How to Interpret the CPSC Guidelines for Playgrounds

Where are we today with our playgrounds? To what standards are you answering? Are you feeling a little lost? Daniel Boone is credited with saying that he'd never been lost in his entire life, but he'd been confused for about a week once. OK, then let's settle on confused.

In the mid-1970s, the U.S. Consumer Products Safety Commission (CPSC) was petitioned to address the rising number of injuries to children on America's playgrounds. I believe it is fair to say that there probably was not a dramatic jump in the number or severity of injuries overnight, sparking these petitions, but rather a rise in consciousness on the part of consumers as to the need for regulation.

Many of the playgrounds then were located over asphalt in schoolyards, parks, and commercial recreation facilities, much as they were when I was a serious user. (After all, we all know that asphalt is softer than concrete, right?)

The CPSC sought the expertise of the NRPA to aid in research on playground injuries to children. Together, the two organizations launched a study of the issues involved and the best course of action to protect consumers, America's children.

Over the course of several years, it became obvious that the time and money would be a true roadblock to the development of federal regulations to govern the playground industry, and the project was set aside. A substantial body of research, though, had been developed, and valuable insights had been gained as a result of the initial efforts of many experts in the field. The course of action that the CPSC finally chose was to develop a "guideline" for providers to address many of the most notable concerns; i.e., surfacing, head entrapment via head-first entry into openings and use/fall zones, etc.

In 1981, the first direction from the CPSC was published in the form of the Handbook for Public Playground Safety. The first volume was in two parts that I like to typify as a technical manual and a consumer- based informational booklet on the awareness of the issues involved in safe play environments.

Under the leadership of the CPSC's John Preston, a wealth of information and statistical data had been placed in the hands of providers and consumers alike for the provision of a valuable part of childhood development, now recognized as a potential for severe, even life-threatening injury. 

Reaction to the release of the Handbook was mixed. Some locales had no idea that the guidelines had any relevance to their playgrounds, while others experienced the "Oh, my gosh!"-(or worse)-reaction. Some of you may remember that from the late 1970s through the mid-1980s, we, particularly in the public sector, were experiencing an insurance crisis of monstrous proportions that drove many unfortunate decisions. Playgrounds have now become a liability to owner/operators with associated risk factors that many were unwilling to accept without the umbrella of insurance.

Complicating the issue even further was a question, misunderstanding, or, at the worst, the rumor that the federal government was now in the business of "mandating" playground safety. The intent of the CPSC to offer "guidelines" to providers for developing and maintaining safe play sites for children was interpreted as a threat of intervention and financial loss by owner/operators. In a community near where I lived at the time, two crews were established to remove neighborhood or "vest pocket" play sites as risks to the kids, but more so to the financial well-being of the city.

As the confusion over the true nature of the beast that CPSC had released upon the quiet, relaxing world of playgrounds mounted, the insidious players stealthed away in some hallowed halls in the Washington D.C. area, where they were reviewing and revising the 1981 document. New data was developing from more current injury statistics that demanded revision of the 1981 Handbook. While the stated purpose of the 1991 release was to clear up some confusion and provide more succinct direction, it may have indeed added to the confusion on the part of owner/operators.

The 1991 Handbook, a single, consumer-based volume, recognized, among other issues, that children were in fact becoming entrapped by their heads as a result of feet-first entry into openings within the 3.5-inch to 9-inch range. As noted earlier, the 1981 version of the Handbook addressed the problem of head-first entrapment with the preschool age range, but data was clearly showed that feet-first was a more significant issue. Once again, the question was on the lips of many, "Is this law or just a recommendation?"

Recognizing the complexity of the problem for providers, a group under the auspices of the NRPA undertook the task of creating a relevant training program for the industry to address the issues raised by the CPSC. Experts in the field of playground design, construction, maintenance, and evaluation of safety matters, like Dr. Francis Wallach, Ken Kutska, Teri Hendy, Monty Christiansen, MaryLou Iverson, and Dr. Donna Thompson stepped forward to support the training plan for owners/operators, and the National Playground Safety Institute (NPSI) was developed. All the founders of NPSI played significant roles in monitoring and assisting the CPSC in their efforts to protect consumers.

While the owner/operators were struggling with interpretations and implementation, manufacturers were similarly concerned with the interpretations of the CPSC documents and approached the American Society for Testing and Materials (ASTM) to produce a technical document that they could use as guidance. The ASTM formed a subcommittee under the Fl 5 committee, specifically Fl 5.29, of manufacturers, owner/operators, design and construction experts, representatives of all the aspects of safety in the play environment, and released, in 1993, the first F1487, which provided technical information to the industry on safe play equipment and environments.

The ASTM's "Standard Consumer Safety Performance Specification for Playground Equipment for Public Use" referenced issues raised in the CPSC document, but many found the initial release to be in significant conflict with the CPSC. This conflict arose in a number of areas, and now the "voluntary" industry standard that was supposed to clear the air was, in fact, adding to the confusion of those responsible for children's right to safe play sites. The dynamics of the industry were evident in the need for revision and harmonization of the major documents recommending standards of care for owner/operators and manufacturers alike. Revisions were produced in 1994, 1995, 1998, and 2001 in both the CPSC Handbook and the ASTM Fl 487, bringing the two documents into nearly complete agreement on the shared issues.

The heart of the matter, finally, is whether or not the CPSC created federal law that demands compliance with the "standards" it has identified. The answer to this question is no. The key to this understanding is found in the very first paragraph of the Handbook in section 1.1: "This handbook presents safety information for public playground equipment in the form of guidelines."

I believe that the CPSC has recognized the dynamics of the industry as well as the efforts being made by other groups, notably NPSI, in enhancing and promoting safe play sites, in choosing to maintain this "guidelines" posture. ASTM does not have legislative authority, and therefore, the standards produced under F1487 remain voluntary standards for the industry.

While a number of states have enacted state mandates for CPSC compliance, and some licensing standards certainly exist, there is no federal law mandating compliance with the CPSC guidelines. I've heard it said a number of times that if you like sausage or laws, you ought not watch either being made. This is reflected in some of the state laws and licensing standards, and speaks well to the Commission's decision to leave their product at the "guideline" level.

It is worth noting here that there are federal mandates relative to compliance with accessibility issues resulting from the release of the Recreation Access Board regulations in October of 2000. The Department of Justice, under the Americans with Disabilities Act of 1990, will now have a direct impact on play sites and their accommodation of those users who may be deemed disabled. Do not confuse the CPSC guidelines with the mandates noted under the ADA.

When we look at the issue of laws and the court system, it is notable that what we really find out there are two influences on the outcome of litigation. In legal terms, we must be dealing with two planes: De jure and De facto. As defined by Black's Law Dictionary De jure means "by right, by lawful right...valid in law," while De facto is defined as " In fact; actually; indeed; in reality. "This is the true nature of the litigation resulting from playground injuries- the courts are likely to accept the CPSC Handbook as De facto law in finding the noncompliant owner/operator at fault because it represents a dynamic industry standard of care that you and I, as professionals in the field, knew or should have known at the time of the injury existed.

I'd typify this as the reality within judicial prerogative or the "gotcha" factor. It is evident as we examine the results of civil litigation that we are being held to a standard of care that, while not law, demands our serious attention to right. No, Virginia, there is no federal law, CPSC or otherwise, that mandates playground safety. There is, however, a recognized standard of care for providers to maintain. Furthermore, there is the responsibility to provide our children with the right to develop through play in environments that provide the risks associated with growth, yet free from the hazards that represent life-threatening or severely debilitating injuries.