CPSC Comments on Recent Vote to Publish Children's Product Rule
All five Commissioners of the Consumer Product Safety Commission have posted statements on their 3-2 vote on September 29, 2010 to approve a final rule interpreting the Consumer Product Safety Improvement Act of 2008 (CPSIA) definition of children's products.
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(See ITT’s Online Archives or 09/30/10 news, 10093020, for BP summary of their vote and the changes made from the draft version of the final rule.)
The following are highlights of the Commissioners’ comments:
Impossible to Establish Bright-Line Rules to Define Children’s Products
Chairman Tenenbaum notes that some have complained that the final rule fails to establish bright line rules for particular classes of products. However, she feels it is important to remember that Congress provided a four factor test1 to determine whether a product is a children’s product and the marketplace is filled with millions of different products, each with thousands of variations under the four factors the agency must consider. Therefore, it is understandably very difficult for CPSC to establish bright line rules or create a one-size-fits-all approach to the definition of a children’s product.
CPSC Required to Consider 4 Factors in Making Children Product Determinations
Commissioner Adler points out because Congress provided CPSC with the four factors that they must consider when determining whether a consumer product is primarily intended for a child 12 years of age or younger, the agency must, at a minimum, consider all four of these factors, unless a given factor obviously does not apply to a specific product.
CPSC Cannot Merely Consider Manufacturer Label
Both Commissioners Adler and Moore state that while a manufacturer’s statement that a product is not intended for children 12 years of age or younger will certainly be one of the factors CPSC considers, by law it cannot not be the only factor.
Nord, Northup Oppose Final Rule’s Lack of Emphasis on Manufacturer Intent, Risk
Commissioner Nord states that while the final rule approved by the Commission has been much improved, she was not able to vote for it because it still does not provide the clarity that businesses need. She also does not believe that the rule has given proper weight to the manufacturer’s intent in the analysis of whether a product is designed or intended primarily for children.
Commissioner Northup agrees, and adds that she had hoped for a risk-based approach in the final rule that would seek to limit affected children’s products according to risk. She states that although the CPSIA itself ignored consideration of risk, she finds nothing in the statute that forbids the agency from taking risk into consideration in using its discretion to make policy choices.
1The four factors are: (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.