16 C.F.R. § 1610.37

Reasonable and representative tests to support guaranties

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(a) Purpose. The purpose of this § 1610.37 is to establish requirements for reasonable and representative tests to support initial guaranties of products, fabrics, and related materials which are subject to the Standard for the Flammability of Clothing Textiles (the Standard, 16 CFR part 1610).

(b) Statutory provisions. (1) Section 8(a) of the Act (15 U.S.C. 1197(a)) provides that no person shall be subject to criminal prosecution under section 7 of the Act (15 U.S.C. 1196) for a violation of section 3 of the Act (15 U.S.C. 1192) if such person establishes a guaranty received in good faith to the effect that the product, fabric, or related material complies with the applicable flammability standard. A guaranty does not provide the holder any defense to an administrative action for an order to cease and desist from violation of the applicable standard, the Act, and the Federal Trade Commission Act (15 U.S.C. 45), nor to any civil action for injunction or seizure brought under section 6 of the Act (15 U.S.C. 1195).

(2) Section 8 of the Act provides for two types of guaranties:

(i) An initial guaranty based on “reasonable and representative tests” made in accordance with the applicable standard issued under the Act; and

(ii) A guaranty based on a previous guaranty, received in good faith, to the effect that reasonable and representative tests show conformance with the applicable standard.

(c) Requirements. (1) Each person or firm issuing an initial guaranty of a product, fabric, or related material subject to the Standard shall devise and implement a program of reasonable and representative tests to support such a guaranty.

(2) The term program of reasonable and representative tests as used in this § 1610.37 means at least one test with results demonstrating conformance with the Standard for the product, fabric or related material which is the subject of an initial guaranty. The program of reasonable and representative tests required by this § 1610.37 may include tests performed before the effective date of this section, and may include tests performed by persons or firms outside of the territories of the United States or other than the one issuing the initial guaranty. The number of tests and the frequency of testing shall be left to the discretion of the person or firm issuing the initial guaranty.

(3) In the case of an initial guaranty of a fabric or related material, a program of reasonable and representative tests may consist of one or more tests of the particular fabric or related material which is the subject of the guaranty, or of a fabric or related material of the same “class” of fabrics or related materials as the one which is the subject of the guaranty. For purposes of this § 1610.37, the term class means a category of fabrics or related materials having general constructional or finished characteristics, sometimes in association with a particular fiber, and covered by a class or type description generally recognized in the trade.

Notes of Decisions

Cited in 2 cases, 1996–2010 · leading case: Luftman v. Fashion 21, Inc., 31 Misc. 3d 274 (N.Y. Sup. Ct. 2010).

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Luftman v. Fashion 21, Inc., 31 Misc. 3d 274 (N.Y. Sup. Ct. 2010). “1 [d] [1] [formerly 16 CFR 1610.37 (d) (1)]). Dr. Abraham testified that the skirt met this standard.”

Askenazi v. Hymil Mfg. Co., 170 Misc. 2d 461 (N.Y. Sup. Ct. 1996). “6 ounces or more per square yard, it was exempt from any requirement for *464 testing for flammability, and that, instead, Cranston was only required to file a "continuing guaranty” for the fabric with the Consumer Product Safety Commission (CPSC) (see, 16 CFR 1610.37 [d] [1]).…”

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