CPSC Issues Proposed Rule on CPSIA Definition of Children’s Products

Since most of the requirements introduced by the CPSIA apply to “children’s products” (the phthalates bans, lead content limits, third-party testing, tracking labels, etc.), the trade has been waiting for additional clarity on this term.

The proposed rule is substantially similar to the draft CPSC had previously posted to its Website, though certain changes have been made, some of which are noted below in italics. (See ITT’s Online Archives or 03/22/10 news, (Ref: 10032215), for BP summary of the draft.)

Comments are due June 21, 2010.

CPSIA Already Defines Children’s Products, Provides Four Factors to Consider

The CPSIA already defines children’s products as consumer products designed or intended primarily for children 12 years old or younger. It also outlines four factors to consider in determining whether a consumer product is primarily intended for children:

• a statement by the manufacturer about the intended use of the product, including a label on the product, if such statement is reasonable;
• whether the product is represented in its packaging display, promotion, or advertising as appropriate for use by children 12 years of age or younger;
• whether the product is commonly recognized by consumers as being intended for use by children 12 or younger; and
• CPSC’s 2002 (or any successor) Age Determination Guidelines.

Highlights of Proposed Rule

The following are highlights of the proposed rule:

Determinations Would be Based on Four Factors

According to the proposed rule, a determination of whether a product is a “children’s product” would be based on consideration of the four statutory factors outlined above and further described in the preamble of the proposed rule.

Interpretation of Statutory Definition of Children’s Products

The proposed rule would provide the following guidance on the statutory definition of children’s products:

“Designed or intended primarily.” The proposed rule would interpret the term "designed or intended primarily" to apply to those consumer products mainly for children 12 years old or younger. (Note that the draft had stated the term would apply to those consumer products “designed and commonly recognized as intended for use by a population of consumers constituted by a significant proportion of children 12 years old or younger.”)

“For use.” The proposed rule would interpret the term "for use" by children 12 years or younger to generally mean that children will physically interact with such products based on the reasonably foreseeable use and misuse of the product.

General Use Products

In contrast, the proposed rule states that general use products are those consumer products mainly for consumers older than age 12. It adds that some products may be designed or intended for consumers of all ages, including children 12 years old or younger, but are intended mainly for consumers older than 12 years of age. Examples of general use products may include products that a child would not be likely to interact with or products that consumers older than 12 would be as likely, or more likely to interact with.

(For example, most pens are not considered children's products because they are sold to the general public. Even pens with childish themes or play value would have to be further assessed because such pens could be considered general use items if an older child or adult is as likely or more likely to interact with it.)

Proposed Rule’s Interpretation of CPSIA Factors

To help evaluate whether a particular product is "primarily" designed or intended for a child, the proposed rule would provide CPSC’s interpretation of the statutory factors as follows:

Manufacturer statement. A manufacturer's statement about the product's intended use, including a label on the product, should be reasonably consistent with the expected use patterns for a product. However, the manufacturer’s label, in and of itself, is not considered to be determinative. For example, a manufacturer’s statement that the product is not intended for children would not preclude a product from being regulated as a children’s product if the primary appeal of the product is to children 12 or younger.

Similarly, a label indicating that a product is for ages 10 and up does not necessarily make it a children’s product if it is a general use product. Such a label may recommend 10 years old as the earliest age for a prospective user, not necessarily the age for which the product is primarily intended. (Note that the draft had not mentioned any distinction for products labeled for use from ages 10 and up.)

Product presentation. A product’s representation as a product for use by children could be found in packaging, text, photographs, assembly manuals, advertising, etc. The representations can be obvious (advertising declaring use for children under 12) or implied (advertizing showing the product being used by toddlers). The prominence, conspicuousness, and or other emphasis given to each portrayal of a product’s uses or intended users could be weighted differently according to which images or messages are the strongest and most obvious to the consumer at the point of purchase.

A product's physical location near or visual association with children’s products (such as in a store or catalogue) could also be a factor in making an age determination, but is not determinative, and CPSC generally evaluates products based on the entire domestic market, not a shelf-by-shelf or store-by-store analysis. For instance, inclusion in a catalogue focused exclusively on furnishings for babies and toddlers does not necessarily convert a product that may have more general appeal, such as a plain light blue, yellow, or ivory rug, into a children’s product. In addition, if a video game console were sold at both a toy store and an electronics stores for adults, it would be considered a general use product, not a children's product. (Note that this section of the proposed rule has been expanded from the draft version.)

Recognition by consumers. Manufacturers should evaluate the reasonably foreseeable uses and misuses of a product to determine how the product will be perceived and used by consumers of that product. Manufacturers may rely on market analyses, focus groups, or other marketing studies for their analyses of the likely ages of consumers of their products. (See proposed rule for details of common features of children’s products such as small sizes, childhood motifs, lower costs, etc.)

Age determination guidelines. CPSC’s 2002 Age Determination Guidelines help answer questions regarding children's interactions with consumer products by addressing questions such as, "Does the subject product appeal to children?" and "Can a child properly use the subject product?" The Guidelines describe the capabilities and skills that children of various age groups can be reasonably expected to use in interactions with consumer products.

Examples of Children’s Products vs Adult/General Use Products

The proposed rule would also provide the following examples of products considered children’s products and those considered adult or general use products:

Furnishings and fixtures. General home furnishings and fixtures (rocking chairs, shelving, televisions, digital music players, ceiling fans, humidifiers, curtains, tissue boxes, clothing hooks, etc) that often are found in children’s rooms or schools would not be considered children’s products unless they are decorated or embellished with a childish theme, have play value, and/or are sized for a child. Examples of furnishings that would be considered children’s products include infant tubs, bath seats, small bean bag chairs with childish decorations, bunk beds with children’s themes, child-sized desks, and child-sized chairs. Decorative items, such as holiday decorations and household seasonal items that are intended only for display, with which children are not likely to interact, would generally not be considered children’s products, since they are intended to be used by adults.

Collectibles. Adult collectibles have features that preclude use by children during play, such as high costs, limited production, display features like hooks or pedestals, and are not marketed alongside children's products. Children’s collectibles have lower costs and simple accessories that can be handled without fear of damage to the product.

Jewelry. Jewelry intended for children is sized, themed, and marketed to children. In addition, other characteristics of jewelry may cause it to be considered primarily a children’s product: such as sale with a child’s book, sale in a store that contains mostly children’s products, etc. While many features of adult jewelry may be attractive to children 12 years old or younger, potential attractiveness to children, alone, does not make a piece of jewelry into a product intended for children. Other factors may have to be considered such as size, cost, the way it is marketed, play value, etc.

DVDs, video games, computers. Most computer products and electronic media devices, such as CDs, DVDs, and DVD players, would be considered general use products. However, some may have encoded content that is intended for and marketed to children, such as children's movies, games or educational software. However, CPSC notes that certain CDs and DVDs intended for very young children would not be considered children’s products because they are not used “by” children, and children do not physically interact with such products.

Art materials. Materials sized, decorated, and marketed to children 12 years of age or younger such as crayons, finger paints and modeling dough would be considered children's products. Crafting kits and supplies that are not specifically marketed to children 12 years of age or younger would likely be considered products intended for general use. The marketing and labeling of raw materials may often be given high priority in an age determination for art materials because the appeal and utility of art materials has such a wide audience.

Books. The content of a book would determine its intended audience. Children's books have themes, vocabularies, illustrations, and covers that match the interests and cognitive capabilities of children 12 years of age and younger. The age guidelines provided by librarians, education professionals, and publishers could be dispositive for determining the intended audience. Some children's books have a wide appeal to the general public, and in those instances, further analysis may be necessary to assess who the primary intended audience is based on consideration of relevant additional factors such as product design, packaging, marketing and sales data.

Science equipment. Microscopes, telescopes and other scientific equipment would not be considered to be children's products unless the equipment is specifically sized for children and/or has childish themes or decorations intended to attract children. Toy versions of such items would be considered children’s products.

Sporting goods and recreational equipment. Regulation-sized sporting equipment, such as basketballs, baseballs, bats, racquets, and hockey pucks, would be general use items even though some children younger 12 years of age or younger will use them. Sporting goods would become children's products when they are sized to fit children or are otherwise decorated with childish themes that are intended to attract child consumers by the manufacturer. Likewise, recreational equipment, such as roller blades, skateboards, bicycles, camping gear, and fitness equipment, would be considered to be general use products unless they are sized to fit children 12 years of age or younger and/or are decorated with childish themes by the manufacturer.

Musical instruments. Musical instruments suited for adult musicians as well as children would be general use products. Instruments primarily intended for children can be distinguished from adult instruments by their size and marketing themes. Products with a marketing strategy that targets schools, such as instrument rentals, would not convert such products into children’s products if such products are intended for general use, regardless of how the instruments are leased, rented, or sold.

CPSC contact -- Jonathan Midgett (301) 504-7692

CPSC proposed rule (FR Pub 04/20/10) available at http://edocket.access.gpo.gov/2010/pdf/2010-8431.pdf