Joshua D. Levine, Esq.
0-99 Plaza Rd.
Fair Lawn, NJ 07410
Dear Mr. Levine:
This responds to your letter dated July 8, 2010 asking about safety regulations for a device your client would like to manufacture, called the Sleepyhead. You state that the device is an accessory to a child car seat. The product is simply fitted over the car seat to prevent the childs head from slumping too far forward while a child is asleep. Photographs you enclose show the Sleepyhead used with a sleeping child in a child restraint. One end of the product appears to be fitted with elastic over the top of the restraints seat back, and the other end is fitted over the top of a childs head like a shower cap.
By way of background information, the National Traffic and Motor Vehicle Safety Act ("Safety Act," 49 U.S.C. 30101 et seq.) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve or certify any vehicles or items of equipment. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. The agency periodically tests vehicles and items of equipment for compliance with the standards.
There is currently no Federal motor vehicle safety standard (FMVSS) that directly applies to an accessory item like the Sleepyhead. Under the authority of the Safety Act, NHTSA has issued Standard No. 213, Child Restraint Systems, which specifies requirements for child restraint systems used in motor vehicles. However, Standard No. 213 applies only to new child restraint systems and not to aftermarket components of a child restraint system, such as the Sleepyhead.
However, there are other Federal laws that indirectly affect the manufacture and sale of the device. Under the Safety Act, the product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, your client is subject to the requirements in the Safety Act concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those responsibilities. In the event that your client or NHTSA determines that the product contains a safety-related defect, your client would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.
In addition, manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to 30122(b) of the Safety Act, which states, in pertinent part: "A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative ... any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter...." It appears unlikely from the nature of the product that it would be installed in vehicles by commercial businesses. However, if the product were to be installed by persons listed in 30122(b), the entities should ensure that the installation does not compromise the safety protection provided by a child restraint system.
The make inoperative prohibition does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles or items of motor vehicle equipment. Nonetheless, NHTSA urges owners not to undertake modifications that would reduce the efficacy of any safety device or element of design. Products should not constrain the childs head against the child restraint in a manner that would be harmful to a child while riding in the child restraint or in a crash.
States have the authority to regulate the manner in which vehicles or equipment are used. You should thus check with State law to see if there are restrictions on the use of equipment items such as the Sleepyhead.
I hope this information is helpful. If you have further questions, please contact Deirdre Fujita of my staff at (202) 366-2992.
O. Kevin Vincent