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May 27, 1983

UNITED STATES OF AMERICA, Plaintiff, against SUN AND SAND IMPORTS, LTD., INC., and GUIDO MULLER, individually and as President of Sun & Sand, Defendants.

The opinion of the court was delivered by: GAGLIARDI



 Plaintiff United States commenced this action against Sun and Sand Imports Ltd., Inc. ("Sun and Sand") and Guido Muller seeking a preliminary injunction prohibiting defendants from importing, selling, or offering for sale certain children's garments pending the resolution of administrative proceedings against Sun and Sand before the Consumer Product Safety Commission ("CPSC"). Plaintiff contends that these items of clothing, identified as "Footsie" and "Nectarine," do not comply with the regulations setting forth the requirements for flame resistance enacted pursuant to the Flammable Fabrics Act, 15 U.S.C. §§ 1191-1024 ("FFA") as set forth in 16 C.F.R. § 1615.3 et seq. (1982) (the "flammability standard"). *fn1" Defendants argue that the regulations implementing the flammability standard with respect to children's sleepwear are impermissibly vague thereby violating defendants' Fifth Amendment right to due process. In the alternative, defendants argue that plaintiff is not entitled to an injunction because it has not made the requisite showing that Footsie and Nectarine are sleepwear garments subject to the flammability standard. On May 10, 1983, the court held a hearing and now makes the following findings of fact and conclusions of law pursuant to Rule 52(a), Fed. R. Civ. P.


 Footsie and Nectarine are garments sold in sizes which fit infants and toddlers. Footsie and Nectarine have no trim and are made of soft stretchable fabric. Because the garments have attached feet, they cover the child's entire body except the head and hands. They also have a front zipper opening which runs from the neck to the crotch of the garment.

 On February 7, 1983, the enforcement division of the CPSC issued a complaint alleging that defendants were marketing children's garments that did not comply with the flammability standard. The complaint triggered a proceeding which will culminate in a final administrative determination by the CPSC as to whether Footsie and Nectarine violate the flammability standard. Plaintiff filed the instant action seeking to enjoin defendants from marketing those garments pending the CPSC's final determination.


 The regulations at issue here subject items of children's sleepwear to the flammability standard. 16 C.F.R. §§ 1615.1(c) and 1615.2(b) (1982). Children's sleepwear is defined as

 any product of wearing apparel up to and including six 6X, such as nightgowns, pajamas, or similar or related items, such as robes, intended to be worn primarily for sleeping or activities related to sleeping. Diapers and underwear are excluded from this definition.

 16 C.F.R. § 1615.1(a). In addition, the CPSC uses the following factors to determine whether an item of children's clothing is sleepwear within the meaning of the regulations: the nature of the product and its suitability for use by children for sleeping and activities related to sleeping; the manner in which the product is distributed and promoted; and the likelihood that the product will be used primarily for sleeping or activities related to sleeping in a substantial number of cases. *fn2"

 Defendants first argue that these regulations are unconstitutionally vague because they fail to define the term sleepwear with adequate specificity. Defendants contend that violation of the flammability standard will subject them to both civil and criminal penalties and that the specificity of these regulations therefore must be subjected to a high degree of scrutiny.

 Where, as here, a law not regulating expression is challenged as being void for vagueness, the court must determine whether the provision at issue is so vague that it offered no warning to the party challenging the law that his conduct was prohibited. See United Stats v. Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 95 S. Ct. 710 (1975); Parker v. Levy, 417 U.S. 733, 755-56, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974). As the Supreme Court stated recently in Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982), the degree of vagueness which is constitutionally permissible depends in part on the nature of the enactment.

 The Court has . . . expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe. And the court has recognized that a scienter requirement may mitigate a law's vagueness.

 In addition, vagueness in economic regulation is more likely to be permissible, particularly when the regulated enterprise may be able to clarify the meaning of a rule by its own inquiry or by resorting to the administrative process. See Hoffman Estates v. The Flipside, supra, 455 U.S. at 498; Toy Manufacturers of ...

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