

Regulatory requirements. Consequently, the final rule incorporates by reference ASTM F1004–19, with the following additional requirements, depending on the design of a pressure-mounted gate, to further reduce the risk of injury associated with incorrectly installed pressure-mounted gates:

  1. For pressure-mounted gates that include wall cups with the product to meet the 30-pound push-out force test, the gates must include a separate warning label in a conspicuous location on the top rail of the gate regarding correct installation using wall cups; or
  2. For pressure-mounted gates that do not use wall cups to meet the 30-pound push-out force test, the gates must use visual side-pressure indicators to provide consumers feedback as to whether the gate is correctly installed.

Furthermore, under section 14 of the Consumer Product Safety Act (CPSA), the Commission promulgated 16 CFR part 1112 to establish requirements for accreditation of third-party conformity assessment bodies (or testing laboratories) to test for conformity with a children’s product safety rule. The final rule amends the list of notices of requirements (NORs) issued by CPSC in 16 CFR part 1112 to include the safety standard for gates and enclosures.

Effective date. While CPSC generally considers six months to be sufficient time for suppliers of durable infant and toddler products to come into compliance with a new standard under section 104 of the CPSIA, the agency received a comment on the NPR from a trade association asking for a 12-month effective date due to the significant design changes necessary to meet the rule’s two alternative requirements to provide consumers with information or feedback on the correct installation of pressure-mounted gates. Additionally, most of the companies selling gates and enclosures are small businesses that may need more time to redesign and test their gates to address the push-out force requirement, or work with their suppliers to purchase compliant products, the agency said, setting a 12-month effective date for the final rule (i.e., July 6, 2021).

MainStory: TopStory FinalRules ChildrensProductsNews BabyProductsNews

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