# CPSC OGC Advisory Opinion No. 310: CPSC OGC Advisory Opinion No. 310

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/CPSC_AO_310

## Section

- **Citation:** CPSC OGC Advisory Opinion No. 310
- **Heading:** CPSC OGC Advisory Opinion No. 310
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** CPSC Office of General Counsel Advisory Opinions / CPSC OGC Advisory Opinion No. 310

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/CPSC_AO_310. Check the current official text before relying on it. Not legal advice.