• When Is a Changing Pad Not a Changing Pad? When It’s a... BED?!
  • March 18, 2013 | Author: Jeremy D. Richardson
  • Law Firm: Phillips Nizer LLP - New York Office
  • If you’ve ever bought a mattress, you definitely have seen the tag securely sewn into a seam that says something like “UNDER PENALTY OF LAW THIS TAG NOT TO BE REMOVED EXCEPT BY CONSUMER.” Aside from being the subject of stand-up comedy routines, these tags actually are intended to inform consumers that the mattress is new (or not) and contains all new materials (or not), identify hidden filling materials, name the manufacturer, and state when and where it was made. Since you’ll be sleeping on it for upwards of 25,000 hours, it’s certainly nice to know that it’s not made from recycled dishtowels.

    You may even have noticed these labels are affixed to pillows, comforters and other sleep-related products -- but do they belong on diaper changing pads? Is there anyone who puts a baby to sleep on a changing pad? Isn’t it obvious that a baby should not sleep on one of those curved changing pads atop a changing table? Wouldn’t it be uncomfortable for a baby to snooze on a quarter-inch thick travel changing pad that comes with a diaper bag? Is it really necessary for manufacturers to attach those big, crinkly labels to changing pads, just to remind you of the origin and vintage of your fold-up pad as you remove a soiled diaper? Who would insist on such a thing?

    Yes, Virginia There is a Bedding Clause

    Allow me to introduce you to the Commonwealth of Virginia -- Department of Health -- Bedding and Upholstered Furniture Inspection. Under Virginia law, Chapter 6, Article 7 §32.1-212 it states:

    “‘Bedding’ means any mattress, mattress pad, box spring, upholstered bed, davenport, upholstered sofa bed, quilted pad, comforter, bolster, cushion, pillow, featherbed, sleeping bag, or any other bag, case or cover made of leather, textile or other material which is stuffed or filled in whole or in part with concealed substance, which can be used by any human being for sleeping or reclining purposes.”

    Not only has Virginia apparently taken the position that a travel diaper changing pad (and perhaps all diaper changing pads) “can be used by any human being for sleeping or reclining purposes” to fall within its definition of “Bedding,” but it actively is seeking to compel manufacturers to label their diaper changing pads according to Virginia law, which requires them to:

    “... attach securely thereto a substantial white cloth tag or equivalent, visible on the outside covering of such item and not less than six square inches in size, upon which shall be plainly stamped or printed, in English, the name and address of the manufacturer, importer or distributor, the registration number of the manufacturer or importer, the kind of filling materials used therein, a statement that the filling materials are new, and the number of the permit issued to the person sterilizing any new feathers, hair or down in such item.”

    Assuming, for the sake of argument, that a travel changing pad is considered to be one of the items specified in the Virginia law, and assuming further that it is “stuffed or filled in whole or in part with concealed substance,” the next question is whether it “can be used” for sleeping or reclining. I suppose anything can be used for sleeping or reclining -- so in Virginia, since a travel changing pad can be slept or reclined on, it’s bedding.

    To be fair to Virginia, there are other states with bed labeling laws, and some even use expansive definitions of what may constitute bedding, including that the product can be used for sleeping or reclining. Those states include Arizona, California, Colorado, Florida, Illinois, Missouri, New York, Texas (which includes in its definition of bedding “crib pad, playpen pad, crib bumper pad, car bed pad, infant carrier pad, convertible stroller pad and bassinet pad”), and Utah.

    Other states include a logical qualifier in their bed labeling laws that the product should be intended to be used for sleeping or reclining. These include Arkansas (designed and made for use in sleeping), Connecticut (used or intended to be used for sleeping, resting or reclining), Indiana (designed or made for sleeping or reclining purposes), Minnesota (designed and made for use in sleeping or reclining purposes), New Jersey (to be used on a couch or other bed for sleeping or reclining purposes), Ohio (to be used for sleeping, resting, or reclining purposes), Oklahoma (used principally for sleeping), Rhode Island (when used or intended for use for sleeping or reclining purposes), and Wisconsin (designed and manufactured for the purpose of sleeping or reclining).

    A Way to Stuff a State’s “Mattress” with Money!

    Why has a law first enacted in 1950 (ask parents of early baby-boomers if they used diaper changing pads) and last revised in 2005 become a hot button for Virginia? Well, a partial explanation could lie in a related section of Virginia’s bedding label law, §32.1-217, which requires that every bedding manufacturer and importer obtain from, and annually renew with, the Commonwealth of Virginia a license to sell “bedding.” To obtain (and annually renew) the license, the applicant must provide some information (name, address, etc.) and pay a fee (in the case of manufacturers, importers and distributors, the fee is $100). Failure to obtain the license or label “bedding” pursuant to the law is a Class 2 misdemeanor and constitutes a prohibited practice subjecting the manufacturer to having its products taken off sale.

    What does this mean for manufacturers, importers and distributors of travel diaper changing pads (and manufacturers, importers and distributors of diaper bags that include changing pads)? Short of a legal challenge or lobbying effort, they need to stitch in the bedding labels and write a check for the annual license fee to the Commonwealth of Virginia. Failure to do so runs the risk of enforcement of a law as it pertains to an obviously unintended, and logically inapplicable, product.

    Regulatory compliance has become a significant part of every children’s product manufacturer’s business. Simply because a federal or state law in which a company is based may regulate a product, that does not mean that other states in which the product is sold do not have different (sometimes stricter) laws for the very same products. The Consumer Product Safety Improvement Act created new regulations for “children’s products,” limiting or banning lead and phthalates and requiring testing and certification. However, several states have enacted their own regulations for the same (or similar) “children’s products.” For every CPSIA, which has received wide attention (rightfully so), there exist other regulations, including mattress labeling, that children’s product’s manufacturers should not take lying down (or reclining).