TRADE PRACTICES (CONSUMER PRODUCT SAFETY STANDARD) (BABY BATH AIDS) REGULATIONS 2005 (SLI NO 83 OF 2005)

REGULATION IMPACT STATEMENT

PROPOSED MANDATORY CONSUMER PRODUCT SAFETY STANDARD ON BABY BATHING AIDS

April 2005

Product Safety Policy Section
Compliance Strategies Branch
Australian Competition and Consumer Commission

INTRODUCTION

This paper considers the need for Government regulation to address the hazards associated with the use of baby bathing aids.

Baby bathing aids are manufactured products of various design and materials. Baby bathing aids are designed to contain and support an infant while in the bathtub, at the same time freeing the adult’s hands. They are designed to be used under adult supervision only. There are several types of baby bathing aids on the market including bathing cradles, bath rings and bath seats, with some incorporating an activity function.

PROBLEM

What is the problem being addressed?

Baby bathing aids are a popular product and have been sold widely throughout Australia for in excess of 25 years. They are available in specialist baby goods stores and through major retailers and discount chain stores. All baby bath supports supplied to the Australian market are imported. Some products are imported as components and are assembled locally. The supply of the recliner fabric type of baby bath support appears to be unique to the Australian market.

The injuries and deaths associated with baby bathing aids do not usually result from defects in the product. They are mostly as a result of parents/carers leaving the infant in the bathing aid without any adult supervision. Infants can lift up their legs, slip through the leg openings and become entangled in the bath seat, which can result in the infant being pulled down under the water line. This then puts the infant at risk of drowning. Infants have also fallen out of bath seats and drowned.

The October 2002 report by the NSW Water Safety Taskforce “Analysis of drownings involving children aged five years and under in NSW” looked at accidental drownings based on a study of coronial records in NSW for the period January 1995 to April 2001. Out of a total of 82 drownings, 16 (19·5%) children drowned in bathtubs with drowning in bathtubs most common in the one year old group followed by babies less than 12 months of age. The report states that “the single biggest contributing factor to bathtub drowning was a lack of direct adult supervision, with children being left alone, or with another child in the bath.” It also stated that “in a small number of cases (2) children climbed or fell out of bath seats, indicating that such equipment alone cannot guarantee the safety of a small child when they are left unsupervised.”

In a study conducted by the Injury Prevention Research Officer of the Victorian State Coroner’s Office, in which the deaths in bathtubs of 25 children were analysed, it was found that in every case, inadequate carer supervision was the most significant contributing factor. In consequence, any option adopted will need to impact upon the attitudes and practices of parents and carers using baby bathing aids to assist their infant bathing.

The ongoing incidence of child deaths in accidents involving the use of baby bathing aids is an issue which has been raised in coronial inquests and is a continuing community concern. Ultimately, any reduction of infant mortality will benefit the community at large.

Why is government action needed to correct the problem?

The United States Consumer Product Safety Commission (USCPSC) reports that it is aware of 104 drownings and 153 near drownings since 1983 implicating baby bath supports. The USCPSC is currently examining the safety of bath seats. Although being heavily lobbied by consumer groups and child protection agencies to ban the products, it unanimously voted in October 2003 to propose a federal mandatory safety standard for baby bath aids to address the injury risks, rather than a ban.

The proposed US mandatory standard, which is based on the ASTM (American Society for Testing and Materials) standard, seeks to address the injury risks of bath seats tipping over and children slipping through the leg openings and becoming entrapped. A new warning label clearly informing users never to leave a child unattended has also been proposed.

In Australia there have been 5 reported drowning deaths and several reported near-drownings associated with baby bath aids. There is no applicable Australian standard in relation to bath frames/cradles or bathing seats/rings. New South Wales introduced mandatory labelling requirements on infant bathing aids in March 2004, with date of effect of 1 August 2004, and these requirements have been adopted by Western Australia and Victoria. Other jurisdictions are also likely to follow this lead.

The Infants and Nursery Products Association of Australia (INPAA) developed a voluntary industry safety standard which covers performance, test methods and safety labelling for infant bathing aids in June 2003. However, industry self-regulation has to-date not proven effective in achieving desired outcomes, notwithstanding the elapse of more than 12 months since the adoption of the standards.

Even where mandatory standards apply, as in New South Wales, government enforcement has been an essential requirement. Between 9 August 2004 and 17 August 2004, the New South Wales Office of Fair Trading undertook a marketplace survey of baby bathing aids throughout the Sydney metropolitan area, inspecting over 40 major retail stores and specialist baby stores. Of over 400 baby bathing aids checked, less than 30% were found to comply with the mandatory provisions of the NSW law (upon which the proposed TPA requirements are based), notwithstanding a wide awareness amongst retailers of the statutory requirements. Known suppliers were contacted, and NSW investigators were advised by a number of interstate suppliers that their products throughout Australia would now be labelled in accordance with the NSW provisions. In consequence, it would appear that self-regulation is being overtaken by events, given the need to comply with recent regulatory developments at the State / Territory level.

OBJECTIVES

What are the objectives of government action?

The Government’s goal, in the case of baby bathing aids, is to develop a cost-effective strategy to significantly reduce the rate of drowning deaths and the hazards associated with the use of these products.

Is there any regulation currently in place? Who administers it?

There is currently no regulation under the Trade Practices Act 1974. New South Wales and Western Australia have both had mandatory labelling requirements on infant bathing aids for more than a decade. In NSW, these requirements were updated in March 2004, with effect from 1 August 2004. The labelling requirements are intended to act as a prevention measure to ensure that each time the product is used, the parent or carer is adequately warned of the dangers of leaving the child alone in the bath. Western Australia gazetted an order on 2 July to mirror the NSW requirements and Victoria adopted the requirements by way of an interim Regulation which came into effect on 6 December 2004 and which will expire on 6 July 2005. Queensland has indicated that it plans to adopt the New South Wales legislative requirements, while also continuing to consider other possible additional action.

OPTIONS

There are three options that might be considered at the national level to reduce deaths and injuries associated with baby bathing aids:

• Industry self-regulation (status quo);

• Consumer education; and

• Government regulation, which could comprise

– Banning the supply of baby bathing aids; or

– Mandating standards applicable to supply of baby bathing aids.

Industry self-regulation

Industry self-regulation involves voluntary action by industry to control the supply of particular products for the benefit of consumers.

Consumer Education

Education of parents/carers can be in different forms, and could involve both industry and governmental participation. It could be directed to increasing community awareness of problems and dangers connected with the usage of baby bathing aids at point-of-sale of the product, or could be less focused in nature.

Government regulation

The Government has the power to regulate the supply of consumer products under the product safety provisions of the Trade Practices Act 1974 by either prohibiting the supply of unsafe goods or by permitting the supply of goods only if they comply with mandatory safety or information requirements. TPA mandatory standards are enforced by the Australian Competition and Consumer Commission (ACCC) through surveys and monitoring of the market and legal action where required.

While the usage of baby bathing aids has been connected to a number of infant deaths and injuries, the primary cause of the death or injuries suffered has related to failures by the parent/carer to adequately supervise their infant at all times rather than any inherent defect in the product. It is apparent from the continuing usage (and mis-use) of these products that parents and infant carers are strong advocates of the benefits found in using baby bathing aids. In consequence, banning supply of these product is not considered to be an appropriate response to address the problem. These products have an obvious utility for parents/carers with lower back problems, for persons with disabilities and for parents with twins, triplets, etc or with more than one child under two years of age.

Banning the supply of baby bathing aids is also arguably not possible under the existing provisions in the TPA, as injuries result from misuse of the product rather than from any inherent problem with the products themselves. The industry is also strongly opposed to banning the product. Amending the Act to specifically ban the supply of baby bathing aids would be costly and could only be justified if a clear case could be made out to support this action and for changes to the present regulatory regime for controlling the supply of ‘unsafe’ goods. Given the broad-based opposition to banning baby bath aids and the past conclusion of the USCPSC that banning the supply of baby bathing aids cannot be justified, the option of so doing has not been further canvassed. In the event that labelling fails to achieve its objective of reducing infant injury and death, it is possible that more draconian regulatory intervention could be considered in the future. Such an option, however, would require primary legislation by the Commonwealth and given the absence of constitutional authority for such an act, support from the States / Territories would be integral to the efficacy of any such proposal.

An alternative regulatory option for dealing with problems associated with the use of baby bathing aids is obviously to establish a mandatory consumer product safety standard, requiring baby bathing aids supplied in Australia to have warning labels attached. The essential characteristics of a warning label is that the label would need to be permanent (ie not easily removed) and that it be conspicuously visible whenever the product was being used. This would provide a focused response to the problem and provide a continuing and appropriate warning and reminder to parents/carers of the dangers involved in failing to adequately supervise infants when baby bathing aids are being used. The form of the warning mandated by NSW, and which the Commonwealth proposes to replicate, is reproduced at Page 11.

It is established practice to publicise the introduction of mandatory TPA standards with an information campaign advising industry and consumers of the new requirements. Consumer information would include advice on the safe use of baby bathing aids to help address the hazards associated with usage of baby bathing aids.

IMPACT ANALYSIS

Who is affected by the problem and who is likely to be affected by its proposed solution?

Any response to the problem identified in this paper involving the use of baby bathing aid products would affect all Australian consumers, businesses involved in the supply of baby products (importers, distributors and retailers) and government.

Costs and Benefits of Each Option

1 Industry Self-Regulation

Costs

Consumers

It is unlikely that independent businesses will voluntarily stop supplying baby bathing aids that do not have the key labelling requirements and in consequence consumers may inadvertently purchase baby bathing aids which fail to provide adequate warnings concerning use, resulting in them being unaware of the dangers of leaving an infant unsupervised while in a bathing aid. This could lead to a continuation of unacceptable levels of baby bathing aid injuries and deaths. Any direct costs which are incurred by businesses seeking to reduce death or injuries through self-regulation will be passed on to consumers as part of the product price.

Industry and Small Business

Industry is required to bear the cost of implementing and monitoring any permanent labelling regime or advertising which is undertaken to forestall the possibility of government regulatory intervention. If the overseas manufacturers do not agree to incur these costs, they would be borne by importers and passed on to consumers. Industry has a need to establish an infrastructure to monitor the effectiveness of the current regime. There are a range of costs which would be borne by both importers and others in the supply chain in relation to matters involved in the administration of self-regulatory mechanisms, and if these costs are reflected in the price of the product, there may be an appreciable effect on both profit margins and on consumer demand for baby bathing aids.

Government

The Government would be subject to criticism for failing to act to protect the lives of Australian infants. If industry self-regulation were ineffective, there would be a continuing cost to the community involving supply of health care and other government services as a result of injuries to infants connected with the use of baby bathing aids.

Benefits

Consumers and industry might benefit from an increased range of safer products if any self-regulation adopted was effective, and the government would not incur the enforcement costs which would be applicable if any regulatory option were to be adopted. There is an unquantifiable benefit to business in not being subject to government regulation, but the absence of regulation is likely to encourage innovation, the results of which can potentially benefit all sectors of the community. There would also be unquantifiable savings to government in reduced health care costs, dependant upon the success or otherwise of self-regulation.

2 Consumer Education

Costs

Consumers

Educational activities by suppliers will have the primary goal of increasing product sales and may therefore not be in the form most appropriate to consumers’ needs. Government funded education may be inadequately targeted if it is directed to point-of-sale and may not have a lasting impact on the manner in which baby bathing aids are used by parents/carers.

To be effective, it has been argued that education needs to be on-going, and this would best be achieved by labelling of an educative nature which is apparent when baby bathing aids are being used. It is open to governments to seek to educate purchasers or potential purchasers of baby bathing aids by publication of posters, leaflets and brochures. Such promotional activities, however, are not of an ongoing nature. It is self-evident that the benefits of educational activities are likely to be proportional to the magnitude of the activities involved. However, educational activities in relation to hazardous consumer goods usually involve expenditure in the vicinity of $50,000 (incorporating publication of posters and leaflets, accompanied by use of media releases, public launch by the responsible Minister, etc. The capacity of educational activities of such a magnitude to adequately address the ongoing problem of infant death and injury is considered to be marginal.

Industry and Small Business

Costs will relate to advertising and product differentiation. However, these costs would be entered into voluntarily and only if the expected return was greater than the costs. Small businesses at the retail level are unlikely to be subject to any substantial impact.

Government

Insofar as inadequate carer supervision has been identified in coronial inquests as being the most significant contributing factor to infant deaths involving the use of baby bathing aids, it is contended by some that carers attitudes to and expectations of baby bathing aids need to change and that this can only be achieved through education. Whilst this is undeniably true, there is no clear consensus as to how to achieve changes to community paradigms in a cost efficient manner.

Government would be responsible for direct costs involved in funding any consumer education undertaken by it. A suitable strategy might comprise, for example, the publication and distribution of information leaflets to child care centres, community health clinics, hospitals, and advertising in parenting magazines. The costs of such a program could potentially be substantial but are not quantifiable, as their magnitude would depend on the nature and extent of the educational activities envisaged. The cost of a ‘normal’ campaign for a hazardous consumer product would approximate $50,000 (whether as a stand-alone educational activity, or to support the introduction of a regulatory initiative), but the value of any such campaign needs to be assessed against the perhaps differing goals of the specific educational activity.

Benefits

Consumers

Information would be available to consumers on the risks posed to infants when using baby bathing aids. The campaign would also inform consumers how to minimise risks associated with the use of these products. The benefits of consumer education (if directed broadly enough) are likely to flow to a wider class of consumer than simply those purchasing new products, and would benefit parents who might be using second-hand baby bathing aids.

Industry and Small Business

The firms that supply baby bathing aids complying with the labelling requirements warning about dangers involved in usage of baby bathing aids would be able to use consumer knowledge to differentiate their product from the goods that are less satisfactory in meeting consumers’ needs. Consumer education has an obvious spin-off, in that it promotes safe usage of a manufacturer’s products. This is obviously in the interests of manufacturers, as it is likely in the long term to reduce costs of product liability insurance, etc.

The compliance cost involved in ensuring that inflexible government regulations are not inadvertently breached would also be avoided.

Government

Consumer education has the potential to reduce child injuries and deaths by raising community awareness of the risks associated with the use of baby bathing aids and guiding parents and carers in the use of these products. An education campaign could also be effective to convince parents not to leave infants unsupervised in the bathtub under any circumstances. Government would also benefit from the commensurate reduction in health care and other support costs associated with infant/child injuries or deaths.

3 Government Regulation

Costs

Consumers

Government regulation would eliminate from the new product market the baby bathing aids that did not carry permanent warning labels and may conceivably reduce product choice if manufacturers decide to withdraw from the market. In doing so, it may increase the overall cost of the product to consumers as the costs to business might reasonably be expected to be passed on through the supply chain. On the other hand, because baby bathing aids are not an essential nursery item, individual families need not necessarily be disadvantaged by the increased cost, as they can choose not to purchase this type of product.

Industry and Small Business

The manufacturing costs of baby bathing aids will increase, as manufacturers will be required to supply goods which comply with mandated labelling requirements. The size of this increase is unknown, but it could include initial costs in revising product designs and retooling manufacturing equipment. In the case of some manufacturers these costs will have already been incurred in consequence of the introduction of identical regulatory requirements in 3 States, but the proportion of the market supplied by manufacturers not presently complying with the proposed mandatory labelling requirements is unknown. There are not likely to be ongoing compliance costs for manufacturers.

The increased cost to suppliers of purchasing complying products would be passed on to consumers in increased retail prices. The effect of this on purchasing patterns is difficult to estimate, however, as there is no evidence as to whether the demand for these products is price-sensitive.

Suppliers of baby bathing aids that lack key labelling features may presently attract customers through price competition. In eliminating these products, the regulation would remove the suppliers’ market advantage and impact upon market share. Industry and small business would incur costs in ensuring knowledge of and compliance with the law.

Government

The introduction of a mandatory safety standard would result in a cost to Government in the administration and enforcement of the requirements. Costs include the establishment and review of the regulation, the associated education campaign to promote awareness of the regulation in the industry and the community, and enforcement activities such as market surveys and legal proceedings to ensure compliance.

The estimated cost of developing the mandatory safety standard is $10,000.

Based on Australian Competition and Consumer Commission (ACCC) estimates, the cost of mandatory standard enforcement using visual compliance checks of the product in the marketplace would be about $20,000 per annum.

The introduction of the proposed safety standard would be supported by an awareness campaign. Based on ACCC estimates and previous Consumer Affairs experience in promoting awareness of other mandatory safety standards, the demand for information brochures on baby bathing aids safety might total 100,000 copies per year, at an estimated annual cost of $5,500. The cost of adding the information to Departmental web-sites would be about $1,000, and the cost of advertising in magazines to raise awareness of the safety standard and safety hazards would be about $5,000 pa.

Combining these costs with the establishment costs amortised over the proposed 5 year duration of the mandatory standard, the overall cost to government for administration of the proposed standard and the supporting education campaign is estimated to be about $34,000 pa.

Benefits

Consumers

The proposed safety standard would benefit consumers by ensuring that all new baby bathing aids have specified key permanent warning labelling features, making it a constant reminder to consumers for the need to be safety aware when using these products.

Bathing aids with warning labels are expected to lead to an increased adult safety conscious awareness and a possible reduction in child injuries and deaths.

The introduction of a mandatory safety standard would be supported by a consumer education campaign similar to that described above. The campaign would advise consumers and suppliers of the mandatory standard, provide advice on the safe use of baby bathing aids and highlight the dangers of using older models currently in circulation that do not have the required safety features.

Industry and Small Business

Mandating the warning labelling requirements will establish a minimum standard throughout the supply chain, making it easier for retailers and small businesses to determine whether particular products should be supplied.

Mandatory requirements would enhance consumer confidence in the nursery furniture industry as a supplier of safe products.

Government

Government regulation would ensure that all new baby bathing aids on the market comply with key safety labelling requirements, thereby maximising the potential for these safety features to reduce child injuries and deaths.

The well-being of the community in general and especially those most vulnerable, such as young children, is a keystone of government policy, and the establishment of the regulation will reassure the community that product safety is being addressed. Although some consider it inappropriate to put a monetary value on a young child’s life, it can be inferred from a study on the value of a life that each child saved from accidental death can reasonably be valued at $2.5 million for Australian public policy purposes^{^[1]}. While the savings to the community achieved through avoidance of death and injury might better be categorised as a saving for the community generally rather than as a saving to government, it should be noted that the number of lives likely to be saved as a result of government regulatory intervention is impossible to estimate, as deaths and injuries may obviously continue to occur as a result of misuse of products presently in use. In consequence the savings to the community flowing from the mandatory labelling of baby bathing aids is not quantifiable.

CONSULTATION

INPAA has previously voiced support for self‑regulation as an appropriate strategy for controlling the safety of these products, and sees it as an opportunity for regulators and industry to work together to gain a positive product safety outcome. INPAA also believes that educational programs at an industry and community level would assist in improving product safety. It regards improved labelling requirements as a priority area to address. At the same time, industry believes that regulatory requirements could be improved to give clearer directions for correct usage, which would aid the carer. The use of graphic representations would also assist in conveying more effective safety messages.

The draft Regulations have been the subject of consultation with the Ministerial Council on Consumer Affairs (MCCA), the Standing Committee of Officials of Consumer Affairs (SCOCA), and the Consumer Products Advisory Committee (CPAC) (these bodies comprise Commonwealth, State Territory and New Zealand Consumer Affairs/Fair Trading Ministers/officers).

Other stakeholders involved in consultation on the Regulations include the following:

Infant & Nursery Products Association of Australia (representing a range of business interests at various levels of the supply chain)
Australian Consumers Association
Australian Retailers Association
Kidsafe
Children’s Hospital, Westmead.

Support for the proposed Commonwealth action is widespread, particularly in light of the fact that it mirrors regulatory action already taken by 3 jurisdictions. While concerns have been expressed that the proposed Regulations may not go far enough to address the problem, there is general acceptance that the Commonwealth’s review processes will enable it to ensure that optimal outcomes are achieved, and the current proposed action is an integral and necessary step towards achieving the desired objectives.

CONCLUSION and RECOMMENDED OPTION

A mandatory consumer product safety standard

A mandatory consumer product safety standard under the Trade Practices Act 1974 is the most efficient means of addressing the hazards associated with baby bathing aids, insofar as the economic and social benefits of reducing the incidence of infant death and injuries associated with baby bathing aids will substantially outweigh any direct or indirect costs involved.

Other options which seek to achieve the desired outcome are unlikely to be as effective as permanent labelling, as carers of infants are not provided with an ongoing reminder that children should never be left unattended in a bathing situation. While mandatory labelling may not necessarily reduce the incidence of deaths and injury to infants, it possesses the potential to do so, whereas other options do not.

The proposed mandatory standard would in essence mirror the New South Wales regulation, requiring baby bathing aids supplied on or after 1 August 2004 or other specified date to carry a prominent warning concerning dangers associated with the use of the product. The warning will be displayed on the upper surface of the goods so as to be visible when the product is in use, thereby providing parents/carers who are using the product an ongoing reminder of the dangers that are associated with leaving infants without adult supervision in a situation where drowning is possible. It is proposed that the warning require the wording and symbols as shown on the following page –

IMPLEMENTATION AND REVIEW

The mandatory standard will be implemented by registration of regulations on the Register of Legislative Instruments. The regulations will be enforced by the Australian Competition and Consumer Commission, and breaches will potentially give rise to either administrative action (such as the seeking of undertakings pursuant to section 87B of the Trade Practices Act 1974), or legal proceedings (including prosecution, injunctions and other remedial or punitive orders).

As a legislative instrument subject to the Legislative Instruments Act 2003, the mandatory standard will be exposed to ‘sunsetting’ pursuant to the relevant provisions of that Act and will require review at the relevant time to determine the need for its continued application.

Additional to this statutory review requirement, it is also intended that the adoption of a mandatory labelling regime be examined further and evaluated after an appropriate period has elapsed, to determine whether its effectiveness can be enhanced by other supplementary measures. The ACCC will be monitoring the effectiveness of the mandatory standard and will be reporting to both the Consumer Products Advisory Committee and to the Commonwealth Minister responsible for consumer affairs.

Significant work has been undertaken in various jurisdictions directed to developing performance based standards for baby bathing aids, but it is considered premature at this stage to speculate on whether such work will be capable of leading to improved outcomes. If a performance based standard cannot be developed and infants continue to die or be injured in significant numbers, notwithstanding the introduction of the proposed mandatory labelling requirements, then it may be necessary for all jurisdictions to further consider the feasibility /desirability of banning the product, despite the community reservations concerning such a suggestion.

^{^[1]} Abelson, P., 2003, ‘The value of life and health for public policy’, Economic Record, 79, S2-S13

Commonwealth Numbered Regulations - Explanatory Statements

explanatory Statement

Issued by the Authority of the Parliamentary Secretary to the Treasurer

1 Industry Self-Regulation

Costs

Consumers

2 Consumer Education

Costs

Consumers

Benefits

Industry and Small Business

Government

3 Government Regulation

Costs

Consumers

Industry and Small Business

Benefits

Industry and Small Business

Government