3rd Party Flammability Testing/Certs Needed for Kid's Sleepwear After Feb 17

(The flammability standards for children’s sleepwear date to the early 1970s and are meant to reduce risks of burn injuries and deaths from fires. 16 CFR Part 1615 covers the flammability of children’s sleepwear sizes 0 through 6X, and 16 CFR Part 1616 covers the flammability of children’s sleepwear sizes 7 through 14. Testing children’s sleepwear for compliance with these standards has been required for some time.

Pursuant to the Consumer Product Safety Improvement Act of 2008 (CPSIA), CPSC determined that flammability of children’s sleepwear would require third-party testing by a CPSC-accredited lab and based on this testing, a certification of compliance. (CPSC had stayed these testing and certification requirements since February 2009¹, but effectively lifted the stay for children's sleepwear manufactured after February 17, 2011 with publication of lab accreditation requirements for these products in November 2010.)

Must Use 3rd-Party Labs, Issue Certifications for Mnfrs. After Feb 17

With publication of its third-party lab accreditation requirements for these products in November 2010, CPSC now requires that each manufacturer (includes importer) of children’s sleepwear that is subject to 16 CFR Part 1615 or 1616 and is manufactured after February 17, 2011 have sufficient samples of the sleepwear, or samples that are identical in all material respects, tested for compliance with these flammability regulations. Such testing must be done by a CPSC-accredited third-party lab (which can include governmental or “firewalled” company labs - see below).

Based on this testing, manufacturers (or importers) must issue a certificate of compliance² with 16 CFR parts 1615 or 1616.

Testing Requirements

CPSC provided the following clarifications of the testing requirements specific to the flammability of children’s sleepwear in its November 2010 notice of lab accreditation requirements for such products:

All 3 Steps of Test Must be Done by 3rd-Party, Must Follow Sampling Rules

CPSC explained that the flammability standards for children’s sleepwear have sampling criteria that must be met. They also require testing at three separate stages in the process of developing and producing the sleepwear: (1) fabric testing; (2) prototype testing in which seams and trims are tested; and (3) final production unit testing.

CPSC has decided that in order for third-party testing to serve as the basis for the required certificate, which testifies that a product complies with a standard, it is necessary that the tests be performed as specified in the standards. Therefore third-party labs must perform the three tests as specified in the standards and according to the sampling criteria laid out in them.

(In a November 3, 2010 Commission briefing on the lab accreditation notice, CPSC staff stated their belief that a manufacturer or importer could meet the first prong of the test by using fabric that had already been third-party tested and certified, but the other two test requirements could not be met by buying certified inputs, as they involve testing a prototype and a production unit of the garment. See ITT’s Online Archives or 11/04/10 news, 10110418, for BP summary of the meeting.)

Standards Allow for Other Testing Regimes If Can Prove Equally Stringent

CPSC stated, however, that the children’s sleepwear flammability standards do allow a firm to use another testing regime if the firm has proof that the other test is at least as stringent as the Standards. (In the November 3 briefing, CPSC staff noted that they have only been approached a few times in 40 years on alternative testing regimes, but the option exists.)

Exceptions for 0-9 Month & Tight-Fitting Sleepwear

According to CPSC, two categories of children’s sleepwear are exempt from the children’s sleepwear flammability standards: (i) sleepwear for infants sized nine months or smaller and (ii) tight-fitting sleepwear as defined in 16 CFR 1615.1(o).

As these categories of sleepwear are not subject to the flammability standards, no testing and certification will be required to show compliance with 16 CFR parts 1615 and 1616; nor will any testing or certification be necessary to show that these products meet the standards’ exceptions.

Lab Requirements

The following are highlights of the requirements specific to third-party labs and CPSC accreditation as noted in CPSC’s November 2010 lab accreditation notice:

Labs Must be ILAC-MRA Accredited, Etc.

To be accredited, labs must be ILAC-MRA³ accredited and the accreditation must be registered with and accepted by CPSC. The accreditation must be to ISO Standard ISO/IEC 17025:2005, General Requirements for the Competence of Testing and Calibration Laboratories, and the scope of the accreditation must expressly include testing to the regulations in 16 CFR Parts 1615 and/or 1616.

Firewalled & Government Labs Must Meet Additional Requirements

Firewalled labs (which are owned, managed or controlled by a manufacturer or private labeler) and governmental labs (which are owned or controlled in whole or in part by a government) can also receive CPSC third-party lab accreditation. However, they must meet all the CPSC requirements for third-party accreditation and additional requirements related to impartiality and undue influence.

Limited Acceptance of Prior Testing

In limited circumstances, CPSC will accept a certificate of compliance with 16 CFR Part 1615 and/or Part 1616, based on testing performed by a third-party lab prior to CPSC’s acceptance of its accreditation. These circumstances include that the product was tested on or after November 19, 2009; the lab’s application for accreditation is accepted by CPSC by January 18, 2011; etc. (See lab accreditation notice for complete details.)

Once Accredited for Flammability of Sleepwear, Labs Can Begin Testing

The CPSC maintains an up-to-date listing of labs whose accreditations it has accepted and the scope of each accreditation (i.e, the specific product safety rule for which that lab can test). Once the CPSC adds a lab to that list, the lab may begin testing to support certification.

60 Day Delay Possible If Too Few Labs, But Must Tell CPSC

If CPSC determines that an insufficient number of third-party labs have been accredited to allow for certification for the flammability of children’s sleepwear, it can extend the testing and certification requirements by 60 days.

(At the November 3 meeting discussed above, Commissioner Nord expressed concern about lab capacity for flammability testing, as the testing and certification stay was also just lifted for the flammability of children’s clothing textiles and flammability of children’s mattresses. Staff said that they rely on the trade to communicate such information through emails, phone calls, or formal petitions, and had heard no reports of insufficient lab capacity as of November 3, 2010.)

¹See ITT’s Online Archives or 02/02/09 and 12/29/09 news, 09020205 and 09122920, for BP summaries of CPSC’s stay.

²CPSC has interpreted the certification requirement as affecting domestic manufacturers (in the case of domestic products) and importers (in the case of imported products). (See ITT’s Online Archives or 11/18/08 news, 08111805, for BP summary of a November 2008 CPSC final rule interpreting this requirement.)

³International Laboratory Accreditation Cooperation-Mutual Recognition Arrangement

(See ITT’s Online Archives or 11/19/10 news, 10111908, for detailed BP summary of the November 2010 lab accreditation requirements for the flammability of children’s sleepwear.

See ITT’s Online Archives or 08/18/10 news, 10081814, for BP summary of the August 2010 lab accreditation requirements for the more general standard on the flammability of children’s clothing textiles and for children’s mattresses.)