Details of CPSC’s Draft Final Rule on CPSIA Definition of "Children’s Products"

(Note that 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.).)

Open Meeting on Sept 1, Vote on Sept 9

CPSC has also issued a notice announcing that they will hold an open meeting on the draft final rule on September 1, 2010. A live webcast of the meeting can be viewed at www.cpsc.gov/webcast. According to CPSC sources, CPSC will then meet and vote on the final rule on September 9, 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: (1) a statement by the manufacturer about the intended use of the product, including a label on the product, if such statement is reasonable; (2) whether the product is represented in its packaging display, promotion, or advertising as appropriate for use by children 12 years of age or younger; (3) whether the product is commonly recognized by consumers as being intended for use by children 12 or younger; and (4) CPSC’s 2002 (or any successor) Age Determination Guidelines.

Highlights of Draft Final Rule

The following are highlights of the draft final rule:

Detailed Definition of Children’s Product

Draft 16 CFR 1200.2(a) would define a children’s product as a consumer product designed or intended primarily for children 12 years of age or younger.

“Designed or intended primarily.” The term “designed or intended primarily” applies to those consumer products mainly for children 12 years old or younger. Whether a product is a children’s product is determined by considering the four specified statutory factors.

“For use.” The term “for use” by children 12 years or younger generally means that children will physically interact with such products based on the reasonably foreseeable use and misuse of such product.

Scope and age grading. Toys and articles that are subject to the small parts regulations at 16 CFR Part 1501 and ASTM F963, would logically fall within the definition of children’s product since they are intended for children 12 years of age or younger.

Toys and other articles intended for children up to 96 months (8 years old) that are subject to the requirements at 16 CFR 1500.48 through 1500.49 and 16 CFR 1500.50 through 1500.53, and ASTM F963 would similarly fall within the definition of children’s products given their age grading for these other regulations.

Therefore, a manufacturer could reasonably conclude on the basis of the age grading for these other regulations that it must comply with all requirements applicable to children’s products including, but not limited to, those under the Federal Hazardous Substances Act (FHSA), ASTM F963, “Standard Consumer Safety Specification for Toy Safety,” and the CPSIA.

Definition of General Use Product

Draft 16 CFR 1200.2(b) would define a general use product as a consumer product that is not designed or intended primarily for use by children 12 years old or younger. General use products are those consumer products mainly for consumers older than age 12. 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. Products used by children 12 years of age or younger that have a declining appeal for teenagers are likely to be considered children’s products.

Other products are specifically not intended for use by children 12 years of age or younger. These products, such as cigarette lighters, candles, and fireworks, which CPSC has traditionally warned adults to keep away from children, are not subject to the CPSIA’s lead limits, tracking label requirement, and third-party testing and certification provisions. Similarly, products that incorporate performance requirements for child resistance are not children’s products as they are designed specifically to ensure that children cannot access the contents. This would include products such as portable gasoline containers and special packaging under the Poison Prevention Packaging Act.

Details on Four Factors to be Considered if Product is Children’s Product

Draft 16 CFR 1200.2(c) would require the following factors to be considered to whether a consumer product is intended primarily for a child 12 years of age or younger:

Manufacturer statement. A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable. A manufacturer’s statement about the product’s intended use, including the product’s label, should be reasonably consistent with the expected use patterns for a product.

A manufacturer’s statement that the product is not intended for children does not preclude a product from being regulated as a children’s product if the primary appeal of the product is to children 12 years of age or younger. Similarly, a label indicating that a product is for ages 9 and up does not necessarily make it a children’s product if it is a general use product. The manufacturer’s label, in and of itself, is not considered to be determinative.

Product representation. Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.

These representations may be express or implied. The product’s physical location near, or visual association with, children’s products may be a factor in making an age determination, but is not determinative. The product’s association or marketing in conjunction with non-children’s products may not be determinative as to whether the product is a children’s product. (See draft final rule for examples.)

Consumer recognition. Whether the product is commonly recognized by consumers as being intended for use by children 12 years of age or younger. Consumer perception of the product’s use by children, including its reasonably foreseeable use and misuse, will be evaluated. Sales data, market analyses, focus group testing, and other marketing studies may help support an analysis regarding this factor. (See draft final rule for common features of children’s products.)

Age Determination Guidelines. CPSC’s 2002 Age Determination Guidelines, and any successor to such guidelines. The product’s appeal to different age groups and the capabilities of those age groups may be considered when making determinations about the appropriate user groups for products.

Examples of What Constitutes a Children’s Product

The draft final rule provides the following examples of what does and does not constitute a children’s product under the CPSA:

Furnishings and fixtures: general home furnishings and fixtures (including, but not limited to: rocking chairs, shelving units, televisions, digital music players, ceiling fans, humidifiers, air purifiers, window curtains, tissue boxes, rugs, carpets, clothing hooks and racks) 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 home or school furnishings that are intended primarily for use by children and 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, are generally not considered children’s products, since they are intended to be used by adults.

Collectibles: adult collectibles may be distinguishable from children’s collectibles by themes that are inappropriate for children 12 years of age or younger; features that preclude use by children during play, such as high cost, limited production, fragile features, and display features (such as hooks or pedestals); and how they are marketed (they are not marketed alongside children’s products). For example, collectible plush bears have high cost, are highly detailed, with fragile accessories, display cases, and platforms on which to pose and hold the bears. Children’s bears have lower costs and simple accessories that can be handled without fear of damage to the product. Another example of collectible items includes model railways and trains made by model railway manufacturers.

Jewelry: jewelry intended for children is generally sized, themed, and marketed to children. One or more of the following characteristics of jewelry may cause a piece of jewelry to be considered a children’s product: size; very low cost; play value; childish themes on the jewelry; sale with children’s products (such as a child’s dress); sale with a child’s book, a toy, or party favors; sale with children’s cereal or snacks; sale at an entertainment or educational event attended primarily by children; sale in a store that contains mostly children’s products; and sale in a vending machine.

In addition, many aspects of an item’s design and marketing are considered when determining the age of consumers for whom the product is intended and will be purchased: marketing; advertising; promotional materials; packaging graphics and text; size; dexterity requirements for wearing; appearance (coloring, textures, materials, design themes, licensing, and level of realism); and cost. These characteristics will help jewelry manufacturers and consumers determine whether a particular piece of jewelry is designed or intended primarily for children 12 years of age or younger, or whether it more frequently appeals to consumers older than 12 years of age.

DVDs, video games, and computers: most computer products and electronic media, such as CDs, DVDs, and video games, are considered general use products. In addition, electronic devices such as DVD players, CD players, game consoles, book readers, digital media players, cell phones, digital assistant communication devices, and accessories to such devices that are intended mainly for children older than 12 years of age or adults are products for general use. However, electronic media players and devices that are uniquely embellished or decorated with childish themes would not fall under the general use category because children 12 years or younger would likely be the main users of such devices.

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 likely would be considered products intended for general use. The marketing and labeling of raw materials (such as modeling clay, paint and paint brushes) may often be given high priority in an age determination for these art materials because the appeal and utility of these raw materials has such a wide audience.

Books: the content of a book can 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 or younger. The age guidelines provided by librarians, education professionals, and publishers may 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 that would be used by an adult, as well as a child, are considered general use products. Equipment with a marketing strategy that targets schools, such as scientific instrument rentals, would not convert such products into children’s products if such products are intended for general use, regardless of how the equipment is leased, rented, or sold. This equipment is intended by the manufacturer for use primarily by adults, although there may be incidental use by children through such programs. In general, scientific equipment that is specifically sized for children and/or has childish themes or decorations intended to attract children is considered a children’s product. Toy versions of such items are also considered children’s products.

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

Musical instruments: musical instruments, including electronically-aided instruments, suited for an adult musician as well as a child are general use products. Instruments intended primarily 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.

These instruments are intended by the manufacturer for use primarily by adults, although there also may be incidental use by children through such programs. However, products that produce music or sounds in a manner that simplifies the process so that children can pretend to play an instrument are considered toys intended primarily for children 12 years of age or younger. In general, instruments that are specifically sized for children and/or have childish themes or decorations intended to attract children are considered children’s products.

Highlights of CPSC Responses to Comments Received on the Proposed Rule

The following are highlights of CPSC’s responses to comments it received on the proposed interpretive rule. (Note that BP recently reported on the certain trade comments on the proposed rule. See ITT’s Online Archives or 07/12/10 news, 10071208, for BP summary.)

Toys/Other Articles May be Considered Children’s Products, Still Subject to Other Regulations

A few commenters stated that the proposed interpretative rule affects other requirements previously established for toys and children’s products. Specifically, the commenters give as an example board/table games which were identified under the Age Determination Guidelines as being appropriate for children in the 6 year old range.

The commenters assert that the games would have to comply with ASTM F963 (a toy standard that is now a mandatory consumer product safety standard pursuant to the CPSIA), applicable FHSA requirements under 16 CFR 1500.50-53, lead in surface coatings under 16 CFR 1303, and phthalates requirements of CPSIA. If the games are general use products, the commenters claim that such products would not be required to comply with the lead in substrate requirements or the tracking label requirements, or the mandatory third party testing requirements under the CPSIA.

CPSC stated that to the extent that toys or other articles are or contain small parts that are intended for use by children under 3 years of age, they will continue to be considered children’s products and subject to third-party testing and certification requirements. Such toys and articles continue to be subject to the small parts regulations at 16 CFR Part 1501 and must comply with all applicable requirements under the FHSA, ASTM F963, and the CPSIA.

In addition, for toys and other articles intended for use by children under 8 years of age that are subject to the use and abuse tests at 16 CFR 1500.50 through 1500.53, and the sharp points and edges tests at 16 CFR 1500.48 through 1500.49, such products will continue to be considered children’s products. Such toys and other articles intended for children under 8 years of age that are subject to the requirements at 16 CFR 1500.48 through 1500.49 and 16 CFR 1500.50 through 1500.53, and ASTM F963, will continue to be considered children’s products and must comply with all applicable regulations under the FHSA, ASTM-F963 and the CPSIA.

Manufacturer Intent is Not Entitled to Greater Weight than Other 3 Factors

Commenters stated that the definition should be clear that children’s products are only those designed or intended by the manufacturer to be intended primarily for children 12 years of age or younger and that a product falls outside the scope of the definition if the product was designed or intended primarily by the manufacturer for older children or adults.

The commenters requested that CPSC limit the scope of the definition by emphasizing that the manufacturer’s intent is the determinative factor for evaluating whether a consumer product is a children’s product. According to these commenters, the interpretative rule should make clear that the remaining statutory criteria would be subordinate to statements made by manufacturers about the intended age of the users.

CPSC stated that it disagrees that a determination of what is a children’s product be based solely on the manufacturer’s intent. The manufacturer’s intent, including labeling, is only one of four factors that CPSC must consider. While CPSC agrees that the manufacturer’s intent plays an important role in making initial children’s product determinations, it is not necessarily determinative, always determinative, or entitled to greater weight than any other factor.

“For Use” Interpreted to Include Physical Use of a Product

Other commenters stated that the proposed definition of children’s product should not contain a definition of “for use” by children that is based on “physical interaction” and “foreseeable use and misuse” of such products by children. According to the commenters, the requirement that children physically interact with such products would capture many household products that would not be primarily designed or intended for children 12 years of age or younger.

CPSC stated that it disagrees that the interpretation of “for use” would capture general use products that are not primarily intended for use by children. CPSC interprets “for use” to include physical use of a product in order to distinguish products, such as diaper bags that are intended to be used with children by the parent or caregiver from products that are intended for use by children. Products that are for use by children are those with which they will interact or have direct physical contact, such as with the diaper itself.

Contrary to the commenters’ assertions, many household products are not primarily intended for use by children, but may be touched by children. Products that are considered general use products, such as televisions, stereo equipment, and appliances, do not become children’s products simply because children may have contact with them because the products are not designed or intended primarily for use by children 12 years of age or younger. The term “use” or “for use” takes into account the concept that children will be exposed to products under reasonably foreseeable conditions of handling, including both use and misuse.

“Gray” Area for Products Designed/Intended for Children 9-12 Years/Teenagers

A commenter argued that the interpretive rule should clarify the “gray” area of products designed or intended both for children 9-12 years old and for teenagers and older. The commenter stated that the manufacturer’s statement should refer to ages 9 and up, rather than ages 10 and up.

CPSC agreed with the commenter that questions regarding determinations on whether a product is mainly intended for children 12 years old or younger or for consumers older than 12 years of age will occur. Older children have advanced cognitive and motor skills, as well as the increased ability to care for their belongings, compared to younger children. Thus, products in this category may have some characteristics that are also appropriate for older children and adults.

CPSC notes that if the product is primarily intended for children ages 9 through 12, it would be considered a children’s product. Accordingly, many determinations regarding this age group will need to be assessed on a case-by-case basis by CPSC staff. The use of ages 9 and up in a manufacturer’s statement, rather than 10 and up, is acceptable but not the determinative factor in an analysis.

Dexterity, Other Factors to be Taken into Consideration for Jewelry

One commenter disputed several considerations that are used in distinguishing adult jewelry from children’s jewelry, including considerations such as dexterity requirements and play value.

CPSC stated that it disagrees that undue emphasis is placed on dexterity or play value when making age determinations. Dexterity requirements may be useful for making distinctions between children’s and adult jewelry. However, these are only some of the factors that may be considered in making determinations regarding jewelry, and a number of other factors may also be considered when products are ambiguous. CPSC takes a balanced approach that includes all of the relevant features of a product.

In addition, the commenter stated that the proposed interpretive rule failed to include design drawings, brand plans, and compliance with standards for adult jewelry as considerations of a manufacturer’s intent in developing a product. CPSC added that design drawings and brand plan information has historically not been readily available for review.

Age Determination Guidelines Must be Used

CPSC received comments suggesting that the Age Determination Guidelines (2002) should not be expanded to evaluate whether children of certain ages can successfully perform specific tasks even if the specific product or type of product is not specifically mentioned by the Guidelines.

CPSC responded that Congress has mandated that the Age Determination Guidelines be one of the four statutory factors to be considered in determining whether a product is designed or intended primarily for children. The descriptions of factors that appeal to children and the activities that they can perform across childhood are described with enough generality by the Guidelines for using in an age determination of any product, whether it is a toy or not. The Guidelines provide information about social, emotional, cognitive and physical developments during childhood. That information will apply to many products that are not specifically mentioned in the Guidelines.

Not All Pens, Pencils, Office Supplies are Considered Children’s Products

In response to requests that pens, pencils, and other office supplies be specifically included as general use items because they are used mainly by the general public, CPSC stated that only some pens and pencils are designed and intended primarily for children 12 years old and younger. However, if a pen, pencil, or other office supply is not designed or intended primarily for children 12 years old and younger, it would not be considered a children’s product.

CPSC to Consider Feasibility of Online Registry of Collectibles

In response to a commenter requesting an online registry for collectibles, CPSC stated that it can consider the feasibility of an online registry of collectibles.

Certain Electronic Musical Instruments Not Considered Children’s Products

One commenter stated that the proposed rule should explicitly exclude from the definition of children’s product electronically-aided musical instruments and musical devices that are preprogrammed by the user or the manufacturer. CPSC agreed that the preprogrammed sounds and demonstration pieces in electronically-aided musical instruments would not be sufficient to place a musical instrument intended for adults into the scope of the children’s product interpretation described in this rule.

Manufacturer in Best Position to Determine if Footwear is Intended for Children

A few commenters raised issues regarding footwear. These commenters stated that there is no certainty as to whether an article of footwear is a children’s product and that the issue is confused especially with youth footwear. They suggested an objective standard of footwear of 24 cm or more as being intended for adults.

CPSC stated that it believes that the manufacturer is in the best position to make an initial determination regarding whether footwear is intended primarily for children 12 years of age or younger. However, where there is ambiguity, CPSC will rely on the four statutory factors, rather than a single factor, since it is possible that other features can strongly indicate whether footwear is intended primarily for children 12 years old or younger even though the length of the footwear may exceed 24 cm.

¹Note that this is updated information from what was reported in ITT on August 26.

(See ITT’s Online Archives or 08/26/10 news, 10082607, for BP summary announcing the availability of the draft final rule.

See ITT’s Online Archives or 04/10/10 news, 10042024, for BP summary of CPSC’s proposed rule on the CPSIA definition of children’s products.

See ITT’s Online Archives or 07/12/10, 10071208, for BP summary of trade comments on the proposed rule.)

CPSC contact -- Jonathon Midgett (301) 504-7692 or jmidgett@cpsc.gov

CPSC meeting notice is available here.