A1373

An Act concerning children’s products and amending P.L.2007, c.124 (C.56:8-53.1 et seq.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.2007, c.124 (C.56:8-53.1) is amended to read as follows:

1. As used in this act:

“Child” means a person less than 14 years of age.

“Children's product” means a product, including, but not limited to, a full-size baby crib, non-full-size baby crib, toddler bed, bed, supplemental mattress, car seat, chair, high chair, booster chair, hook-on chair, bath seat, gate or other enclosure for confining a child, play yard, stationary activity center, carrier, stroller, walker, swing, or toy or play equipment, that meets the following criteria:

a. the product is designed or intended for the care of, or use by, a child; or

b. the product is designed or intended to come into contact with a child while the product is used.

Notwithstanding any other provision of this section to the contrary, a product is not a “children's product” for the purposes of this act if it may be used by or for the care of a child, but it is designed or intended for use by the general population or segments of the general population and not solely or primarily for use by or for the care of a child, or it is a balloon, medication, drug, or food or is intended to be ingested.

“Commercial user” means any person who deals in children's products or who otherwise by one's occupation holds oneself out as having knowledge or skill peculiar to children's products, or any person who is in the business of remanufacturing, retrofitting, selling, leasing, subletting, or otherwise placing in the stream of commerce children's products.

“Crib” means a bed or containment designed to accommodate an infant.

“Full-size baby crib” means a full-size baby crib as defined in [Sections 1508.1 and 1508.3 of title 16, Code of Federal Regulations] 16 C.F.R. s.1219.1 regarding the requirements for full-size baby cribs.

“Non-full-size baby crib” means a non-full-size baby crib as defined in [Section 1509.2 of title 16, Code of Federal Regulations] 16 C.F.R. s.1220.1 regarding the requirements of non-full-sized baby cribs.

“Place in the stream of commerce” means to sell, offer for sale, give away, offer to give away, or allow the use of.

“Supplemental mattress” means a mattress sold separately from any other children’s product and excludes a replacement mattress offered or sold by a manufacturer as an identical replacement part for the mattress originally included with a non-full-size baby crib, play pen, or play yard.

(cf: P.L.2007, c.124, s.1)

2. Section 2 of P.L.2007, c.124 (C.56:8-53.2) is amended to read as follows:

2. a. [It] Except as provided in subsection d. of this section, it shall be an unlawful practice for any commercial user to knowingly remanufacture, retrofit, sell, contract to sell or resell, lease, sublet, or otherwise place in the stream of commerce a children's product deemed unsafe in accordance with this section.

b. A children's product is deemed to be unsafe for purposes of this section if it meets any of the following criteria:

(1) it has been recalled for any reason by a federal agency or the product's manufacturer, distributor, or importer and the recall has not been rescinded; or

(2) a federal agency has issued a warning that a specific product's intended use constitutes a safety hazard and the warning has not been rescinded.

c. Supplemental mattresses marketed for and intended to be used with non-full-size baby cribs, play pens, and play yards with non-rigid sides shall be deemed to be unsafe for the purposes of this section.

d. Notwithstanding subsection c. of this section, the remanufacture or retrofit of supplemental mattresses marketed for and intended to be used with non-full-size baby cribs, play pens, and play yards with non-rigid sides shall not be an unlawful practice under subsection a. of this section, unless the mattress is deemed to be unsafe pursuant to subsection b. of this section.

(cf: P.L.2007, c.124, s.2)

3. This act shall take effect immediately.

STATEMENT

This bill prohibits the sale of unsafe supplemental mattresses intended to be used by children in non-full size baby cribs, portable cribs, play pens, and play yards.

Pursuant to P.L.2007, c.124 (C.56:8-53.1 et seq.), it is currently an unlawful practice under the consumer fraud act for any commercial user to knowingly remanufacture, retrofit, sell, contract to sell or resell, lease, sublet, or otherwise place in the stream of commerce a children’s product deemed unsafe if (1) it has been recalled and the recall has not been rescinded; or (2) a federal agency has issued a warning that a specific product's intended use constitutes a safety hazard and the warning has not been rescinded. An unlawful practice under the consumer fraud act is punishable by a monetary penalty of not more than $10,000 for a first offense and not more than $20,000 for any subsequent offense. Additionally, violations can result in cease and desist orders issued by the Attorney General, the assessment of punitive damages, and the awarding of treble damages and costs to the injured party.

This bill revises P.L.2007, c.124 to include a “supplemental mattress” in the definition of “children’s product,” and specifically deems supplemental mattresses marketed for and intended to be used with non-full-size baby cribs, play pens, and play yards with non-rigid sides to be unsafe for the purposes of P.L.2007, c.124.

The bill maintains that the knowing remanufacture and retrofit of a children’s product deemed unsafe remains an unlawful practice under current law. However, the bill provides that the remanufacture or retrofit of supplemental mattresses marketed for and intended to be used with non-full-size baby cribs, play pens, and play yards with non-rigid sides is not an unlawful practice unless the mattress is deemed to be unsafe under the criteria in subsection b. of section 2 of the bill.

Currently, the federal government requires that mattresses in children’s products meet certain standard consumer safety specifications, such as setting forth the allowable thickness of a mattress, selling a product with the mattress included, only using a mattress provided by the manufacturer, and including a warning about the risk of infant suffocation. Despite these requirements and standards, supplemental mattresses continue to be marketed to consumers for use in certain cribs, play pens, and play yards and present a risk of injury and death.

According to the United States Consumer Product Safety Commission webpage, consumers of play yards are advised not to use supplemental mattresses because supplemental mattresses may create a gap and lead to an entrapment hazard for the child. The existing federal standard inadequately addresses the unreasonable risk of injury that supplemental mattresses pose to children, and supplemental mattresses continue to be sold to consumers. Therefore, the most effective action is to ban the sale of unsafe supplemental mattresses.