Defaming Businesses Doesn't Protect Consumers

If the Consumer Product Safety Commission doesn't have enough data to enact a rule, it shouldn't be making informal recommendations either.

Richard Trumka, a commissioner of the Consumer Product Safety Commission (CPSC), announced in April 2024 that major retailers, including Target and Walmart, would stop selling weighted baby swaddles. Trumka had sent letters to companies using his official CPSC letterhead, falsely insinuating that the Commission had determined the product to be unsafe and associated with Sudden Infant Death Syndrome. Dreamland Baby, a popular manufacturer of weighted infant sleep products, is suing the CPSC and Trumka for circumventing the formal rulemaking process to baselessly malign their product.

The CPSC rejected Trumka's proposal to mandate standards for weighted infant sleep products in November 2023, according to the New Civil Liberties Alliance, the public interest law firm representing Dreamland Baby in the case. Though the CPSC did not promulgate product safety standards, the Commission informally updated its Safe Sleep guidance in January 2024 to say, "Don't use weighted blankets or weighted swaddles."

The CPSC is tasked with protecting the public against unreasonable risks of injury associated with consumer products. To this end, the CPSC is charged with implementing rules and conducting "research, studies, and investigations on the safety of consumer products and on improving the safety of such products." The CPSC may not delegate product safety determinations to other federal agencies. The CPSA requires public disclosures about the safety of products to be "accurate and not misleading," but the Commission's guidance is both inaccurate and misleading.

During the Commission's FY 2024 planning meeting, Chairman Alexander Hoehn-Saric admitted that the CPSC had "not conducted the research necessary" to publish a mandatory safety standard regarding infant weighted sleep products. Despite this admitted lack of data, the Commission issued a product safety determination on such products by updating its Safe Sleep guidance. By circumventing the rulemaking process, the CPSC exceeded its statutory authority, flouted the Administrative Procedure Act, and deprived Dreamland Baby of its Fifth Amendment Due Process Clause, according to the lawsuit.

Invoking the CPSC's Safe Sleep guidance, Trumka issued an official statement encouraging retailers to "take precautions today," citing an agreement between the Commission, the Centers for Disease Control and Prevention (CDC), the National Institutes of Health (NIH), and the American Academy of Pediatrics (AAP) about the danger posed by infant weighted sleep products. On the basis of this supposed scientific unanimity, he also claimed on X that weighted infant sleep products "pose serious threats to the lives of babies."

The science supposedly backing up this inter-agency agreement is dubious, not rigorous. The CDC and NIH did not research the relationship between infant weighted sleep products and infant deaths but credulously echoed the AAP's 2022 Guidance, according to the suit. The AAP's guidance itself is predicated on a single randomized study of 16 infants suffering from neonatal abstinence syndrome, which "found no adverse events when a 1-pound weighted blanket was placed on each infant for 30 minute observed episodes," as summarized by health economist Emily Oster.

In August 2024, the CPSC found five fatalities associated with weighted infant sleep sacks and swaddles between January 2011 and April 2024, three of which occurred in the presence of "multiple unsafe…sleep practices." This means that, out of the 160-incident dataset, weighted swaddles may be responsible for at most two deaths.*

Two infant deaths over any period of time is two too many. Still, it's important to remember that no product or human activity is perfectly safe. Discouraging retailers from selling and parents from using weighted sleep products for infants (especially through informal guidance and letters) may put more children in harm's way by perversely incentivizing parents to use inferior substitutes instead of weighted swaddles.

Despite fearmongering from the CPSC, weighted swaddles have been used to take care of sick children. Dreamland Baby has donated their weighted swaddles to over 250 neonatal intensive care units (NICUs), according to Ellie Miller, the company's vice president of marketing and communications. These NICUs use weighted infant sleep products to soothe infants suffering from Neonatal Abstinence Syndrome. Presuming fidelity to the Hippocratic Oath, medical professionals would not accept such products from Dreamland Baby if they believed them to be deleterious to infant health.

*CORRECTION: The original version of this article misstated the number of deaths for which weighted baby swaddles were causally responsible. The CPSC incident dataset was associational and does not make causal claims.