"Beware Bunk Beds!"
That is the latest paternal alert sounded by the hand-wringing Consumer Product Safety Commission.
Last Wednesday, the CPSC announced an advance notice of proposed rulemaking that envisions the promulgation of bunk bed industry performance standards addressing child entrapments. It was spurred to the ramparts largely by unalarming (albeit individually tragic) data showing approximately one child death per year attributable to bunk bed falls during 1990-1997, and zero fatalities in the last two years, plus 54 entrapment fatalities over the eight-year span.
So you thought the Republican Congress had ushered in an era of deregulation? Think again. The CPSC caper is no rara avis in the regulatory carnival. Pursuant to the Nutrition Labeling and Education Act, the federal Food and Drug Administration recently concluded a six-year struggle over "reference amount" package labeling for hard candies and breath mints, i.e., the amount of a food the agency believes consumers customarily consume at a single meal. That hotly contested issue pivoted on whether breath mint consumers typically devoured two grams of a big-breath mint or were satisfied with 0.05 gram small-mint alternative in attacking malodor.
The FDA ultimately compromised by ordaining a product label serving size of one unit (in addition to actual weight) to placate the wrath of Ferrero USA Inc., the maker of the diminutive Tic Tac breath mint.
But back to the Cassandran regulatory tale of bunk beds.
A children's pandemic of bunk bed mishaps and dirges sung by bereaving parents were not the expected protagonists in the CPSC plot. Indeed, bunk beds seemed to a non-expert parent exceptionally unhazardous and the industry exceptionally responsible.
Two decades ago, an Inter-Industry Bunk Sed Safety Task Force established a voluntary Bunk Bed Safety Guideline for manufacturers and retailers. That safety standard was later embraced by the American National Standards Institute and the American Furniture Manufacturers Association.
In 1988, in response to a complaint from the Consumer Federation of America, AFMA upgraded its safety standard to require two guard rails and a maximum of 3.5 inches for any opening in the structure of the upper bed.
The industry did not sleep on its safety job. Four years later, it raised safety requirements to address falls from the upper bunk, entrapment in the upper bunk structure or between the upper bunk and a wall, the security of the foundation support system, and warning labels. in 1996, additional provisions urged by the CPSC were adopted that answered concerns of entrapment in the lower bunk end structures, mattress size, and information on the warning label and carton.
Industry compliance with its voluntary safety blueprint was generally unworrisome. According to the CPSC, of the 106 bunk bed manufacturers known to its staff and believed to produce the bulk of annual 500,000 unit sales, compliance with the entrapment mandate is currently spotless. The Commission, nevertheless, worried that unknown "small regional manufacturers that periodically enter the marketplace may not be aware of the voluntary standard, or of the hazards that are associated with bunk beds."
The bunk bed industry, of course, is not an altruistic surrogate of Mary Poppins. Tort law that was born centuries before CPSC's birth certificate recognized that platitude.
Thus, regulatory inaction by the commission would not invite the industry to wreak death on hapless infants with Dickensonian callousness. Under prevailing strict liability law in all 50 states, juries are empowered to award stratospheric damages against a manufacturer of an unreasonably unsafe bunk bed that causes a child casualty. No proof of negligence is required. Tort lawyers thus salivate at the opportunity to sue a miscreant bunk bed manufacturer who occasioned the death of a beloved tiny tot.
In other words, the existing legal deterrent to unsafe bunk beds concentrates the minds of manufacturers wonderfully. And the CPSC's own data confirm the obvious. It estimates 7 million to 9 million bunk beds in current use. That translates into approximately 3 billion days of child bunk bed "hazard" annually, or 24 billion during the eight years spanning 1990-1997. According to CPSC Data Files, that interval witnessed 23 child deaths from inadvertent hangings from beds by such items as belts, ropes, clothing, and bedding. Those mortality figures, however, cannot be eliminated without eliminating bunk beds altogether, which even the CPSC resists.
Of the 64 remaining bunk-bed-related deaths, 54 were caused by entrapment, and virtually all of the victims were 3 years old or younger. Eight incidents of death were caused by bunk bed falls.
Prom the child casualty data, the CPSC detected the possibility of insufficient industry safeguards against entrapment, a hazard that in 24 billion bunk-bed-days was implicated in 54 deaths, or 1 in every 444 million daily risks. (Annual entrapment deaths had plunged from 10 to 5 in 1997). The agency thus issued an advanced notice of proposed rulemaking that envisions further protection against bunk bed entrapment by official decree at a cost of from $15-$40 per bed built on an average retail price of $300. With friends like the commission, no enemies can be afforded.
Indeed, if we are not eternally vigilant, the CPSC will next set its eyesight on the risk of waking up in the morning.
Why has Congress left this regulatory dinosaur unslain?
Bruce Fein is a lawyer and free-lance writer specializing in legal issues
Material presented on this home page constitutes opinion of the author.
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