Baby Matters, LLC; Complaint, 73621-73626 [2012-29760]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Notices]
[Pages 73621-73626]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29760]


=======================================================================
-----------------------------------------------------------------------

CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 13-1]


Baby Matters, LLC; Complaint

AGENCY: Consumer Product Safety Commission

ACTION: Publication of a Complaint under the Consumer Product Safety 
Act.

-----------------------------------------------------------------------

SUMMARY: Under provisions of its Rules of Practice for Adjudicative 
Proceeding (16 CFR part 1025), the Consumer Product Safety Commission 
must publish in the Federal Register Complaints which it issues. 
Published below is a Complaint: In the Matter of Baby Matters, LLC.\1\
---------------------------------------------------------------------------

    \1\ Commissioner Nancy A. Nord issued a statement regarding this 
issue. The statement is available on the Commission Web site, 
www.cpsc.gov or from the Office of the Secretary.

---------------------------------------------------------------------------
SUPPLEMENTARY INFORMATION: The text of the Complaint appears below.

    Dated: December 5, 2012.
Todd A. Stevenson,
Secretary.
UNITED STATES OF AMERICA
CONSUMER PRODUCT SAFETY COMMISSION
In the Matter of BABY MATTERS LLC, Respondent.


CPSC DOCKET NO. 13-1

Complaint

Nature of Proceedings

    1. This is an administrative enforcement proceeding pursuant to 
Section 15 of the Consumer Product Safety Act (``CPSA''), as amended, 
15 U.S.C. 2064, and Section 15 of the Federal Hazardous Substances Act 
(``FHSA''), as amended, 15 U.S.C. 1274, for public notification and 
remedial action to protect children from the substantial risks of 
injury and death presented by infant recliners known as the Nap 
Nanny[supreg] and the Nap Nanny[supreg] ChillTM 
(collectively, the ``Subject Products''), imported, distributed and 
sold by Baby Matters LLC (``Baby Matters'' or ``Respondent'').
    2. This proceeding is governed by the Rules of Practice for 
Adjudicative Proceedings before the Consumer Product Safety Commission 
(the ``Commission''), 16 CFR part 1025.

Jurisdiction

    3. This proceeding is instituted pursuant to the authority 
contained in Sections 15(c), (d) and (f) of the CPSA, 15 U.S.C 2064 
(c), (d) and (f), and Sections 15(c), (d) and (e) of the FHSA, 15 
U.S.C. 1274(c), (d) and (e).

Parties

    4. Complaint Counsel is the staff of the Division of Compliance 
within the Office of the General Counsel of the Commission (``Complaint 
Counsel''). The Commission is an independent federal regulatory agency 
established pursuant to Section 4 of the CPSA, 15 U.S.C. 2053.
    5. Respondent is a Pennsylvania limited liability company with its 
principal place of business located at 531 Winston Way, Berwyn, 
Pennsylvania, 19312.
    6. From January 2009 until November 2012, Respondent was an 
importer, distributor, and retailer of the Subject Products, as those 
terms are defined in CPSA Sections 3(a)(5), (7), (8), (11) and (13) of 
the CPSA, 15 U.S.C. 2052(a)(5), (7), (8), (11) and (13).
    7. As an importer, from January 2009 until November 2012 Respondent 
was a ``manufacturer'' as that term is defined in CPSA Section 
3(a)(11), 15 U.S.C. 2052(a)(11).

The Consumer Product

    8. From January 2009 until November 2012, Respondent imported and 
distributed the Subject Products in U.S. commerce and offered them for 
sale to consumers for their personal use in or around a permanent or 
temporary household or residence, in recreation or otherwise.
    9. The Subject Products are sold under the brand names Nap 
Nanny[supreg] (``Nap Nanny''), and The Nap Nanny[supreg] 
ChillTM'' (the ``Chill'').
    10. Upon information and belief, three models of the Nap Nanny have 
been introduced in U.S. commerce.
    11. Upon information and belief, one model of the Nap Nanny 
(``Generation One'') was sold between January 2009 and August 2009.
    12. Upon information and belief, the Generation One consists of a 
shaped foam seat base covered by a removable fabric shell, and is 
equipped with a three-point harness.
    13. Upon information and belief, the harness on each Generation One 
Product is attached to the fabric cover only and is not secured to the 
foam base underneath.
    14. Upon information and belief, a second model of the Nap Nanny 
(``Generation Two'') was sold between August 2009 and as late as April 
2012.
    15. Upon information and belief, the Generation Two consists of a 
shaped foam seat base covered by a removable fabric shell and is 
equipped with a three-point harness.
    16. Upon information and belief, the contour of the foam seat base 
of the Generation Two is identical to that of the Generation One.
    17. Upon information and belief, the harness system in the 
Generation Two is sewn to the fabric cover but also can be secured to 
two ``D''-shaped rings embedded in the foam base by means of 
VelcroTM tabs.
    18. Upon information and belief, a third model of the Nap Nanny, 
the Chill, has been sold since January 2011.
    19. Upon information and belief, the Chill consists of a shaped 
foam seat base covered by a removable fabric shell and is equipped with 
a three-point harness.
    20. Upon information and belief, the contour of the Chill model's 
foam base

[[Page 73622]]

has been modified from those of the Generation One and Generation Two 
versions of the Subject Products.
    21. Upon information and belief, the contour of the Chill forms a 
more narrow space around the infant's hip area and provides a higher 
side wall on either side of the infant than do either the Generation 
One or Generation Two models of the Subject Products.
    22. Upon information and belief, the harness in the Chill is 
permanently attached to the foam base, in contrast to the design of the 
Generation One and Generation Two Subject Products.
    23. Upon information and belief, the foam core components of the 
Subject Products were, and continue to be, manufactured by G&T 
Industries, of Reading, Pennsylvania.
    24. Upon information and belief, the fabric covers of the 
Generation One and a portion of fabric covers of the Generation Two 
were manufactured by Ricochet Manufacturing, of Philadelphia, 
Pennsylvania.
    25. Upon information and belief, the fabric covers for a portion of 
the Generation Two are manufactured by Jiaxing Jiayi Garment Co. Ltd., 
of Jiazing, Zhejiang, in China.
    26. Upon information and belief, the fabric covers for the Chill 
are manufactured by Jiaxing Jiayi Garment Co. Ltd., of Jiazing, 
Zhejiang, in China.
    27. Upon information and belief, Respondent imports these fabric 
covers into the United States.
    28. Upon information and belief, the Subject Products have been, 
and continue to be, sold for a retail price of approximately $130.
    29. Upon information and belief, approximately 5,000 units of the 
Generation One and 50,000 units of the Generation Two have been sold to 
consumers in the United States.
    30. Upon information and belief, approximately 100,000 units of the 
Chill have been sold to consumers in the United States.
    31. Upon information and belief, Respondent advised the public on 
its Web site in November 2012 that Respondent has ``closed [its] 
doors,'' and directed consumers to Respondent's retail partners that 
continued to sell the Chill.
    32. Upon information and belief, subsequently, on or about November 
27, 2011, Respondent removed the message that it had ``closed [its] 
doors'' and replaced it with links to the Chill's User Guide and 
registration. Respondent retained the message directing consumers to 
Respondent's retail partners that continued to sell the Chill.

Count 1

The Subject Products are Substantial Product Hazards Under Section 
15(a)(2) of the CPSA, 15 U.S.C. 2064(a)(2), Because They Contain 
Product Defects That Create a Substantial Risk of Injury to the Public

The Subject Products Contain a Design Defect

    33. Paragraphs 1 through 32 are hereby realleged and incorporated 
by reference as though fully set forth herein.
    34. A product may contain a defect even if a product is 
manufactured in exact accordance with its design and specifications, if 
the design presents a risk of injury to the public. 16 CFR Sec.  
1115.4.
    35. Upon information and belief, because the restraint system in 
the Generation One is designed such that the harness straps are secured 
only to the fabric cover and cannot be attached to the foam seat base, 
the fabric cover can move freely over the seat base so that there is no 
means of anchoring the harness to any fixed point.
    36. Upon information and belief, this defective design allows the 
infant to have significant movement within the Generation One even when 
the harness is used.
    37. Upon information and belief, the harness straps of the 
Generation One slide easily through the buckles when the infant user 
moves, preventing a secure, snug fit around the infant's waist.
    38. Upon information and belief, this defective design allows 
freedom of movement such that the infant is able to maneuver over the 
side walls of the Generation One and into other compromised positions. 
This hazardous scenario exists even while the harness is in use.
    39. Upon information and belief, the restraint system in the 
Generation Two is designed such that the two harness straps that 
encircle the infant's waist are sewn to the fabric cover but also could 
be secured, via VelcroTM tabs, to two ``D''-shaped rings 
embedded in the foam seat base. The third point of the harness is sewn 
to the fabric cover between the infant user's legs with no means of 
attaching it to a fixed point on the foam seat base, causing the 
harness straps to slide easily through the buckles and prevent a 
secure, snug fit around the infant's waist.
    40. Upon information and belief, when the harness is not attached 
to the ``D''-shaped rings, the Generation Two harness moves freely with 
the fabric cover.
    41. Upon information and belief, this defective design allows an 
infant to fall or hang over the side of a Generation Two even while the 
harness is in use, which can result in injury or death.
    42. Upon information and belief, parents and caregivers who remove 
the fabric cover of the Generation Two are directed in Respondent's 
instructions that failure to secure the harness around the ``D'' shaped 
rings can allow the infant to turn and contact the floor.
    43. Upon information and belief, the VelcroTM tabs in 
the Generation Two loosen as the infant user moves in the seat.
    44. Upon information and belief, over time, due to the nature of 
VelcroTM, the tabs gradually detach with ease, thereby 
rendering the restraint system ineffective, posing a risk of injury and 
death to the infant.
    45. Upon information and belief, parents or other caregivers using 
a Generation Two are not likely to immediately know that the 
VelcroTM tabs have detached from the ``D''-shaped ring.
    46. Upon information and belief, parents or other caregivers, may 
be unaware of the importance of ensuring that the VelcroTM 
tabs are secured around the ``D''-shaped rings after replacing the 
cover and before every use.
    47. Upon information and belief, because the restraint system in 
the Chill is permanently attached to three points on the foam seat 
base, this design makes it difficult for caregivers to adjust the waist 
straps.
    48. Upon information and belief, because it is difficult to adjust 
the waist straps in the Chill, parents and other caregivers are less 
likely to use the harness.
    49. Upon information and belief, due to difficulty of use in the 
case of the Chill and ineffectiveness in the case of the other models, 
parents and other caregivers are unlikely to use the harness on any of 
the Subject Products.
    50. Upon information and belief, even if the harness is used, the 
harness may fail to prevent the infant user from moving into a 
compromised position if it is not adequately tightened around the 
infant.
    51. These defective designs pose a risk of injury and death to 
infant users.

The Subject Products Are Defective Because the Risk of Injury Occurs as 
a Result of Their Operation or Use

    52. A design defect may also be present if the risk of injury 
occurs as a result of the operation or use of the product. 16 CFR Sec.  
1115.4.

[[Page 73623]]

    53. Upon information and belief, the Subject Products have been 
advertised and marketed by Respondent as devices that promote a full 
night's sleep for infants.
    54. Upon information and belief, the risk of injury occurs as a 
result of the use of the Subject Products by parents and caregivers 
who, contrary to the on-product warnings, are likely to use the 
product, regardless of the version, in cribs and other traditional 
sleep environments in order to ensure the child's safety during a full 
night's sleep.
    55. Upon information and belief, the risk of injury occurs as a 
result of the foreseeable use and/or misuse of the Subject Products by 
parents and caregivers.
    56. Upon information and belief, infants who are not adequately 
restrained in the Subject Products may move into compromised positions 
on the side or inside the seat well of the recliner, which can result 
in injury or death.
    57. Upon information and belief, when a Subject Product is used in 
a crib, an infant may be able to maneuver its head over the side of the 
Subject Product and become entrapped between the Subject Product and a 
bumper pad of a crib or the side of a crib, which can result in injury 
or death.
    58. The Subject Products contain a design defect because they fail 
to operate as intended and present a substantial risk of injury to the 
public.

The Subject Products Are Defective Because Their Instructions and 
Warnings Are Inadequate

    59. A defect can occur in a product's contents, construction, 
finish, packaging, warnings and/or instructions. 16 CFR Sec.  1115.4.
    60. A defect can occur when reasonably foreseeable consumer use or 
misuse, based in part on the lack of adequate instructions and safety 
warnings, could result in injury, even where there are no reports of 
injury. 16 CFR Sec.  1115.4.
    61. Upon information and belief, from approximately January 2009 
through July 2010, all of the Generation One and Generation Two models 
had a warning label that read as follows: ``Safety guidelines to 
prevent injury or death: FALL HAZARD: ALWAYS use on the floor. This 
product should not be used inside a crib. NEVER place product on 
countertops, tables, steps or other elevated surfaces. SUFFOCATION 
HAZARD: NEVER use on soft or uneven surface (sofa, bed cushion), as 
seat may tip over and cause suffocation. NEVER use with blankets, 
towels, pillows, or other soft objects while child is in seat. Intended 
for infants 8 pounds or 3.6 kilograms and above. NEVER leave child in 
the seat when straps are loose or undone. Adjust the straps provided so 
they fit snugly around the infant. NEVER move or carry unit while child 
is in seat. Not intended for carrying a baby.''
    62. Upon information and belief, this warning was printed in 
extremely small (approximately 6-point) font on the underside of the 
product, which would be placed on the floor or other surface and thus 
not visible to consumers during use.
    63. Upon information and belief, on or about April 17, 2010, a six-
month-old girl died when she suffocated while using a Generation Two 
model of the Subject Products. Not secured in the harness, the infant 
was found with her face pressed between the Nap Nanny and the crib 
bumper. The medical examiner ruled the cause of death as probable 
positional asphyxia.
    64. Upon information and belief, on or about July 9, 2010, a four-
month-old girl died when she suffocated between a Generation Two Nap 
Nanny and the bumper in her crib. Although the harness had been secured 
around the infant, it failed to adequately restrain her in the seat. 
She was found by her mother in the Nap Nanny, with the harness secured 
but with her head tilted back and her neck hyperextended. Her face was 
pressed against the bumper pad of her crib. The medical examiner ruled 
the cause of death as position/compression asphyxia.
    65. On July 26, 2010, the Commission and the Respondent issued a 
joint press release announcing a recall of the Generation One and the 
Generation Two models of the Subject Products: Baby Matters Recalls Nap 
Nanny [supreg] Recliners Due to Entrapment, Suffocation and Fall 
Hazards; One Infant Death Reported.
    66. Upon information and belief, on or about July 26, 2010, 
Respondent executed a corrective action plan in cooperation with the 
U.S. Consumer Product Safety Commission. As part of this corrective 
action plan, Respondent modified the warnings, instructions, and 
labeling on the Generation Two products that were in Respondent's 
inventory at the time and on the Subject Products imported, sold, and 
distributed thereafter by Respondent.
    67. Upon information and belief, as part of the corrective action, 
Respondent relocated the warning label from the underside of the 
Generation Two model to the front of the Generation Two model, 
increased the font size of the warning, and changed the text of the 
warning label to read as follows: ``ALWAYS use on floor. NEVER use in 
crib. ALWAYS secure buckles on harness. NEVER use with infant under 8 
pounds (3.6 kilograms). When infant can sit up, do not use for sleep. 
Suffocation hazards:--Do not place inside crib, other contained areas, 
or on the floor next to other vertical surfaces (e.g., walls, dresser). 
An infant who leans over side can become entrapped between the product 
and another object.--Never use on soft surfaces (e.g., bed, sofa, 
cushion) where product can tip over and cause suffocation in soft 
surfaces.--Do not add blankets, towels, or other soft objects that can 
cover face. Fall hazards:--Never use on counter tops, tables or other 
elevated surfaces from which infant can fall.--Never carry product with 
infant in it.--ALWAYS secure infant snugly in harness or infant may 
turn sideways and fall. Strangulation hazards:--Head/neck can get 
caught in loosely fastened seatbelt if infant tries to get out of 
product.--Head/neck can get caught in a fastened seatbelt not in use if 
active infant tries to climb in and out of product unassisted.''
    68. Upon information and belief, the change in warning did not 
address the Subject Products that had already been purchased by 
consumers or that remained in retailers' inventory.
    69. Upon information and belief, for products already purchased by 
consumers or those that remained in retailers' inventory, Respondent 
directed retailers with Generation Two products to place a sticker on 
the plastic bag covering the product.
    70. Upon information and belief, the sticker directed users to a 
website, www.napnanny.com/recall, which contained the revised warnings 
and instructions that were part of the recall and corrective action 
plan.
    71. Upon information and belief, at the time of the recall, 
Respondent knew of the July 9, 2010 fatality, one injury, and 21 other 
incidents resulting from the failure of the harness systems on the 
Generation One and the Generation Two to properly secure the infant.
    72. Upon information and belief, since the Chill was first 
introduced into commerce in January 2011, the warning label read as 
follows: ``To avoid serious injury or death, read and follow the 
warnings and instructions provided below: ALWAYS use on floor. NEVER 
use in crib. ALWAYS secure buckles on harness. NEVER use with clothing 
or blankets that interfere with the use of the harness. Harness must 
always be snug against your child. NEVER use with infant under 8 pounds 
(3.6 kilograms). When infant can sit up, do not use for sleep. For 
infants who

[[Page 73624]]

cannot sit up, use for sleep, feeding and play time. ALWAYS secure 
infant snugly in harness or infant may turn sideways and fall. 
Suffocation hazards--Do not place inside crib, other contained areas, 
or on the floor next to other vertical surfaces (e.g., walls, dresser). 
An infant who leans over side can become entrapped between the product 
and another object.--Never use on soft surface (e.g., bed, sofa, 
cushion) where product can tip over and cause suffocation in soft 
surfaces.--Do not add blankets, towels, or other soft objects that can 
cover face. Fall hazards--Never use on counter tops, tables, or other 
elevated surfaces from which infant can fall.--Never carry product with 
infant in it.--ALWAYS secure infant snugly in harness or infant may 
turn sideways and fall. Strangulation hazards--Head/neck can get caught 
in loosely fastened seatbelt if infant tries to get out of product.--
Head/neck can get caught in a fastened seatbelt not in use if active 
infant tries to climb in and out of product unassisted.''
    73. Upon information and belief, subsequent to the July 2010 
recall, and despite enhanced warnings and revised instructions on the 
Subject Products, parents and caregivers continue to use the Subject 
Products inside of cribs and other sleeping environments, contrary to 
the warnings on the Subject Products.
    74. Upon information and belief, subsequent to the July 2010 
recall, and despite enhanced warnings and revised instructions on the 
Subject Products, parents and caregivers continue to use the Subject 
Products without using the harness or ensuring that the harness is 
firmly secured around the infant.
    75. Upon information and belief, since the July 2010 recall, at 
least three additional fatalities of infants using the Subject Products 
have been reported.
    76. Upon information and belief, one of those fatalities involved 
an infant sleeping in the Chill.
    77. Upon information and belief, over 70 other incidents have been 
reported of children nearly falling out of the Subject Products.
    78. The warnings and instructions on the Subject Products are 
inadequate and defective because they do not and cannot effectively 
communicate to parents and caregivers the hazard associated with use of 
the Subject Products inside cribs and other sleep enclosures.
    79. The warnings and instructions on the Subject Products are 
inadequate and defective because they do not and cannot effectively 
communicate to parents and caregivers the hazard associated with the 
Subject Products if the harness is not used or is not snugly secured 
around the infant.
    80. Because the warnings and instructions on the Subject Products 
are inadequate and defective, parents will continue to use the Subject 
Products in cribs or other enclosures.
    81. Because the warnings and instructions on the Subject Products 
are inadequate and defective, parents will not use the harness provided 
or will not secure it snugly around the infant.
    82. Parents and caregivers cannot and do not appreciate the hazard 
associated with using the Subject Products in locations other than the 
floor, and it is thus foreseeable that they will use the Subject 
Products in cribs, play yards, or other enclosures. These uses can and 
do result in infant death and injury.
    83. Parents and caregivers cannot and do not appreciate the hazard 
associated with not using the harness or not securing the harness 
snugly, and it is foreseeable that they will use the Subject Products 
without securing the harness or without securing it snugly around the 
infant. These uses can and do result in infant death and injury.
    84. The warnings on the Subject Products are inadequate and 
defective because while they warn against use of the Subject Products 
in a crib and advise users to secure the infant with the three point 
harness, they do not convey the gravity of the consequences of non-
compliance. Specifically, the warnings and instructions do not 
communicate that an infant can die if placed in a Subject Product used 
in a crib or other enclosure, or if the harness is not used or 
adequately secured. These uses can and do result in infant injury and 
death.
    85. In addition, the warnings and instructions on the Generation 
Two are inadequate and defective because they do not convey the 
importance of ensuring, before each use, that the VelcroTM 
tabs are attached to the ``D''-shaped rings embedded in the foam seat. 
The VelcroTM tabs can loosen with time and normal use of the 
Generation Two, allowing a child to extend his or her head over the 
side of the product or to fall down inside the well of the seat. It is 
not obvious to caregivers when these rings become loosened or 
unattached.
    86. The effectiveness of the warnings on the Subject Products is 
further diminished by the advertising and marketing of the Subject 
Products.
    87. Upon information and belief, in 2009 and thereafter, Respondent 
advertised the Subject Products as sleep products.
    88. Upon information and belief, the advertisements encouraged 
consumers to use them for unattended, overnight sleep, advancing the 
tagline, ``Everybody Sleeps!''
    89. Upon information and belief, Respondent's advertisements 
further encouraged consumers to use the Subject Products as a 
traditional sleep environment, contending that the product is, ``Better 
than a bassinet, more effective than a wedge.''
    90. Upon information and belief, Respondent's advertisements also 
promoted the Subject Products as a safe environment for infant sleep, 
by characterizing the Subject Products as, ``The only portable infant 
recliner designed for sleep, play--and peace of mind.''
    91. Upon information and belief, advertising for the Chill promotes 
the Chill as having ``a 3-point safety harness anchored to the foam--no 
D-rings or loose cover to worry about--a contoured bucket for maximum 
containment and a large foam base for total stability.''
    92. Upon information and belief, that advertisement suggests that 
the Chill is safer than the Generation Two.
    93. Upon information and belief, Respondent's retail partners 
advertised and marketed the Subject Products as a solution for babies 
with gastro-esophageal reflux disease that have difficulty sleeping 
comfortably on flat surfaces. Respondents knew or should have known 
that its retail partners advertised and marketed the Subject Products 
in this manner.
    94. The advertising and marketing of the Subject Products conflict 
with the current warnings and instructions that the Subject Products 
should not be used for unattended overnight sleep.
    95. The advertising and marketing of the Subject Products conflict 
with the current warnings and instructions that the Subject Products 
not be used if the infant can sit up unaided.
    96. Because the advertising and marketing of the Subject Products 
conflict with the weight, age, and usage restrictions described on the 
label, the effectiveness of the warning label is diminished.
    97. Even if the warnings and instructions on the Subject Products 
were enhanced, and the attendant advertising were changed, it is 
foreseeable that parents and caregivers would continue to use the 
products in cribs, bassinettes, and other sleep environments.
    98. Parents and caregivers are likely to continue to use the 
Subject Products in enclosed spaces such as cribs in order to create a 
barrier to older siblings, pets, or pests in the home.
    99. Parents and caregivers are likely to continue to use the 
Subject Products in

[[Page 73625]]

cribs because cribs are traditionally viewed as safe sleeping 
environments.
    100. Because of the lack of adequate instructions and safety 
warnings, a substantial risk of death and injury occurs as a result of 
the foreseeable use and misuse of the Subject Products.

The Type of the Risk of Injury Renders the Subject Products Defective

    101. The risk of injury associated with a product may render the 
product defective. 16 CFR Sec.  1115.4.
    102. The nature of the risk of injury includes death if a child 
becomes trapped between the side of the Subject Products and the bumper 
pad or the side of a crib.
    103. The nature of the risk of injury also includes death if a 
child is not restrained in the seat of the Subject Products and 
suffocates on the interior wall or well of the seat.
    104. Infants, a vulnerable population protected by the CPSA and 
FHSA, are exposed to risk of injury by the Subject Products.
    105. The risk of injury associated with use of the Subject Products 
in a crib is neither obvious nor intuitive.
    106. The risk of injury associated with use of the Subject Products 
without the harness or without tightly securing the harness is neither 
obvious nor intuitive.
    107. Warnings and instructions cannot adequately mitigate the risk 
of injury and death associated with use of the Subject Products.
    108. Because Respondent promoted the use of the Subject Products 
for unsupervised, overnight sleep, use of the Subject Products in a 
crib or other enclosed areas is foreseeable.
    109. Use of the Subject Products without securing the harness 
around the infant is foreseeable.
    110. The type of the risk of injury renders the Subject Products 
defective.

The Subject Products Create a Substantial Risk of Injury to the Public

    111. The Subject Products pose a risk of injury or death to infants 
who may, consistent with developmentally appropriate behavior, maneuver 
to compromised positions either within Subject Products or partially 
outside Subject Products used in cribs.
    112. Therefore, because the Subject Products are defective and 
create a substantial risk of injury, the Subject Products present a 
substantial product hazard within the meaning of Section 15(a)(2) of 
the CPSA, 15 U.S.C. 2064(a)(2).

Count 2

The Subject Products Are Intended for Use by Children and Contain 
Defects Which Create a Substantial Risk of Injury to Children Under 
Section 15(c)(1) of the FHSA

    113. Paragraphs 1 through 112 are hereby realleged and incorporated 
by reference as though fully set forth herein.
    114. Upon information and belief, the Subject Products are an 
article intended for use by children as young as newborns. Respondent 
has marketed, and continues to promote, the Subject Products as 
appropriate for use by infants weighing eight pounds or more until the 
infant can sit up unassisted.
    115. The Subject Products contain a design defect that is present 
in all models of the Subject Products.
    116. The harness designs in the Generation One and the Generation 
Two are defective because each design fails to adequately restrain the 
infant user.
    117. The harness design in the Generation Two is also defective 
because the ``D''-shaped ring in the foam base must be secured after 
the cover is changed, and can also become loose with regular use of the 
product. Caregivers are not informed adequately of the importance of 
securing the harness straps to the ``D''-shaped rings embedded in the 
foam seat base and may use the product without securing the ``D''-
shaped rings or ensuring that they are adequately tightened before each 
use.
    118. The harness design in the Chill is defective because the 
double-threaded buckles inhibit a caregiver's ability to secure the 
harness around the infant user, thereby reducing the effectiveness of 
the harness and the likelihood of use of the harness by the caregiver.
    119. Upon information and belief, Respondent has distributed over 
150,000 Subject Products into U.S. commerce and the Chill continues to 
be available for purchase through Respondent's retail partners.
    120. Upon information and belief, the severity of the risk 
associated with use of all of the Subject Products is extremely high, 
as five infants have died while using the Subject Products.
    121. The Subject Products contain a defect, which creates a 
substantial risk of injury to children because of the pattern of 
defect, the number of such defective articles distributed in commerce 
and the severity of the risk within the meaning of Section 15(c)(1) of 
the FHSA, 15 U.S.C. Sec.  1274(c)(1).

Relief Sought

    Wherefore, in the public interest, Complaint Counsel requests that 
the Commission:
    A. Determine that the Subject Products present a ``substantial 
product hazard'' within the meaning of Section 15(a)(2) of the CPSA, 15 
U.S.C. 2064(a)(2), and/or present a ``substantial product hazard'' 
within the meaning of Section 15(a)(1) of the CPSA, 15 U.S.C. 
2064(a)(1).
    B. Determine that the Subject Products contain a defect, which 
creates a substantial risk of injury to children because of the pattern 
of defect, the number of such articles distributed in commerce, the 
severity of the risk, or otherwise, within the meaning of Section 
15(c)(1) of the FHSA, 15 U.S.C. 1274(c)(1).
    C. Determine that extensive and effective public notification under 
Section 15(c) of the CPSA, 15 U.S.C. 2064(c), is required to protect 
the public and children adequately from the substantial product hazard 
presented by the Subject Products, and order Respondent under Section 
15(c) of the CPSA, 15 U.S.C. 2064(c) to:
    (1) Cease any remaining distribution of the product to other 
distributors, wholesalers or retailers;
    (2) Notify all persons that transport, store, distribute or 
otherwise handle the Subject Products, or to whom such products have 
been transported, sold, distributed or otherwise handled, to 
immediately cease distribution of the Subject Products;
    (3) Notify appropriate state and local public health officials;
    (4) Give prompt public notice of the defects in the Subject 
Products, including the incidents and injuries associated with use of 
the Subject Products including posting clear and conspicuous notice on 
Respondent's Web site, and providing notice to any third party Web site 
on which Respondent has placed the Subject Products for sale, and 
provide further announcements in languages other than English and on 
radio and television;
    (5) Mail notice to each distributor or retailer of the Subject 
Products; and
    (6) Mail notice to every person to whom the Subject Products were 
delivered or sold;
    D. Determine that extensive and effective public notification under 
Section 15(c)(1)(A) of the FHSA, 15 U.S.C. 1274(c)(1), is required to 
protect the public and children adequately from the substantial product 
hazard presented by the Subject Products, and order Respondent under 
Section 15(c) of the FHSA, 15 U.S.C. 1274(c)(1)(A) to:

[[Page 73626]]

    (1) To give public notice that such defective toy or article 
contains a defect which creates a substantial risk of injury to 
children;
    (2) To mail such notice to each person who is a manufacturer, 
distributor, or dealer of such toy or article; and
    (3) To mail such notice to every person to whom the person giving 
notice knows such toy or article was delivered or sold.
    E. Determine that action under Section 15(d) of the CPSA, 15 U.S.C. 
2064(d) and Section 15(c)(2) of the FHSA, 15 U.S.C. 1274(c)(2), is in 
the public interest and additionally order Respondent to:
    (1) Refund consumers the purchase price of the Subject Products;
    (2) Make no charge to consumers and to reimburse consumers for any 
reasonable and foreseeable expenses incurred in availing themselves of 
any remedy provided under any Commission Order issued in this matter, 
as provided by Section 15 U.S.C. 2064(e)(1) of the CPSA and Section 15 
U.S.C. 1274(d)(1) of the FHSA;
    (3) Reimburse retailers for expenses in connection with carrying 
out any Commission Order issued in this matter, including the costs of 
returns, refunds and/or replacements, as provided by Section 15(e)(2) 
of the CPSA, 15 U.S.C. 2064(e)(2) and Section 15(d)(2) of the FHSA, 15 
U.S.C. 1274(d)(2);
    (4) Submit a corrective action program satisfactory to the 
Commission, within ten (10) days of service of the Final Order, 
directing that actions specified in Paragraphs C(1) through (6) and 
D(1) through (3) above be taken in a timely manner;
    (5) To submit monthly reports, in a format satisfactory to the 
Commission, documenting the progress of the corrective action program;
    (6) For a period of five (5) years after issuance of the Final 
Order in this matter, to keep records of its actions taken to comply 
with Paragraphs C(1) through (6) and D(1) through (3) above, and supply 
these records to the Commission for the purpose of monitoring 
compliance with the Final Order; and
    (7) For a period of five (5) years after issuance of the Final 
Order in this matter, to notify the Commission at least sixty (60) days 
prior to any change in its business (such as incorporation, 
dissolution, assignment, sale, or petition for bankruptcy) that results 
in, or is intended to result in, the emergence of a successor 
corporation, going out of business, or any other change that might 
affect compliance obligations under a Final Order issued by the 
Commission in this matter.
    F. Order that Respondent shall take other and further actions as 
the Commission deems necessary to protect the public health and safety 
and to comply with the CPSA and FHSA.
    Issued By Order of the Commission:
Dated this -- day of December, 2012.
-----------------------------------------------------------------------
BY: Marc Schoem
Acting Assistant Executive Director for Compliance and Field Operations

U.S. Consumer Product Safety Commission, Bethesda, MD 20814, Tel: (301) 
504-7520.

Mary B. Murphy, Assistant General Counsel, Division of Compliance, 
Office of General Counsel, U.S. Consumer Product Safety Commission, 
Bethesda, MD 20814, Tel: (301) 504-7809.

-----------------------------------------------------------------------
Kelly Moore, Trial Attorney, Complaint Counsel, Division of Compliance, 
Office of the General Counsel, U.S. Consumer Product Safety Commission, 
Bethesda, MD 20814, Tel: (301) 504-7447.

Certificate of Service

    I hereby certify that on December --, 2012, I served the foregoing 
Complaint and List of Summary and Documentary Evidence upon all parties 
of record in these proceedings by hand-delivering and mailing, 
certified mail, postage prepaid, a copy to each at their principal 
place of business, and courtesy copy to counsel, as follows:

Baby Matters LLC, 531 Winston Way, Berwyn, PA 19312.

Raymond G. Mullady, Jr., BLANK ROME LLP, Watergate, 600 New Hampshire 
Avenue NW., Washington, DC 20037, Counsel for Baby Matters LLC.

Mary B. Murphy, Complaint Counsel for U.S. Consumer Product Safety 
Commission.
[FR Doc. 2012-29760 Filed 12-10-12; 8:45 am]
BILLING CODE 6355-01-P