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AGO 1974 No. 17 - August 07, 1974
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Slade Gorton | 1969-1980 | Attorney General of Washington

CHILDREN ‑- HEALTH ‑- SALE ‑- FIRE ‑- SALE OF FLAMMABLE CHILDREN'S SLEEPWEAR

(1) The term "children's sleepwear" as defined in § 3, chapter 211, Laws of 1973, 1st Ex. Sess., (RCW 70.110.030) includes both infant sizes 0-6X and children's sizes 7-14; in addition, it also includes junior or adult sizes of sleepwear which are the physical equivalent of those children's sizes even though not designated as such.

(2) The provisions of chapter 211, Laws of 1973, 1st Ex. Sess., are currently enforceable within the purview of the preemption clauses of the Federal Flammable Fabrics Act and Consumer Product Safety Act, and their enforceability with respect to children's sizes 7-14 or the equivalent is not dependent upon the effectiveness of certain federal regulations establishing flammability standards for those sizes of children's sleepwear which are not scheduled to take effect until May 1, 1975.

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                                                                  August 7, 1974

Honorable Robert "Bob" Curtis
State Representative, 12th District
P.O. Box 0188
East Wenatchee, Washington 98801

                                                                                                                 Cite as:  AGO 1974 No. 17

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on several questions which we paraphrase as follows:

            (1) Does the term "children's sleepwear" as defined in § 3, chapter 211, Laws of 1973, 1st Ex. Sess., include both infant sizes 0-6X and children's sizes 7-14?

            (2) If question (1) is answered in the affirmative, does the term "children's sleepwear" as thus defined also include junior or adult sizes of sleepwear which are physically equivalent of those children's sizes even though not designated as such?

            (3) Is chapter 211, Laws of 1973, 1st Ex. Sess., currently enforceable in view of the preemption clauses contained in the federal Flammable Fabrics Act (15 U.S.C. § 1191, et seq.)  [[Orig. Op. Page 2]] and Consumer Product Safety Act (Public Law 92-573)?

            (4) To the extent that chapter 211, Laws of 1973, 1st Ex. Sess., regulates the sale of sleepwear in children's sizes 7-14 or the equivalent, is this law currently enforceable prior to the effective date of certain newly adopted federal regulations for those sizes of children's sleepwear which are not currently scheduled to take effect until May 1, 1975?

            We answer all of these questions in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Your request pertains to an act of the 1973 legislature, chapter 211, Laws of 1973, 1st Ex. Sess., designated by § 1 as the "Flammable Fabrics Act."  This act has since been codified as chapter 70.110 RCW.

            By § 4 of the act (RCW 70.110.040), the legislature provided that:

            "It shall be unlawful to manufacture for sale, sell, or offer for sale any new and unused article of children's sleepwear which does not comply with the standards established in the Standards for the Flammability of Children's Sleepwear (DOC FF 3-71), 36 F.R. 14062 and the Flammable Fabrics Act, 15 U.S.C. 1191-1204."

            The key term "children's sleepwear," as used in this substantive section of the act, is defined by § 3(2), now RCW 70.110.030, as follows:

            ". . .

            (2) 'Children's sleepwear' means any product of wearing apparel from infant size up to and including size fourteen which is sold or intended for sale for the primary use of sleeping or activities related to sleeping, such as nightgowns, pajamas, and similar or related items such as robes, but excluding diapers and underwear."

             [[Orig. Op. Page 3]]

            Questions (1) and (2):

            Your first two questions inquire as to the scope of this last quoted definition.

            Initially, you have asked whether the term "children's sleepwear" is to be construed as including children's sizes 7-14 as well as infant sizes 0-6X.1/   If such is the case, your second question asks whether the designation of "children's sizes 7-14" is also to be broadly construed to include junior or adult sizes of sleepwear which are the physical equivalent of those children's sizes even though not designated as such.

            Your first question, in our opinion, is clearly answerable in the affirmative on the basis of the plain and unambiguous language of § 3(2),supra, i.e.,

            "'Children's sleepwear' means any product of wearing apparel from infant size up to and including size fourteen. . ."  (Emphasis supplied.)

            In light of this lack of ambiguity, there is no basis upon which to reason that the legislature did not intent to include children's sizes 7-14 in its definition, as well as infant sizes 0-6X.  As our supreme court has many times stated:

            ". . .  If the language is clear and the  [[Orig. Op. Page 4]] meaning plain, the statute needs no construction and the courts will neither read into it things which are not there nor amend it by construction. . . ."  State ex rel. Tarver v. Smith, 78 Wn.2d 152, 155, 470 P.2d 172 (1970).

            Likewise, we would also answer question (2) in the affirmative ‑ noting, particularly, the declaration of findings and purpose set forth by the legislature in § 2 (RCW 70.110.020) of the act as follows:

            "The legislature hereby finds and declares that fabric related burns from children's sleepwear present an immediate and serious danger to the infants and children of this state.  The legislature therefore declares it to be in the public interest, and for the protection of the health, property, and welfare of the residents of this state to herein provide for flammability standards for children's sleepwear."

            In this context, it is clear that a narrow construction of the size designations in § 3(2),supra, could well defeat the intent of the legislature.  Under such a construction the prohibition contained in this 1973 act could be completely avoided by a manufacturer's use of a size designation that is merely semantically different from the general classification of sizes normally followed ‑ as set forth in the Department of Commerce Voluntary Standards footnoted above.  Since the intent of the legislature was to regulate in the area of children's sleepwear sizes 7-14, it follows that equivalent sized sleepwear must also conform to the fabric standards required by the act whether or not the size designation on the clothing so conforms.  To apply a narrower construction of the act would defeat it and the legislature's intent, and consequently such a strict construction cannot be adopted.2/

             [[Orig. Op. Page 5]]

            Questions (3) and (4):

            The issues raised by these two questions concern the relationship between chapter 211,supra, and two recent federal statutory enactments.  The first of these is the Flammable Fabrics Act, 15 U.S.C. § 1191, et seq., as amended by Public Law 90-189 in 1967, and the second is the Consumer Product Safety Act, Public Law 92-573, by which Congress established the Consumer Product Safety Commission and transferred administrative responsibility to it for the Flammable Fabrics Act.

            Both of these two federal acts contain preemption clauses, and your third question has to do with the impact of those clauses upon the enforceability of so much of chapter 211,supra, as applies to sleepwear in children's sizes 7-14 or the equivalent.

            As amended by § 10, Public Law 90-189, the Flammable Fabrics Act states that:

            "This chapter is intended to supersede any law of any State or political subdivision thereof inconsistent with its provisions."

            Likewise, § 26 of the Consumer Product Safety Act, in speaking of such consumer product safety standards as may be adopted under its provisions, states that:

            "(a) Whenever a consumer product safety standard under this Act is in effect and applies to a risk of injury associated with a consumer product, no State or political subdivision of a State shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling  [[Orig. Op. Page 6]] of such product which are designed to deal with the same risk of injury associated with such consumer product,unless such requirements are identical to the requirements of the Federal standard.

            ". . .

            "(c) Upon application of a State or political subdivision thereof, the Commission may by rule, after notice and opportunity for oral presentation of views, exempt from the provisions of subsection (a) (under such conditions as it may impose) a proposed safety standard or regulation described in such application, where the proposed standard or regulation (1) imposes a higher level of performance than the Federal standard, (2) is required by compelling local conditions, and (3) does not unduly burden interstate commerce."  (Emphasis supplied.)

            Both of these preemption clauses, however, expressly exclude from their coverage those state requirements which are consistent, or identical, to the corresponding federal requirements or standards with which the state requirements are to be compared.  Therefore, if the flammability standards with which "children's sleepwear" sold in this state must comply are deemed to be the same standards as are applicable to such sleepwear at the federal level, neither of the two above‑quoted federal preemption clauses will bar the enforcement of the state law.

            In the case of children's sleepwear in infant sizes 0 through 6X, it is clear to us that this is precisely what was intended by the legislature.  We again quote the language of § 4, chapter 211, supra, (RCW 70.110.040) as follows:

            "It shall be unlawful to manufacture for sale, sell, or offer for sale any new and unused article of children's sleepwear which does not comply with the standards established in the Standard for the Flammability of Children's Sleepwear (DOC FF 3-71), 36 F.R. 14062 and the Flammable Fabrics Act, 15 U.S.C. 1191-1204."

             [[Orig. Op. Page 7]]

            The first of the two federal reference in this statute ‑ namely, the Standard for the Flammability of Children's Sleepwear (DOC FF 3-71), 36 F.R. 14062 ‑ is a federal regulation, adopted in July of 1971, and effective one year later (thus, already in effect when the Washington legislature enacted chapter 211,supra) which details the fabric flammability standards that must be met throughout the nation for children's sleepwear in those smaller infant sizes.

            On the other hand, although comparable federal regulations covering children's sizes 7 through 14 have also recently been adopted, these regulations will not become effective until May 1, 1975.  See, 39 F.R. 15210, et seq.  In the meantime, the only federal flammability standards which currently can be said to govern those size of children's sleepwear are certain general fabric flammability standards established pursuant to the Flammable Fabrics Act itself, 15 U.S.C. §§ 1191-1204,3/ for wearing apparel generally.  But, as will be seen from again carefully reading § 4, chapter 211,supra, the legislature also made a reference to that federal legislation in framing the provisions of this section of its 1973 enactment.

            Quite apparently, if we were required to read this state act as requiring children's sleepwear in sizes 7-14 or the equivalent to meet either the fabrics standards of the existing federal regulations governing infant sizes 0 through 6X or the not yet effective standards governing children's sizes 7 through 14, we would have to then conclude that, in all probability, our state law is unenforceable with respect to those larger sizes because of an inconsistency between what would thus be the state requirement for those sizes and what is currently the federal requirement with respect thereto.  But because of the legislature's inclusion, in § 4, supra, of an additional reference to the Flammable Fabrics Act itself, it is possible for us to avoid this dilemma and, instead, read the state act as follows:

            Insofar as children's sleepwear in infant sizes 0 through 6X is concerned, it is unlawful, under chapter 211, supra, for such sleepwear to be manufactured for sale, sold, or offered for sale in this state unless its fabric is in conformity with the federal standards for those sizes  [[Orig. Op. Page 8]] contained in the regulations published in 36 F.R. 14062, supra.  And likewise, in the case of children's sleepwear in sizes 7 through 14, or the equivalent, it is unlawful for such sleepwear to be manufactured for sale, sold, or offered for sale in this state unless it is made of fabric which complies with the existing federal standards governing wearing apparel in general that have been adopted from time to time under the Flammable Fabrics Act itself.

            We believe that this is a permissible reading of the state statute, and one which should be followed in order to avoid what otherwise would be a serious barrier to the enforceability of so much of our new law as covers sleepwear for children in sizes 7 through 14 or the equivalent.  By so reading the law, we may answer your third question in the affirmative and, by the same token, dispose of any problem arising under your fourth question by reason of the fact that the federal government's above‑noted new regulations for children's sleepwear in sizes 7 through 14 are not yet effective.4/

             It is hoped that the foregoing will be of some assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


JOHN H. BRIGHT
Senior Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/These size reference are based upon United States Department of Commerce Voluntary Standards, Commercial Standard 151-50, "Body Measurements for the Sizing of Apparel for Infants, Babies, Toddlers, and Children"; Commercial Standard 153, "Body Measurements for the Sizing of Apparel for Girls"; and Commercial Standard 155, "Body Measurements for the Sizing of Boys' Apparel."  See, § 3(4) of the act which includes all three of these voluntary standards in its definition of the phrase "infant size up to and including size six-x" ‑ a phrase which, we note, is nowhere used in the substantive portions of the act itself.

2/In so concluding we have not overlooked the fact that, by virtue of the penalties provided for in § 6 thereof, chapter 211, supra, is a penal statute.  However, even though such statutes are to be strictly construed against the state and in favor of an accused, such strict or narrow construction may not be used to defeat the intent of the legislature.  State v. Rinkes, 49 Wn.2d 664, 306 P.2d 205 (1957).

3/See, in particular, 15 U.S.C. § 1193.

4/However, of course, once these new federal regulations do become effective next year, a conflictwill exist between the federal and state standards for sleepwear in children's sizes 7-14 or the equivalent unless, in the meantime, the state law is appropriately amended to pick up these new federal standards.

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