The Consumer Product Safety Commission has issued a proposed interpretive rule that would interpret the term “children’s product” as it is used in the Consumer Product Safety Improvement Act of 2008 (CPSIA). The proposed rule would further clarify what must be considered when evaluating whether a product is a children’s product and subject to specific standards.
CPSIA amends the Consumer Product Safety Act (CPSA) by creating a new definition of “children’s product.” CPSIA defines a children’s product in part as “a consumer product designed or intended primarily for children 12 years of age or younger.” Products that fall into this category are subject to a series of requirements. For example, a children’s product may not contain more than 300 parts per million of lead, a limit that will be further reduced to 100 parts per million in 2011. CPSIA also imposes third-party testing, labeling requirements and safety standards for certain children’s products. Parties who violate the CPSA requirements may be subject to civil and criminal penalties.
The CPSIA establishes four factors to determine whether a consumer product is designed or intended primarily for children 12 years of age or younger and thereby a “children’s product.” The four factors are:
-Manufacturer’s statement about the intended use of the product.
-Whether the product is displayed through packaging 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 a child 12 years of age or younger.
-The Age Determination Guidelines issued by the Consumer Product Safety Commission staff.
The proposed rule discusses the statutory definition of “children’s product” and would provide guidance for manufacturers to evaluate whether their products will be classified as such and subject to regulation. The proposed rule lists considerations that would apply to the manufacturer’s statement, product presentation, what is commonly recognized by consumers as intended for children, and the Age Determination Guidelines. Furthermore, the proposed rule also offers examples of what is considered a children’s product and what is considered a general use product.
As it applies to the manufacturer’s statement, the proposed rule specifies that the statement about the product’s use should be reasonably consistent with the expected use patterns for the product. A statement that the product is not intended for children will not preclude it from being a children’s product if consumers would commonly use that product for children.
The proposed rule explains that product presentation can be either express or implied. Representations on the packaging, text, illustrations, or photographs depicting children using the product may all indicate the product is a children’s product. However, location of the product in stores, on websites, or packaged with other children’s products may also be a factor in determining consumer perceptions of the intended age group. If a product is displayed with toys for young children, this may create the inference that the product is meant for children.
Recognized as Intended for Children
The proposed rule states that a manufacturer, when considering whether a product is intended primarily for a child, should evaluate not only actual and reasonably foreseeable uses of the product but also foreseeable misuses of the product. Specifically, the features, principal affordance, cost considerations, and children’s interaction with the product should all be evaluated when determining whether the product is intended for children.
Age Determination Guidelines
The proposed rule directs manufactures to the Age Determination guidelines. The proposed rule explains that the guidelines are based on the appeal of a product to children of various age groups and the capabilities of children at certain ages to interact with the product.
The proposed rule also provides a series of examples of what will be considered a children’s product. The examples include such things as coat hooks. A coat hook, even if used in a home or school to hang a child’s coat is considered a general use item. However, if the hook is part of a children’s product such as a child-sized desk or the hook is decorated with a child’s theme, the hook will then be considered a children’s product. The list of examples distinguishing children’s products and general use items includes examples of furnishings and fixtures, collectibles, jewelry, DVDs, video games and computers, art materials, books, science equipment, sporting goods and recreation equipment, and musical instruments.
The proposed rule, if adopted, will provide more clarity for many manufacturers in determining whether their product is considered a children’s product, but the rule may also result in certain products that manufacturers assumed were not children’s products being classified as such. With the penalty for violations of the CPSA being raised to $100,000 it is advisable for manufacturers to consult an attorney about whether their product will be considered a children’s product.