Advisory opinion letter

April 21,1970 Gentlemen:

This letter is being written because of serious problems created by the above Standard for members of two associations which I represent, if the Standard is held to be applicable to them. Prompt attention to this matter is urgently requested for the reason: that if the Standard is not ruled to be inapplicable, the time is alr eady running for taking this question to the United States Cireuit Court. of Appeals.

The two associations are the Institute of Industrial Launderers and the Kex National Association: These associations have as members over 750 laundry plants, whose total volume of business is in excess of 800 million dollars. These companies, among other services provided to the public, rent “entrance” mats to commercial concerns, government and business establishments.

A study of the above Standard suggests that its pr imary aim is to control the flammability of those pile floor-coverings, both in the prirate and public sectors, which are permanently installed for esthetic effects or functional benefits. More basically, the Standard seems designed to protect. a housewife and her family when she buys and uses a carpet as well as eliminating the installation or use of carpeting in such places as hotels, when the carpeting may be dangerously flammable. It should also be noted that the purpose of the Standard, as stated in ADVISORY OPINIONS -WITH: REQUESTS “Ttinaoruty areas the Notice, is to protect the public against unréasonable risk of the occurrence of fire arising from the hazards of rapid flash burning or continuous or slow burning or smoldering and that the Standard “is limited to carpets and rugs” which currently. present such unreasonable risks. The rental entrance mats do not present such unreasonable risks, as other carpets or rugs may. Their very name describes their function. They are normally comparatively small, used just inside the entrance to hotels, office buildings or other establishments, to remove dust from the shoes of people entering the building. They are not used throughout the building as are other carpets and rugs. They are normally not in contact or proximity to drapes and other furnishings. Tt is the purpose of this letter to present certain problems of the entrance mat industry under the above Standard which indicate that the Standard is not applicable to this industry. ; During 1962, the rental industrial laundry industry introduced. to its customers a rental mat (rug), treated with a chemical, that was placed in building entrances for the express purpose of collecting and holding dust from shoes when people walked across the mat surface. The item became so popular that it was and Is, used throughout buildings to. police traffic lanes and to improve the buildings overall cleanliness level. This development was so successful that building owners and maintenance managers are conditioned to demanding entrance mats in their establishments. A new concept, a new industry, sprang from that development that took place only eight years ago. Obviously, these mats become soiled and must be cleaned. Representatives of the industrial laundry have prescribed schedules, usually weekly, for picking up soiled mats and leaving clean ones at the point of use. The soiled ones are returned to the laundry where they are washed at temperatures of 200° F., with heavy alkali and detergent charges to remove the collected soil and the dust collecting chemicals. Then, after many rinses, fresh dust collecting chemical is added, the mat. is dried and is rolled for delivery to the customer. ~The basic product. used by industrial laundries in meeting the demand for “entrance” or “dust control” mats is a tufted mat having a eut-pile cotton surface, a heavy duck backing and a highly skidresistant latex back-coating. This product is made in various cimensions to meet various demands. . Other mats have a pile made from synthetic fibers, tor example, nyion, polyesters and acryli¢s and these pile yarns are tufted into various supporting backing fabrics, such as glass scrim, polyester non-wovens and cotton duck. As a final backing, the assembly is fused intoa vinyl chloride film usually about 100 mils thickness. It must be assumed at the outsct that after the effective date of the Standard, all mats purchased by the laundries will be in compliance with the Standard because the obligation of meeting the Standard is placed on the manufacturer at the time of sale. It is my view that it is only at that point that the obligation is imposed. The laundry should be considered the ultimate consumer o f the rugs and therefore not subject to the Standard.

It is quite obvious that neither the Flammable Fabrics Act nor the Standard applies to consumers.

For example, a housewife buys a rug, properly treated to conform to the Standard. But, being a very fussy housewife, she washes or shampoos her rug every day. It may be that, after a period of time, she has washed away the fire-retardant qualities of her rug. It is quite clear under these circumstances that neither she, nor the manufacturer who originally and properly sold her the rug, is liable for a violation of the Act or the Standard.

Similarly, a hotel may buy and lay a rug which complied with the Standard when sold to it by the manufacturer. Over a long period of time, the rug may be washed or shampooed on many occasions, It may reach the point where it will not meet the Methenamine pill test, either with or without the 10 pre-test washings. Nevertheless, it is quite clear that under those circumstances, neither the original manufacturer or seller nor the hotel keeper, is in violation of either the Act or the Standard.

This is obviously because the Act and the Standard do not attempt to follow the rug for its lifetime in the hands of the ultimate consumer, under all and varying conditions of use and care. It seems to be clear that the Act and the Standard cease to apply when the rug has reached the hands of the consumer.

This is supported by two factors which I consider to be conclusive as to the applicability of the Standard.

1. The Notice of Standard, as published in the Federal Register, in the final paragraph, sets up an “effective date” and provides that;all ** * carpets and rugs, manufactured for sale on or after that date shall comply with the Standard. (Emphasis supplied) 2. I have been advised by the office of the General Counsel of the Department of Commerce that it was neither its design nor intent to formulate a Standard to be applied other than at the time of manufacture and sale and that the Standard is neither designed nor intended to apply to the rental “entrance” mat industry. In our view, the laundry is the consumer. The mat or rug is purchased by the laundry for use in its business, not for resale. It remains the property of the laundry until it is worn out and discarded. ADVISORY OPINIONS WITH REQUESTS THEREFOR 1723 The business of the laundry is renting out these rugs temporarily. At various times the rug may be in storage at the Jaundry, not rented out and not in use. At times the rug will be in the process of washing at the laundry or on the laundry truck. At other times, it is temporarily in use at the premises of a customer, but still belongs to the laundry as a part of its business or business service. In many way, this situation is analagous to that of the housewife who is not covered by the Standard or the Act. Nevertheless, she may well lend her rug to a neighbor. She may give it to her daughter. Or, as very frequently happens, she may rent her house to a tenant, furnished, including the rug, without any requirement that the rug must then meet the Standard. The rug having complied with the Standard at the time of purchase, she is freed of any responsibility in her later transactions, including rental of her house, furniture and rug. Similarly, the laundry purchases a rug which must, at the time of purchase, comply with the Standard. The laundry is the consumer, purchasing the rug for use in its business, just as the hotel keeper is the consumer, using the rug in its business. The hotel keeper rents rooms to customers, including the furniture and rug, just as the laundry rents the rug to customers. There seems to be no difference between renting a rug to a customer and renting a room, furniture and rug to a customer. Yet each time a hotel keeper rents a room and rug to a customer, he is not required to see to it that his rug, originally bought in compliance with the Standard, will still meet the test prescribed by the Standard.

As another illustration, suppose the owner of an office building, instead of renting an entrance mat, makes an outright purchase of the mat. Thereafter, the responsibility for washing, cleaning and processing for dust attraction becomes his. Any such purchase he makes must comply with the Standard at the time of purchase. But it is quite clear that he has no further responsibility under the Act or the Standard, as a consumer, to see that for the life of the rug, no matter how much he washes it, it must always be in condition to meet the test prescribed in the Standard. There is no essential difference whether he buys the rug and cleans it himself, or rents one from a Jaundry which cleans it for him.

Nowhere is there any statement as to when the test should be applied to see whether a rug meets the Standard, except the statement in the Notice of Standard that it must meet the test when manufactured for sale. Obviously, the rug must meet the Standard when it is sold by the manufacturer. But after that, when it is in use on a hotel floor, for example, must it still meet the test? And for how long? One month? Five years? Ten years? In varying periods the rug, once in 1724 FEDERAL, TRADE COMMISSION. DECISIONS... .. use, may never have been washed or may have been washed fifty times. It is impossible to conceive that the Standard contemplated that when a tug has been on a hotel floor for five years, inspectors may then come alone and cut eight samples out-of the rug, give them 10 more washings in addition to whatever number. it already had on the floor and then subject the samples to the pill test. = And just imagine an inspector showing up at Mrs. Brown’ s house fis fe-years after she bought a rug for her living room, cutting eight samples out of her living room rug, and then testing them! The very fact that at any time after the manufacture and sale, mere testing for compliance compels destruction, again indicates that such future testing is not contemplated. It is one thing to apply a test at time of manufacture when a sample may be drawn from a run. It is ent: irely diiferent to try to apply a test at a later time. Even if a rug 1s still in a retail store, for sale, to test at that time would be to destroy the rug by cutting out all the necessary samples. The same would be true of testing a rug or carpet on a living room or hotel room floor. It seems absurd to say that a. Standard a pplies at a time when testing involves destruction. Rather than destr oy in order to test, the carpet or rug might just as well be thrown out without testing. , 4ll of the above problems and illustrations inescapably compel the conclusion that one test and only one test is contemplated and that test is at the time of sale by the manufacturer. Indeed, as already mentioned, this has been confirmed to me by the Department of Commerce. It may be that at some future date, a determination may be made that rental entrance mats should be covered by a Standard. If so, a Standard can then be drawn to cover the industry and to cope with its problems, which was not even attempted in the present Standard, and designedly so.

Nevertheless, the mere enactment and publication of a Standard, without specific exemption of the rental entrance mat industry, has created. confusion and raised doubts on the part. of members of the industry, which can only be put to rest by a ruling that this Standard is not applicable.

For all of the above reasons, it is urgently requested that. the Federal Trade Commission issue a ruling that rental entrance mats are not subject to the above Standard or testing under the Standard, once they have been bought in compliance with the Standard. Again may I stress that your prompt action will be greatly appreciated since the time for appeal to the Court is already running.

Many thanks for your kind cooperation.
Respectfully,
/s/ Bernard H. Ehrlich

ADVISORY OPINIONS WITH REQUESTS THEREFOR 1725