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In her book, “Buyer Aware,” CR’s president and CEO, Marta L. Tellado, tells how Consumer Reports uncovered the hidden deaths of nearly 100 babies due to a poorly regulated product, the Fisher-Price Rock ‘n Play Sleeper
Here’s the good news: Consumers are actually much safer now than they were at the turn of the 20th century, thanks to decades of sustained determination by consumers and advocacy groups to pressure companies and governments to put consumer needs first.
But there’s much more work to do, as Consumer Reports president and CEO Marta L. Tellado makes clear in her new book, “Buyer Aware: Harnessing Our Consumer Power for a Safe, Fair, and Transparent Marketplace” (PublicAffairs).
“Buyer Aware” shines a light on a wide range of high-stakes issues facing today’s consumers, from the safety of the food we eat to the increasing challenge of keeping our personal data out of the hands of people who want to exploit it. The book also offers actionable advice, including ways to stay on top of the latest product recalls and reduce the amount of information being collected by tech platforms such as Facebook.
In “Buyer Aware,” Tellado shares how her family’s journey emigrating from Cuba to the U.S. when she was 3 years old helped spark her desire to work for organizations with missions focused on achieving civil rights, striving for economic fairness, and improving public safety. Tellado has been CR’s president and CEO since 2014. (“Buyer Aware” will be released Sept. 20 and can be preordered at BuyerAware.CR.org. All proceeds will go to support CR’s work as a nonprofit.)
In the following excerpt, Tellado details just one of the consumer victories that CR has achieved in recent years: ridding the marketplace of dangerous infant sleepers.
Her story of CR’s reporting and advocacy reveals that many products on store shelves that we assume have been deemed safe by government agencies have undergone no such approvals. In fact, 97 percent of Americans believe that products are tested for safety before they’re shipped to stores, according to a July 2020 CR nationally representative survey of 2,031 U.S. adults. The truth is, relatively few are required to be tested—even when they’re designed to be used by children.
One universal truth about newborn babies is that they don’t sleep through the night. They’re not supposed to. They need to eat.
Another is that babies’ nighttime schedules will exhaust their parents in a soul-eroding way that feels as if it will last forever. I remember when my brother Val, as a new parent, would nod off in the middle of our conversations. That lasted several years, until his girls slept through the night. I tried not to take it personally.
So when the Fisher-Price Rock ’n Play Sleeper, an inclined vibrating and rocking seat for infants, burst onto the market in October 2009, parents like my brother heralded it as a lifesaver.
Brands like Fisher-Price have earned the trust of consumers over the course of decades. When I was a babysitter in the 1970s, nearly every family I worked for owned the company’s family-farm playset, or its telephone pull toy. The brand was (and continues to be) everywhere that kids are. Generations of parents have almost come to view companies like Fisher-Price as friends. We don’t expect friends to betray us.
In 2008, when Fisher-Price toy designer Linda Chapman came up with the blueprint for the Rock ’n Play Sleeper, she had no experience with products aimed at infants, but drew on her own days as the mother of an infant son kept awake by reflux. Her design had children reclining at a 30-degree angle on a frame with a restraint harness and sidewalls, and a head support made of soft bedding. At that angle, Chapman figured, reflux wouldn’t bother infants, while the rocking motion would lull them to sleep so Mom and Dad could get a break.
Unfortunately, Chapman and her employer didn’t heed a 1994 directive from the American Academy of Pediatrics that babies should sleep alone on their backs on a firm, flat surface free of soft bedding and restraints. Babies’ heads are too heavy for their developing necks to control, the pediatricians said, and when they sleep on an incline their heads can loll forward or to the side and block their windpipes. As for reflux, pediatric gastroenterologists say that sleeping on an incline doesn’t help and can actually worsen the condition.
Photos: Courtesy of Sara Thompson, Dallas and Sarah Bertola, Erika Richter Photos: Courtesy of Sara Thompson, Dallas and Sarah Bertola, Erika Richter
Even so, Mattel’s hazard-analysis team didn’t sound the alarm. No pediatricians with sleep expertise were consulted. Fisher-Price marketed the Rock ’n Play Sleeper in ads and on the packaging as suitable for all-night sleep, but did no testing to prove it was safe for that purpose. The thirty-degree angle they chose for the product was based on a hunch.
Less than a year after the Rock ’n Play Sleeper went on sale, the Consumer Product Safety Commission (CPSC), the federal agency responsible for policing dangerous products, created new standards based on medical recommendations that set a maximum incline of ten degrees for bassinets. Instead of recalling the Rock ’n Play Sleeper, with its thirty-degree angle, Fisher-Price asked the agency to create a new category for sleepers like the Rock ’n Play so the new bassinet rules wouldn’t apply to the Rock ’n Play. The agency complied. So the key feature that made the product unsafe, its angle, became the very thing that essentially exempted it from government safety standards.
Policymakers in other countries took a distinctly different approach. In 2011, the Australian government said the Rock ’n Play couldn’t be sold there because of asphyxiation danger. Soon after, the British Royal College of Midwives told Fisher-Price that it wouldn’t endorse the product as a sleeper because it was suitable only for short periods of supervised wakefulness. Canada permitted the product to be marketed only as the Rock ’n Play Soothing Seat rather than as a sleeper.
Meanwhile, doctors in the U.S. raised alarms. When a Georgia pediatrician called and wrote to Fisher-Price in February 2013 to warn that the product was unsafe for infant sleep, the company emailed back that “the Rock ’n Play Sleeper complies with all applicable standards.” In fact, there were no standards to comply with at the time: The Rock ’n Play Sleeper no longer qualified as a bassinet, so it didn’t need to adhere to bassinet standards, and the new “inclined sleeper” category wouldn’t officially be created until 2015. And litigation later revealed that the company knew in 2018 that the sleeper had been linked to at least fourteen infant deaths.
As the Rock ’n Play’s popularity grew, the number of related deaths mounted, among them a two-month-old girl in Hidalgo County, Texas, found on her back in the sleeper with her chin on her shoulder, her airway cut off; a two-month-old boy in Jacksonville, Florida, discovered with blood coming out of his nose and mouth after a nap in his sleeper; and a three-month-old boy in Leesville, Louisiana, found with cheeks cold, pacifier in mouth, not breathing.
Sara Thompson, of Nazareth, Pennsylvania, told the CPSC in December 2012 that her son Alex had died in the Rock ’n Play Sleeper in September 2011. The agency passed the information to Fisher-Price’s risk-management team, which documented the incident as an “injury flag.”
Some babies, like five-month-old Ezra Overton of Alexandria, Virginia, were found dead on their bellies after rolling over in the Rock ’n Play. He’d been put to sleep on his back one evening shortly before Christmas 2017 and was found in the middle of the night with his face pressed against the sleeper’s padding. “He was blue, and his body was, it was hard, and he didn’t feel real,” said Ezra’s dad, Keenan Overton.
As the death toll rose, Fisher-Price declined to pull its product from the market or make design changes. During a July 2016 deposition, Kitty Pilarz, the director of product safety for Fisher-Price’s parent company, Mattel, was asked to confirm that Fisher-Price had not changed how it marketed the Rock ’n Play Sleeper despite evidence of the deaths. Her reply: “Correct.”
“Is there a particular number [of] children that have to die before that’s going to be looked into?” the plaintiff’s lawyer asked. Pilarz didn’t answer.
Despite the lawsuits, the CPSC also stayed largely mum on the growing number of deaths. The reason: Section 6(b) of the Consumer Product Safety Act.
Section 6(b) requires the CPSC to seek permission from a manufacturer before it publicly releases information about the company or its products, even when it is a warning about injuries or deaths. It also allows companies to negotiate the language the agency uses in press releases in the event of a safety alert or product recall. Proponents say that by giving companies a chance to review safety concerns first, the law prevents the government from unfairly damaging a company’s reputation.
I think Section 6(b) is an abomination that allows defective products to continue to kill or injure consumers, as was the case with the Rock ’n Play. Congress ought to toss Section 6(b) in the trash. “People die because of Section 6(b),” said Elliot Kaye, a former CPSC chairman. “It’s that simple.”
Even without the constraints of Section 6(b), the CPSC doesn’t have the ability to recall products on its own. The agency is required either to get the company’s approval or to sue the company for a recall—an expensive, time-consuming step it rarely takes.
Eventually, on May 31, 2018, nearly nine years after the Rock ’n Play Sleeper’s launch, the CPSC issued a vague and mild warning in the form of an alert posted on its website titled, “Caregivers Urged to Use Restraints with Inclined Sleep Products.” Only in the alert’s fourth paragraph did the CPSC mention infant deaths “associated with inclined sleep products.” And because it didn’t list products by name, many parents familiar with the Rock ’n Play Sleeper would have no idea what an “inclined sleep product” was.
In early 2019, CR reporter Rachel Rabkin Peachman and the CR content team were reviewing data they’d requested from the CPSC. It included information on product failures, injuries, and deaths that manufacturers, health care providers, and consumers had provided to the agency—data that Consumer Reports analyzes regularly. This time, there was something unusual: the manufacturers and product names had not been edited out, as Section 6(b) requires.
There in plain view were details of as many as twenty-nine infant deaths linked to the Fisher-Price Rock ’n Play Sleeper and other deaths in similar products, such as inclined sleepers made by Kids II. For the first time, the vast scope of the deaths, as well as the brands that caused them, were exposed to the public.
Contacted for comment, the agency wrote to CR demanding that the data be destroyed and that nothing be published based on it. How absurd. I wouldn’t have believed it except that I read those letters, with their threatening tone, and backed the CR team’s desire to press forward.
On April 5, 2019, Fisher-Price and the CPSC issued a joint announcement warning that ten infants had died in the Rock ’n Play since 2015, after they had “rolled from their back to their stomach or side, while unrestrained.”
CR immediately went to Fisher-Price to set the record straight: Yes, ten infants had died in the circumstances cited, but the data showed at least twenty-nine infants’ deaths had been linked to the Rock ’n Play. A Fisher-Price spokesperson confirmed to CR that the company knew of “approximately thirty-two fatalities since the 2009 product introduction” but said it did “not believe any deaths have been caused by the product.”
They were blaming parents for the tragedies.
On April 8, 2019, CR published an article on our website connecting the Rock ’n Play to dozens of infant deaths, and we emphatically called for the product’s recall. The findings aired nationally on every evening news program and were published online and in newspapers across the country.
Within two weeks, Fisher-Price went from downplaying a problem to recalling nearly five million sleepers. By the end of the month, Kids II recalled all of its nearly 700,000 inclined infant sleepers.
It took more time to ensure that secondary-market sellers stopped offering the sleepers even though recall laws forbid resale. While eBay uses filters and a team of employees that scours the site for illegal goods, resale platforms like Facebook and Craigslist rely only on warnings, deep in their terms-of-service agreements, urging users not to sell banned products. CR discovered one of the sleepers on sale for $25 on Craigslist in August 2021, more than two years after the original recall.
In the 11 years following the sleeper’s release, about 100 infants died. The product might still be on the market today if it weren’t for an embarrassing clerical error by the CPSC. It shouldn’t take a fluke bureaucratic blunder to keep babies safe.
CR’s investigation later broadened to include other products hazardous for infant sleep, such as in-bed sleepers, crib bumpers, pillows, and loungers. CR’s advocates urged policymakers to ban all infant sleep products that don’t conform to expert medical recommendations that babies should be placed to sleep alone on their backs on a firm, flat surface in a safe sleeping environment.
In the summer of 2022, government rules took effect mandating that any infant product marketed or intended for sleep must meet an already existing federal standard for infant sleep products like a crib, bassinet, or play yard. Also in 2022, President Biden signed the Safe Sleep for Babies Act, which will fully ban both inclined sleepers and padded crib bumpers when it takes effect no later than this November.
ACTION TAKEN: CPSC proposes new standards for bassinets, requiring them to be firm and flat.
ACTION TAKEN: Fisher-Price asks CPSC to exempt Rock ’n Play from the bassinet standard. CPSC agrees.
ACTION TAKEN: Fisher-Price and CPSC learn Sara Thompson’s son died in the Rock ’n Play in September 2011.
INFANT DEATHS: 8 deaths in rocker-like products are cited by CPSC in proposed regulations for infant inclined sleepers.
ACTION TAKEN: In a deposition, a Fisher-Price employee admits 14 deaths are tied to the Rock ’n Play.
ACTION TAKEN: CPSC issues a warning urging caregivers to use restraints with inclined sleep products.
INFANT DEATHS: 10 deaths are cited by CPSC and Fisher-Price in a joint alert to consumers.
INFANT DEATHS: 32 deaths are confirmed by Fisher-Price after CR identified 29.
ACTION TAKEN: CR publishes its investigation and asks for a recall. Four days later, Fisher-Price recalls all 4.7 million Rock ’n Play Sleepers.
INFANT DEATHS: 50 deaths are cited by CPSC when it announced plans to better regulate the sleepers.
INFANT DEATHS: 73 deaths are cited by CPSC in its proposal for stricter safety standards.
ACTION TAKEN: Major retailers agree to stop selling inclined sleepers.
INFANT DEATHS: 97 deaths are acknowledged by Fisher-Price exec Chuck Scothon during a Congressional hearing.
ACTION TAKEN: President Biden signs the Safe Sleep for Babies Act, which will ban inclined sleepers and padded crib bumpers.
Editor’s Note: This article has been adapted from “Buyer Aware: Harnessing Our Consumer Power for a Safe, Fair, and Transparent Marketplace,” by Marta L. Tellado. Copyright © 2022. Available from PublicAffairs, an imprint of Perseus Books, LLC, a subsidiary of Hachette Book Group.
The excerpt also appeared in the October 2022 issue of Consumer Reports magazine.
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