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BedTimes, Flammability, October 2008

CPSC checking retailers for 1633 compliance
Inspectors ask about selling in sets, law labels & more

By Nancy Butler

Recent inspections of mattress retailers by the U.S. Consumer Product Safety Commission serve as a reminder that the CPSC expects retailers, not just manufacturers, to comply with the federal open-flame mattress standard—and that they face risks, including possible fines, if they don’t.

Reports from dealers about CPSC inspections provide useful information, not just for factory directs but for other manufacturers, which can help educate retailers about how their mattresses and foundations are intended to be sold to ensure compliance with 16 CFR Part 1633.

In an inspection of a New Hampshire store owned by a major sleep shop chain, a CPSC inspector arrived unannounced, identified himself and engaged the store manager in a long conversation. The inspector reportedly asked numerous questions, including “Do you sell everything in sets?” He also asked the manager what he knew about the standard, if he knew what information was on the federal law label and in what ways the standard had changed how he sells.

The inspector also asked to see sales tickets and sales orders. According to the store manager, he seemed to be looking for sales of mismatched sets and also focused on sales of mattresses with adjustable bases.

The inspector didn’t buy any sets for flammability testing, but several weeks later, the company’s distribution center was contacted and CPSC inspectors bought two twin sets each of two models, apparently at random. While there, an inspector asked the warehouse manager whether the company always sells in sets. Company officials also were asked if they import mattresses—retailers that import are required to keep the same records as mattress manufacturers.

The experience was somewhat different at a Minnesota furniture store—part of another major chain— where two CPSC inspectors purchased two twin sets from a private-label line, apparently based on the fact that they hadn’t seen the brand name before. They examined labeling, but they didn’t question the retail sales associate at any length.

CPSC inspection experiences may vary widely. In fact, CPSC enforcement staff can visit retailers under cover, without identifying themselves as CPSC officials, with the intent of examining selling practices. Last year, the CPSC announced that it would instruct enforcement staff to attempt to purchase mattresses and foundations that weren’t intended to be sold together.

Follow the label specifications
In cases like the two described, where inspectors purchased mattresses and foundations intended to be sold together, any open-flame test failure would likely be the responsibility of the manufacturer. In neither case is there a reason to believe that these retailers will be found in violation of the open-flame standard. However, the scenario could have been different if the inspectors had found evidence that the stores were engaging in questionable selling practices.

For retailers, the key to managing these risks is for all store personnel to follow the specifications on the federal law label for every mattress sold: Every mattress and ticking-covered foundation sale should be label-driven. The label specifies whether the mattress is intended to be sold with a specific foundation (model numbers are shown), without a foundation, or with or without a foundation. The CPSC has the authority to find that a retailer that sells a mattress without regard to its use as specified on the federal label has violated the standard. Manufacturers can help by educating retailers and sales associates about how they intend their mattresses and foundations to be sold and by helping them become comfortable reading law labels.

Among the clearest risks for retailers is selling a mattress with a foundation not specified on its label— a mismatched set. According to the CPSC, retailers that sell a mattress and foundation off-label will have violated the standard if the mismatched set as sold doesn’t pass open-flame tests.

Documentation may be key
Retailers should understand that CPSC inspectors may ask to examine sales tickets and other sales documents to determine if products were sold off-label. A CPSC Notice of Inspection presented to the Minnesota retailer states: “The purpose of this inspection is to obtain information; to review and obtain copies of items including but not limited to records, reports, books, documents and labeling; and to obtain samples in order to enforce or determine compliance with the Acts administered by the CPSC.”

If it appears that mismatched sets have been sold, the CPSC may ask to see some form of documentation proving that the set would meet the standard. Since it is unlikely that any manufacturer has tested a mismatched set, unless a retailer itself has done testing, such documentation probably will not exist. If the CPSC retrieves a mismatched set from the customer, tests it and it fails the test, it is the retailer that takes all of the responsibility—not the manufacturers—because the retailer ignored the specifications on the manufacturers’ labels.

Retailers also should be aware that the same applies to the sale of a mattress with any upholstered adjustable bed base that the manufacturer doesn’t intend to be used with its mattress. Again, read the labels, which should specify intended use, together with model numbers.

Selling sets is best
An area of confusion among retailers is the meaning of a label specifying that a mattress is intended to be sold “without a foundation” or “with or without a foundation.” This means that the model has passed open-flame tests with no ticking-covered foundation under it (so it can be used with a bunk bed or platform bed, for example). It doesn’t mean that it is intended for sale to a consumer who plans to use it with an old foundation because the combination could fail to meet the standard and therefore not provide the improved safety intended by 1633. In addition, selling a mattress to a consumer who plans to use it with an old foundation might expose a retailer to financial liability if the consumer is later hurt in a fire and sues.

If a customer insists on buying the mattress only, it is probably wise for the retailer to inform the consumer of the potential risk of doing so and to document that disclosure—such as noting that the associate made the disclosure or, if possible, asking the customer to acknowledge the disclosure on the sales order—in case an inspector later asks what information was provided to the customer.

Be prepared
A final piece of advice for retailers—and manufacturers—is to be prepared in case a CPSC inspector pays a visit. All employees should be educated about the standard.
Someone on staff who is familiar with the company’s business practices and records should be designated as the person who will respond to an inspector’s questions. It may be wise to consult with legal counsel or other experts on the CPSC rules to make sure you understand the process.

These preparations should be made before an inspector ever arrives. Providing inaccurate or delayed answers may look like you have something to hide, which could result in the CPSC obtaining a subpoena or taking formal action against your company.  BT

If you import or renovate
Under the federal open-flame standard, importers are responsible for the same recordkeeping requirements as U.S. manufacturers. So, in addition to meeting the requirements discussed in the main article, a retailer that imports mattresses or foundations directly (with no U.S. wholesaler or distributor involved) also is subject to all of the recordkeeping requirements of 16 CFR Part 1633 and can face stiff fines for failure to comply.

Renovators also are subject to manufacturing requirements. A retailer that does any renovating—which means replacing any components, including the cover—must comply with the same prototype testing, quality assurance, labeling, recordkeeping and other requirements as an original manufacturer. A renovator can’t argue that renovated products are exempt because they were originally produced before the standard went into effect on July 1, 2007.