CPSC OGC Advisory Opinion No. 310

TO

__

:: .. c.~::· :.;I;..

::J=I==-310

Fl~OOUCT

Memorandum

CARM

v.

"Interior

Furnishing."

Regulatory

solid"

'ior

Fl

Act

the

flammable"

§ 1500.3(c)(6)(v);

30, 1987

requirements

FHSA

"flammable"

§ 1S00.3(c)(6)(vi)

§

Co1I11tission

At the

lS(b)

rules

Commission

31) (d)

-office

the

"flammable

product

CPSA.

a,,d

principl

. .Js

Couns..atl

.s

2 ( e)

ADVISORY

OPINION

-

~-:.-:!: ;-!,:;;:;,,d.

UNITED STATES GOVERNMENT

U.S. CONSUMER

Robert G. Poth, Director,

SAFETY C O M M I S S I O N

WASHINGTON. 0. C. 20207

Through:

David Schmeltzer, AEDCA

April

James

Lacy, General Counse

Stephen Lemberg, Assistant Ge

Allen F. Brauninger, Attorney,

Flammability Requirements Applicable to Products of

The Division of

Management has asked two

questions about flammability requirements applicable to product

of "inter

furnishing," as that term is defined in section

of the

ammable Fabrics Act.

The first question posed by the Division of Regulatory

Management is whether a product which meets the definition of

"interior furnishing" set forth in section 2(e) of the Flammable

Fabrics Act, but which is not subject to any standard of

flammability or labeling requirements issued under the FFA, is

subject to labeling and other requirements of the Federal

Hazardous Substances

for "extremely

hazardous

substances if it meets

definition of "extremely flammable

set forth in 16 C.F.R.

or is subject to

labeling and other

of the

for

hazardous substances if it meets

definition of

solid" in

when tested in accordance with

1500.44.

-­

After consideration of the provisions of the FFA

the

FHSA, the legislative histories of those acts, and

statutory interpretation, the Office of the General

concludes that such a product is not subject to labeling or other

requirements for extremely flammable or flammable hazardous

substances

zardous substances if it meets

definition of

solid" in

when tested in accordance with

1500.44.

-­

After consideration of the provisions of the FFA

the

FHSA, the legislative histories of those acts, and

statutory interpretation, the Office of the General

concludes that such a product is not subject to labeling or other

requirements for extremely flammable or flammable hazardous

substances.

The product may be subject to the reporting

requirements of section

of the Consumer Product Safety Act

and the Commission's

if its flammability results from a

defect which could create a substantial

hazard. The

may issue labeling requirements or a flammability

standard for such a product by a proceeding conducted in

accordance with section 4 of the FFA. Alternatively, in

appropriate cases, the

may transfer regulation of the

risk of injury associated with the product to the Consumer

Product Safety Act by issuing a rule in accordance with

provisions of section

of the

outset, this

observes that no product which

is intended or packaged in a form suitable for household use is

subject to labeling requirements imposed by the Federal Hazardous

Substances Act solely because it meets the definition of

. .

..

--

. .

of

,

"extremely

§ 1500.3

(c)

(6) (v),

to

"extremely

"hazardous

"any

solid,"

§

"flammable

solid"

§ 1500.3(c)(6)(vi)

"it

solid"

"flammable

of the

s:ubstantial

substance"

"

-2-

16

II

...

solid"

2 ( f) l (A)

substance"

solid"

"to

flammable

set forth at

C.F.R.

or the definition of “flammable

set

forth at 16 C.F.R.

when tested in accordance

with 16 C.F.R.

1500.44.

Before the labeling requirements of the FHSA are applicable

such a product,

not only must meet the definition of

flammable

or

solid" in the

regulations cited above, but also must meet the definition of the

term

substance" set forth in section

of the

FHSA.

That section defines the term "hazardous

as

substance or mixture of substances which . . . (v) is

flammable or combustible

00.44.

Before the labeling requirements of the FHSA are applicable

such a product,

not only must meet the definition of

flammable

or

solid" in the

regulations cited above, but also must meet the definition of the

term

substance" set forth in section

of the

FHSA.

That section defines the term "hazardous

as

substance or mixture of substances which . . . (v) is

flammable or combustible . . . if such substance or mixture of

substances may cause substantial personal injury or substantial

illness during or as a proximate result of any customary or

reasonably foreseeable handling or use .

The definitions of "extremely flammable

"flammable

and the method for testing-flammable solids in the

regulations implementing the FHSA measure the ease with which a

solid material will ignite, and the rate of burning after

ignition.

However, in order to determine whether a household product

is a flammable hazardous substance, one must have some

/-­

information about:

.

(1) the likelihood that the product would be exposed to an

ignition source during its reasonably foreseeable handling or

use: and

(2) whether substantial personal injury may result if the

product did ignite and burn during such handling or: use.

Information of this kind may be available from investigations of

fire incidents, consumer complaints, and reports from

manufacturers, distributors, or retailers.

Nevertheless, examination

provisions and legislative

histories of the FHSA and the FFA discloses that a product of

interior furnishing which is not subject to a flammability

standard or labeling regulation issued under the FFA but which

may present a risk of

injury in its customary or

reasonably foreseeable use in the home because of flammability is

not a

hazardous

subject to labeling or

other requirements under the FHSA

ns and legislative

histories of the FHSA and the FFA discloses that a product of

interior furnishing which is not subject to a flammability

standard or labeling regulation issued under the FFA but which

may present a risk of

injury in its customary or

reasonably foreseeable use in the home because of flammability is

not a

hazardous

subject to labeling or

other requirements under the FHSA.

Section 4 of the FFA sets forth the procedure which the

Commission must follow to issue or amend a "flammability standard

or other regulation, including labeling for a fabric, related

material or product which may be necessary

protect the

,

.

accommodation."

2 ( f) l

"interior

furn.ishing."

furnishing"

"product"

"any

one

U .s.- 259,

"CnJ

"plain

language"

substance"

Court's

"[tJhe

756, 95 s.

.

.

_R_ub_i_n

________

s_t_ates, 449

single

United

Trucking

***

may

-3-

public against unreasonable risk of the occurrence of fire

leading to death or personal injury, or significant property

damage." Section 2(h) of the FFA defines the term

to

include any article of

Section 2(e) of

the FFA defines the term "interior

to mean

type

of furnishing made in whole or in part of fabric or related

material and intended for use or which may reasonably be expected‘

to be used, in homes, offices, or other places of assembly or

Section 18(a) of the FHSA provides that

othing in this

Act shall be construed to modify or affect the provisions of the

Flammable Fabrics Act, as amended . . . or any regulations

promulgated thereunder" or the provisions of several other

statutes listed in that section. The language of section 18(a)

of the FHSA states that provisions of the FFA for issuing

standards and labeling requirements to address flammability

hazards of products of interior furnishing remain in effect and

unaltered by any provision of the FHSA.

However, the FHSA contains no provision specifically

omulgated thereunder" or the provisions of several other

statutes listed in that section. The language of section 18(a)

of the FHSA states that provisions of the FFA for issuing

standards and labeling requirements to address flammability

hazards of products of interior furnishing remain in effect and

unaltered by any provision of the FHSA.

However, the FHSA contains no provision specifically

. excluding products of "interior furnishing" as that term is

defined in the FFA from regulation under provisions of the FHSA.

For that reason,

might argue that the

of the definition of flammable "hazardous

in section

(A) of the FHSA could (at least theoretically) encompass an

article which is a product of "interior furnishing" as defined in

section 2(e) of the FFA.

The following portion of the U.S. Supreme

decision

in Watt v. Alaska, 451

101 S. Ct. 1673 (19831) offers

some guidance in the way that a court might approach the issue

under consideration:

We agree with the Secretary that

starting

point in every case involving construction of a

statute is the language itself." Blue Chip Stamps

v. Manor Drug Stores, 421 U.S. 723,

1917, 1935, 44 L. Ed. 2d 539 (1975) (POWELL, J.,

concurring).

See

v. United

U.S., 424, 101 S. Ct. 698, 66 L. Ed 2d 633 (1981).

But ascertainment of the meaning apparent on the

face of a

statute need not end the inquiry.

Train v. Colorado Public Interest Research Group,

426 U.S. 1, 10, 96 S. Ct. 1938, 1942, 48 L. Ed. 2d

Assns., Inc., 310 U.S. 534, 543-544, 60 S Ct.

1059, 1063-1064, 84 L. Ed. 1345 (1940).

The

circumstances of the enactment of particular

legislation

persuade a court that Congress did

Ct.

434 (1976);

States v. American

meaning apparent on the

face of a

statute need not end the inquiry.

Train v. Colorado Public Interest Research Group,

426 U.S. 1, 10, 96 S. Ct. 1938, 1942, 48 L. Ed. 2d

Assns., Inc., 310 U.S. 534, 543-544, 60 S Ct.

1059, 1063-1064, 84 L. Ed. 1345 (1940).

The

circumstances of the enactment of particular

legislation

persuade a court that Congress did

Ct.

434 (1976);

States v. American

,,~-

6'

' ·.,

'\ "

v.

U.S.

furnishj,Jig

to

***·

.especially

•. - . ·---····- _...:;:(:;:l;:;:9

:;:7

4::;.,=-_:=::an-:::·

-:;-d"""'.S;:;-:l.r;,

l;;,kw=:-=o~od

104

4-17-u.s-.

sJs-,-·9-4

s. ct.

2474

"

U.S.A.

1984),

(19SSY:-

1984)]

-4-

464

F.2d

86-613;

not intend words of common meaning to have their

literal effect.

Church of the Holy Trinity

v. United States,

States

143 U.S. 457, 284 459, 36 L.

226

(1892); United

Ryan,

175

52 S. Ct. 65, 68, 76

167,

L. Ed. 224 (1931).

451 U.S. 265-266, 101 S. Ct. 1677-1678

Additionally, judicial authority exists for considering not

only the legislative history of the FHSA, but also that of the

FFA to resolve the issue of whether products of interior

are subject

the FHSA.

Ordinarily, courts seeking to determine implicit

legislative intent confine themselves to the

language and legislative history of the statute in

question

Authority exists, however, for

looking at the entire federal statutory scheme

relative to a particular subject matter,

when that subject matter is dealt with

under a number of separate enactments, some of

which were enacted contemporaneously

[citing

Morton v. Mancari

v. Kerr-McGee Corp.,

U.S.

238,

S. Ct. 615

Particularly where two federal statutes have

overlapping areas of regulation

it is

permissible and helpful to examine the history and

context under which they were enacted.

Chevron

v. Hammond, 726

483, 491

(9th Cir.

cert. denied,

U.S.

, 105

S. Ct

f separate enactments, some of

which were enacted contemporaneously

[citing

Morton v. Mancari

v. Kerr-McGee Corp.,

U.S.

238,

S. Ct. 615

Particularly where two federal statutes have

overlapping areas of regulation

it is

permissible and helpful to examine the history and

context under which they were enacted.

Chevron

v. Hammond, 726

483, 491

(9th Cir.

cert. denied,

U.S.

, 105

S. Ct. 2686

As enacted in 1953, and amended in 1954, the Flammable

Fabrics Act applied only to articles of wearing apparel and to

fabrics, film, and similar materials sold or intended for use in

wearing apparel.

The original Flammable Fabrics Act established

a mandatory flammability standard for the products subject to its

coverage.

See section 3 of Public Law 83-88; 67 Stat. 111,

June 30, 1953; as amended by Public Law 83-629; 68 Stat. 770,

August 23, 1954.

As enacted in 1960, the Federal Hazardous Substances

Labeling Act established labeling requirements for packages of

hazardous substances in containers intended or suitable for

household use. See sections 2(p) and 4 of Public Law

Stat. 372, July 12, 1960. The original act also authorized the

Secretary of Health, Education and Welfare to make modifications

of and exemptions from the statutory labeling requirements in

appropriate cases,

74

"makes

the

1960

congress,"

"extremely

1283

.Section 2(1)

"extremely

14

1Eor

S.REP.

"flammable, "

1193),

2 (.l)

.the

Cong.,

2 ( 1)

-5-

The principal purpose of the 1960 labeling act was to

broaden the range of household chemical products subject to

cautionary labeling requirements beyond the twelve chemical

substances covered by the Federal Caustic Poison Act.

H.R. REP.

NO. 1861, 86th Cong., 2d Sess. 3 (1960);

NO. 1158, 86th

Cong., 2d Sess. 2-3 (1960).

Section 18 of

labeling act repealed the Federal

Caustic Poison Act. The language of present section 18(a) of the

FHSA has its origins

section 17 of the 1960 labeling act.

According to the House of Representatives Committee report

on S

chemical

substances covered by the Federal Caustic Poison Act.

H.R. REP.

NO. 1861, 86th Cong., 2d Sess. 3 (1960);

NO. 1158, 86th

Cong., 2d Sess. 2-3 (1960).

Section 18 of

labeling act repealed the Federal

Caustic Poison Act. The language of present section 18(a) of the

FHSA has its origins

section 17 of the 1960 labeling act.

According to the House of Representatives Committee report

on S. 1283, the bill which led to the 1960 labeling act, section

17

explicit the legislative intent not to modify other

acts of

except- for the repeal of the Federal Caustic

Poison Act.

H.R. REP.

1861, 86th Cong., 2d Sess. 12 (1960).

As originally introduced, S. 1283 defined the terms

"flammable" and

flammable" with reference to flash

point temperature as determined by the Tagliabue Open Cup Tester.

The original bill did not include the Flammable Fabrics Act in

its listing of other acts not affected by its provisions, which

appeared in section 14 of that bill.

A comment on S.

from the Federal Trade Commission

contained the following language:

of the bill contains definitions of

flammable" and

which are

applicable to liquids.

Section 4(a) of the

Flammable Fabrics Act (15 U.S.C. Sec.

which

the Commission administers, contains a standard of

flammability

fabrics and articles of wearing

apparel.

Although the Flammable Fabrics Act

standard of flammability and the definitions

contained in section

of the bill do not apply

to the same subject matter, in order to avoid any

possibility 0% confusion, you may wish to include

a reference to the Flammable Fabrics Act in the

section

listing of laws not affected by

bill.

S. Rep. No. 1158, 86th

2d Sess. 19

ics and articles of wearing

apparel.

Although the Flammable Fabrics Act

standard of flammability and the definitions

contained in section

of the bill do not apply

to the same subject matter, in order to avoid any

possibility 0% confusion, you may wish to include

a reference to the Flammable Fabrics Act in the

section

listing of laws not affected by

bill.

S. Rep. No. 1158, 86th

2d Sess. 19

(1960)

The change recommended by this comment was included in the

bill ultimately enacted as the Federal Hazardous Substances

Labeling Act.

The provisions of section

of S. 1283, as originally

introduced, were also the subject of a comment from the

.

"flammable

solid."

l96l),

provisions

- 11flammable

7333;

authorized

-6-

"to

St. !h

Tester."

2 (l)

substance"

proposal

Elman

Department of Health, Education and Welfare.

That agency

recommended the addition of provisions to allow the Secretary

determine the flammability of solids,

as pastes, by

equipment more suitable than the Tagliabue Open Cup

S. REP. NO. 1158, 86th Cong., 2d Sess. 26 (1960).

This comment from the Department of Health, Education and

Welfare contains the only explanation in the legislative history

of the 1960 labeling act of the types of products which were

contemplated by the

of section

relating to

extremely flammable and flammable solids.

The portions of the text and legislative history of the

Federal Hazardous Substances Labeling Act discussed above

demonstrate that the term

hazardous

as used

in labeling act of 1960 was not intended to apply to any product

-­

subject to the Flammable Fabrics Act as it existed at that time.

In 1961, the Food and Drug Administration issued

regulations to define the terms "extremely flammable solid" and

Neither the notice of

(26 F.R. 3705;

April 29,

nor the! notice issuing the regulations on a

final basis (26 F.R.

August 12, 1961) gives any explanation

or examples of the types of products intended to be covered by

the regulations

ammable Fabrics Act as it existed at that time.

In 1961, the Food and Drug Administration issued

regulations to define the terms "extremely flammable solid" and

Neither the notice of

(26 F.R. 3705;

April 29,

nor the! notice issuing the regulations on a

final basis (26 F.R.

August 12, 1961) gives any explanation

or examples of the types of products intended to be covered by

the regulations.

In 1966, Congress extensively amended the 1960 hazardous

substances labeling act. Among the changes made by the 1966

amendments was the addition of provisions to make the labeling -­

requirements imposed by the FHSA applicable to any unpackaged

household product which is or contains a hazardous substance.

The 1966 amendments also

the Secretary of Health,

Education and Welfare to issue regulations to ban from interstate

commerce any household product which is or contains a hazardous

substance if the Secretary finds that requirements for cautionary

labeling would not adequately protect the public. See sections

2(f) and 3 of Public Law 89-756; 80 Stat. 1303, Nov. 3, 1966.

.

In comments on S. 3298, one of the bills which resulted in

the 1966 amendments of the FHSA, the Department of Health,

Education and Welfare cited an extremely volatile compound used

to waterproof basements as an example of the type of flammable

hazardous substance for which no labeling requirements would be

adequate to protect the public safety.

See H.R. REP. NO. 2166,

89th Cong., 2d Sess. 2 (1966); S. REP. NO. 1551, 89th Cong., 2d

Sess. 16 (1966).

The Federal Trade Commission also commented on S. 3298, and

expressed support for its objectives and purposes.

However, in a

concurring statement, Commissioner

expressed concern about

limitations on the coverage of the bill and made the following

observations:

otect the public safety.

See H.R. REP. NO. 2166,

89th Cong., 2d Sess. 2 (1966); S. REP. NO. 1551, 89th Cong., 2d

Sess. 16 (1966).

The Federal Trade Commission also commented on S. 3298, and

expressed support for its objectives and purposes.

However, in a

concurring statement, Commissioner

expressed concern about

limitations on the coverage of the bill and made the following

observations:

interest,

-

has

.apply

"fabrics"

"the

"

1~1,5,

Elman•s

90-189;

-7-

While I concur in the Commission's endorsement

of this bill, I believe that broader and more

comprehensive legislation dealing with the subject

matter is necessary. The bill concerns a specific

problem affecting the public safety. While its

enactment would undoubtedly be in the public

I am concerned by the large- gaps of

coverage in the field o:f safety legislation in

general. ,

An example of such a gap in existing legislation

is provided by the Flammable Fabrics Act.

In its

present form, the Flammable Fabrics Act applies

only to articles of wearing apparel.

The

Commission

recommended that the coverage of

the act be expanded to include blankets.

But if

blankets are to be included, why not all bed

linen? Should not the act

to all home

furnishings that may be dangerously flammable?

What about upholstered furniture, carpets,

curtains, draperies and other household articles

containing

that may be ignited?

The obvious result of the patchwork nature of

existing safety legislation is that the public is

amply protected in some areas, but wholly

unprotected in others.

Many people may rely on

Government for adequate protection when, in

fact, existing legislation affords no such

protection.

S. REP. NO.

89th Cong., 2d Sess. 8

, draperies and other household articles

containing

that may be ignited?

The obvious result of the patchwork nature of

existing safety legislation is that the public is

amply protected in some areas, but wholly

unprotected in others.

Many people may rely on

Government for adequate protection when, in

fact, existing legislation affords no such

protection.

S. REP. NO.

89th Cong., 2d Sess. 8

(1966).

No change was made to S. 3298 to address the problem which

was the subject of Commissioner

concern: neither the

Flammable Fabrics Act nor the bill under consideration contained

provisions to address flammability hazards which may be presented

by products made of fabric such as upholstered furniture,

carpets, curtains, or draperies.

In 1967, Congress amended the Flammable Fabrics Act to

extend its coverage to include products of interior furnishing

made of fabric and related materials. The 1967 amendments also

authorized the Secretary of Commerce to issue flammability

standards and labeling rules needed to address flammability

hazards presented by products of wearing apparel and interior

furnishing made of fabric and related materials. See sections 1

and 3 of Public Law

81 Stat. 568, December 14, 1967.

also

~dequately

testifying

"the

-·

Amendments

1967::

Phillip

law."

Id.

prov~sions

furnishing"

a:s_that

Busic

1753

15,

489-490,

2(f)l(A)

fabrics

"any

part

homes,

-a-

As noted above, in 1966 Congress had amended the FHSA to

extend the labeling requirements of the FHSA to include, among

other things, unpackaged household products containing or

consisting of a flammable hazardous substance. The 1966

amendments of the FHSA

authorized the Secretary of HEW to

ban any household product containing or consisting of a flammable

hazardous substance if labeling requirements could not

protect the public.

Nevertheless, in 1967, J. Herbert Hollomon, Acting Under

Secretary of Commerce,

in support of S

npackaged household products containing or

consisting of a flammable hazardous substance. The 1966

amendments of the FHSA

authorized the Secretary of HEW to

ban any household product containing or consisting of a flammable

hazardous substance if labeling requirements could not

protect the public.

Nevertheless, in 1967, J. Herbert Hollomon, Acting Under

Secretary of Commerce,

in support of S. 1003, one of

the bills which led to the amendments of the FFA stated that

public does not have legal protection for such things as

blankets, bedding, drapes, carpets, upholstery, and other

products and materials even when thev are unreasonably

flammable."

Flammable 'Fabrics Act

of

Hearings

on S. 1003 Before the Consumer Subcomm. of the Comm. on Commerce,

United States Senate, 90th Cong., 1st Sess. 10 (1967) (Statement

of Mr. Holloway).

Dr.

R. Lee, Assistant Secretary for Health and

Scientific Affairs, Department of HEW, also testified in favor of

s. 1003.

In his testimony he stated "Acting Under Secretary

Holloman has described the major problems in the existing

25 (Statement of Dr. Lee).

In addition to reviewing the relevant

of the

FHSA and the FFA and their legislative histories to determine

whether Congress intended the FHSA to apply to products of

"interior

term is used in the FFA, this

office has also considered the principle of statutory

interpretation that when two statutes are concerned with the same

subject matter, the one with the more specific provisions takes

precedence.

This principle has been stated in many judicial

decisions including

v. United States, 446 U.S. 398, 406,

100 S. Ct. 1747,

the FHSA to apply to products of

"interior

term is used in the FFA, this

office has also considered the principle of statutory

interpretation that when two statutes are concerned with the same

subject matter, the one with the more specific provisions takes

precedence.

This principle has been stated in many judicial

decisions including

v. United States, 446 U.S. 398, 406,

100 S. Ct. 1747,

(1980); Simpson v. United States, 435 U.S.

6,

98 S. Ct. 909, 914 (1978): and Preiser v. Rodriquez, 411

U.S. 475,

93 S. Ct. 1827, 1836 (1973).

-­

Provisions of section

of the FHSA addressing

flammability hazards of household products are applicable to both

packaged and unpackaged articles in a liquid, semi-solid, or

solid state, made from a wide variety of materials.

Provisions

of the flammable

act which address flammability hazards

of non-apparel products are limited by section 2(e) of the FFA to

type of furnishing made in whole or in

of fabric or

related material and intended for use or which may reasonably be

expected to be used in

offices, or other places of

assembly or accommodation."

FFA

prescribes

compelling

222

NLRB

United ·States-,

-tJ-7·

of

developm,ent

-9-

furnishing"

FHSA

County,

s.

Although the definition of the term "interior

in section 2(e) of the

does include some products which are

intended for use in offices and other non-residential buildings,

the scope of the FFA is more specific with regard to the types of

products subject to regulation as interior furnishing than is the

FHSA with regard to the types of products subject to regulation

as flammable hazardous substances.

M o r e o v e r , section 4 of the FFA addresses the single hazard

of flammability and

a single procedure for issuing

•

standards or labeling rules needed to address that hazard. The

FHSA addresses various hazards, including flammability and sets

forth several procedures for issuance of rules to address the

hazards which are subject to its coverage

ulation

as flammable hazardous substances.

M o r e o v e r , section 4 of the FFA addresses the single hazard

of flammability and

a single procedure for issuing

•

standards or labeling rules needed to address that hazard. The

FHSA addresses various hazards, including flammability and sets

forth several procedures for issuance of rules to address the

hazards which are subject to its coverage.

Additionally, provisions of the FHSA impose some labeling

requirements for household products and ban certain toys and

children's articles without the necessity for issuance of any

rule.

Thus, the FFA is the more specific of the two statutes and

takes precedence over the more general provisions of the

to

address any flammability hazards which may be presented by

products of interior furnishing.

Finally, another well-established principle of statutory

interpretation is that courts will follow the interpretation of a

statute applied by the agency responsible for its interpretation

.

unless there are

indications that the agency's

interpretation is wrong. See

v. Hendricks

454 U.S.

170, 177, 102 S. Ct. 216,

(1981).

A long-standing and

consistent interpretation

statute by the agency charged with

its administration is entitled to "considerable weight? Zenith

Radio Corp. v.

U.S. 443, 450, 98

Ct. 2445

(1978).

This office observes that under provisions of the FFA, the

Department of Commerce issued flammability standards for carpets

and rugs in 1970, and a flammability standard for mattresses in

1972.

(The mattress standard was amended by the Consumer Product

Safety Commission under provisions of the FFA in 1973 and in

1984.)

The Department

Commerce also began a proceeding under

the FFA to develop a flammability standard for blankets in 1970

(terminated by the Commission in 1979); and initiated a

proceeding for

of a flammability standard for

upholstered furniture (suspended by the Commission in 1981)

tandard was amended by the Consumer Product

Safety Commission under provisions of the FFA in 1973 and in

1984.)

The Department

Commerce also began a proceeding under

the FFA to develop a flammability standard for blankets in 1970

(terminated by the Commission in 1979); and initiated a

proceeding for

of a flammability standard for

upholstered furniture (suspended by the Commission in 1981).

The files maintained by the Division of Regulatory

Management include a letter dated March 10, 1967, in which a

member of the staff of the Food and Drug Administration expressed

,t"-~.

·l ;

"We

FHSA

~o

that" a

FHSA.

FFA's

also

flammable ....

"

FHSA

FFA.

FHSA

the FFA

to·

FHSA

and

furnishing"

the view that "dangerously flammable blankets and flammable

drapes would be subject to the Act [the FHSA]. That letter

states:

have not, as yet, taken regulatory action against

blankets which are

A memorandum dated July 31,

1967, places the issue of regulating flammability of blankets

under the

in permanent abeyance in view of proposed

amendments

the FFA then under consideration by Congress.

This office is not aware of any regulatory action taken by

the FDA under provisions of the

to address flammability

hazards presented by any product meeting the definition of

interior furnishing in section 2(e) of the

After the Commission assumed responsibility for

administration of the FFR and the FHSA, the Office of the General

Counsel responded to a firm which had asked if rubberized flannel

-­

sheets were subject to any standard issued under the FFA. In

Advisory Opinion 215, issued on July 18, 1975, this office

responded that the item under consideration is a product of

"interior furnishing" subject to the Commission's jurisdiction .

under the FFA, but that no flammability standard issued under

that act applied to that product

nded to a firm which had asked if rubberized flannel

-­

sheets were subject to any standard issued under the FFA. In

Advisory Opinion 215, issued on July 18, 1975, this office

responded that the item under consideration is a product of

"interior furnishing" subject to the Commission's jurisdiction .

under the FFA, but that no flammability standard issued under

that act applied to that product. Advisory Opinion 215 also

notes that the product in question is also subject to the

Commission's jurisdiction as a "consumer product/* but do-es-no-----­

discuss the possibility that the product might also be subject to

regulation under the

as a flammable hazardous substance. A

copy of Advisory Opinion 215 is attached.

The Commission has -not issued any advisory opinion to the

effect

product which meets the definition of interior

furnishing in section 2(e) of

but which is not subject

a flammability standard issued under that act is subject to

labeling. or other requirements of the FHSA to address the

flammability of such a product. Additionally, the Commission has

taken no regulatory action to address any flammability hazard

which may be associated with such a product under provisions of

the

Thus the Commission and the agencies previously responsible

for administration of the FFA and the

have consistently

regulated flammability hazards presented by articles which are

products of "interior furnishing," as that term is defined in

section 2(e) of the FFA, under provisions of the FFA

not

under the FHSA.

The second question from the Division of Regulatory

Management concerns the range of items which are subject to the

coverage as products of interior furnishing.

Specifically,

that division has asked if the term "interior

includes decorative items such as textile-wall hangings and

Christmas tree ornaments made of fabric or related material.

-lo­

r provisions of the FFA

not

under the FHSA.

The second question from the Division of Regulatory

Management concerns the range of items which are subject to the

coverage as products of interior furnishing.

Specifically,

that division has asked if the term "interior

includes decorative items such as textile-wall hangings and

Christmas tree ornaments made of fabric or related material.

-lo­

furnishing"

furnishing"

"interior

"furnishings":

"l.

&

·includes

furnishing"

"any.

related

"any type

"to

accommod.ation."

etc."

Publishing

part

applying

accommodation."

meaning of a statute

"homes,

"furnishing"

House,

-11-

Additionally, that division asks if the term "interior

furnishing" includes children's articles such as baby blankets

and juvenile furniture made in whole or in

from fabric or

related material.

After consideration of the text of the FFA and its

legislative history, this office concludes that the term

"interior furnishing"

decorative items such as textile

wall hangings and Christmas tree ornaments made of fabric or

related material.

Additionally, precedent exists for

the term "interior

to some children's products made

from fabric or related material and intended for indoor use.

Section 2(e) of the FFA states that the term "interior

includes

type of furnishing made in whole or in

part of fabric or

material" for use in "homes, offices,

and other places of assembly or

As stated in the 'response to the first question, the

starting point of any inquiry into the

is

the language of the statute.

Although the language of section

2(e) of the FFA is somewhat circular in that it defines "interior

as

of furnishing," it does limit the term

furnishing

articles which have some component

consisting of fabric or related material and which are intended

for use or could be used inside

offices, or other places

of assembly or

As a general rule, courts will give the words in a statute .

their common and ordinary meanings

ction

2(e) of the FFA is somewhat circular in that it defines "interior

as

of furnishing," it does limit the term

furnishing

articles which have some component

consisting of fabric or related material and which are intended

for use or could be used inside

offices, or other places

of assembly or

As a general rule, courts will give the words in a statute .

their common and ordinary meanings.

Several dictionaries define

the term "furnishing." Set forth below are representative

entries from several dictionaries for the term

or

-­

the furniture and fixtures for a room,

apartment,

Webster's New World Dictionary

of the American Language, College Edition. The

World

Company, 1968.

"2.

fittings, appliances, articles of

furniture, etc., for a house or room." The

American College Dictionary. Random

1970.

"3 .

an article of furniture for the interior of a

building." Webster's Third New International

Dictionary of the English Language Unabridged.

G.

G. Merrian Company, 1966.

While all of these definitions state that the term

"furnishing" includes furniture and articles of a similar nature

used indoors, they do not resolve the specific question of

whether that term includes either a textile wall hanging or a

Christmas tree ornament.

S.REP.

40?,

II

excerpts

include-·-

anci

s ..

the.first

found--

Subcomm.

Magnuson's

"ornaments"

-12-

As noted in the response to

question, section

2(e) was added to the FFA in 1967 when Congress amended that act'

to expand its coverage.

The legislative history of the 1967 amendments contains

some insight about the types of products intended to be covered

by the term "interior furnishing."

The report of the Senate Committee on Commerce concerning

S. 1003 makes the following statement about the need for the

amendments of the FFA then under consideration:

(I) The present law covers only certain articles

of wearing apparel and fabrics from which they are

made

967 amendments contains

some insight about the types of products intended to be covered

by the term "interior furnishing."

The report of the Senate Committee on Commerce concerning

S. 1003 makes the following statement about the need for the

amendments of the FFA then under consideration:

(I) The present law covers only certain articles

of wearing apparel and fabrics from which they are

made. This means that the public does not have

legal protection for such items as blankets,

bedding, drapes, carpets, upholstery, and other

products and materials even if it were determined

that they are unreasonably flammable.

NO.

90th Cong., 1st Sess. 2 (1967)

Additionally, Senator Magnuson made the following

observations in his opening statement at the beginning of

hearings on S. 1003:

The proposed legislation would give the

Secretary, if he first makes a separate

determination of specific need, the authority to

issue and amend flammability standards for

interior furnishings, whether used in homes,

offices, or places of assembly.

Such furnishings

would

if-specific need were

upholstered furniture, draperies, ornaments,

bedding (including bed clothes) rugs and

carpeting,

so forth, and the fabrics and

related materials (including paper, plastic,

rubber, synthetic films or foams) from which they

are made.

Flammable Fabrics Act Amendments of 1967:

Hearings on

1003 Before the Consumer

of the Comm. on Commerce, United States Senate,

90th Cong. 1st Sess. 8-9 (1967) (Statement of

Sen., Magnuson).

In addition to Senator

inclusion of

in the types of products encompassed by the term "interior

furnishing, this office observes that other items mentioned in

the

from his statement and the committee report quoted

above, such as bedding and drapes,, serve a decorative as well as

a utilitarian function.

ce, United States Senate,

90th Cong. 1st Sess. 8-9 (1967) (Statement of

Sen., Magnuson).

In addition to Senator

inclusion of

in the types of products encompassed by the term "interior

furnishing, this office observes that other items mentioned in

the

from his statement and the committee report quoted

above, such as bedding and drapes,, serve a decorative as well as

a utilitarian function.

fabric

fall

"interior

II

furnishing"

by

•

II

"crib

mattJ~esses.

F.2d

1973),

response

"rubberized

-13-

For these reasons,, this office concludes that decorative

textile wall hangings and Christmas tree ornaments made of

or related material

within the definition of

furnishing set forth in section 2(e) of the FFA.

Finally, with regard to the applicability of the term

"interior

to children's articles, this office

observes that the mattress flammability standard, as issued

the Department of Commerce in 1972, included within the scope of

its coverage

In Bunny Bear, Inc. v. Peterson,

473

1002 (1st Cir.

a U.S. Court of Appeals upheld the

decision of the Secretary of Commerce not to exempt crib

mattresses from the provisions of the mattress standard.

.

As noted in

to the first question, in 1975 this

office issued Advisory Opinion 215, which states that

flannel sheeting used to protect bedding against infants who wet

their beds" is subject to the Commission's jurisdiction under

provisions of the FFA

product of interior furnishing.

Thus, in appropriate cases, children's articles made of

fabric or related material and intended for indoor use may be

regulated by the Commission as products of interior furnishing.

Attachment

, which states that

flannel sheeting used to protect bedding against infants who wet

their beds" is subject to the Commission's jurisdiction under

provisions of the FFA

product of interior furnishing.

Thus, in appropriate cases, children's articles made of

fabric or related material and intended for indoor use may be

regulated by the Commission as products of interior furnishing.

Attachment

for

U.S. CONSUMER

P~O□UCT

WASHINGTON.

JUlllm!

Atherton

Brecher:

opinion

the

standards

(15

s~.)

The Commission'

s - ~.:heei.4~-i--

is an

_ e..umi~bi.i;v'f" /J-' u .s .c. 1191

Flammable

your

rubberized

:his office

if the

Bureau of Complian,ce

th

. er

required

.

,

sued

l

iety

'1tmlability

15095, J

er

ng

protect

eds,

i.on 3 (a) dJ-iiJ:Cssion

section

15

ADVISORY

OFtNf

ON

S A F E T Y C O M M I S S I O N

0 . C . 2 0 2 0 7

Mr. Gerald I. Brecher

Friedman and

Nineteenth Floor

28 State Street

Boston, Massachusetts 02109

Dear Mr.

This is in response to your June 2, 1975 request

an advisory

as to whether any

under

Flammable Fabrics Act

U.S.C. 1191 et

are applicable, to the rubberized flannel sheeting

product described in your letter.

jurisdiction under

Fabrics Act includes

-----

flannel sheetina

-- because

it

"interior

Tell-

However

it is the opinion of t

and a

.

Commission's

that nei

the

Fabrics Act Standard for the Fla

of

Mattresses

4-72, as amended 38 FR

'une 8,

.

1973) nor any other standard is

und

that Act is

applicable to rubberized flanne sheeti

used to

bedding against infants who wet theirb

as you have

described.

as a "consumer product" (see sectia

Please note, however, that this product is also

subject to the Consumer Product Saf

Act (copy enclosed)

As such

client is

to report to the

flannel sheeting "contains a defect whichif its

could create a substantial product hazard" (see

and clarifying regulations on this subject, also enclosed).

bedding against infants who wet theirb

as you have

described.

as a "consumer product" (see sectia

Please note, however, that this product is also

subject to the Consumer Product Saf

Act (copy enclosed)

As such

client is

to report to the

flannel sheeting "contains a defect whichif its

could create a substantial product hazard" (see

and clarifying regulations on this subject, also enclosed).

While the views expressed in this letter are based

on the most cur-rent interpretation of the law by this

office,

they could subsequently be changed or superseded

by the

or its staff.

Sincerely,

Michael A. Brown

General Counsel

.

Enclosures

-2-

Commissio~

I

GIB/sas

F'B-1:~:o~~~

,~ ..;-~T:EIE:?.T-ON

c:oL~E~~a

1~

.i....1i.,-a,

:r.J:nl'TS:&.~

~31

~e.~3~B2l7 ~

02a9'9

1975

Safety

common:lY

to

RUl:icer

flannel

I

formal

t."l.e

advisory

require

me.

my

June 2,

Michael Brown, Esquire

General Counsel

Consumer Products

Commission

Washington, DC 20207

Dear Mr. Brown:

This office represents Plymouth Rubber Company of Canton,

Massachusetts.

Plymouth Rubber manufactures, among other

products, rubberized flannel sheeting. This product consists

of a thin flannel sheet bonded to a sheet of rubber. The pur­

pose of the product is to protect bedding against infants who

wet their beds. It is

used either over or under the

bottom bed sheet

protect the bedding.

Plymouth

has had inquiries from purchaser/of

rubberized flannel sheeting concerning the applicability of

--.

federal flammable fabric: standards to this product. It is

understanding, from conversations that

had with Consumer

Products Safety officers in-Boston, that federal flammable fabric

standards do not apply to rubberized

sheeting. On behalf

of Plymouth Rubber Company,

am requesting a

advisory

opinion from the Consumes Products Safety Commission to that

effect

oncerning the applicability of

--.

federal flammable fabric: standards to this product. It is

understanding, from conversations that

had with Consumer

Products Safety officers in-Boston, that federal flammable fabric

standards do not apply to rubberized

sheeting. On behalf

of Plymouth Rubber Company,

am requesting a

advisory

opinion from the Consumes Products Safety Commission to that

effect.

,

trust that the description of this product, and the uses

to which it is put, which I have furnished you is sufficient to

enable the Commission

furnish

requested

opinion.

If there is any other information which you

regarding

this product, please do not hesitate to contact

I look for­

ward to receiving the Commission's response before too long.