Children's products are regulated by the Consumer Product Safety Commission ("CPSC" or the "Commission") through the Consumer Product Safety Improvement Act ("CPSIA") and other federal statutes. But what is a "children's product" as contemplated by the CPSIA? Federal law defines a children's product as one "designed or intended primarily for children 12 years of age and under." 15 U.S.C. 2052. However, what if a product is intended for adults, but also used by children? Perhaps most importantly, who determines whether a product is a "children's product"?
The CPSC makes the final determination as to whether a product is a children's product. However, as outlined herein, and based on the guidelines provided by the CPSIA, the manufacturer has a fair amount of control in the status and interpretation of its products.
A manufacturer should look to 16 CFR § 1200.2 for guidance on whether it is marketing a children's product. There are four factors that the commission will consider in determining whether a product is designed or specifically intended for a child 12 years of age or younger. Those factors are:
- a statement by a manufacturer about the intended use of such product, including a label on such 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 a child 12 years of age or younger; and
- the Age Determination Guidelines issued by the Consumer Products Safety Commission in September 2002.
Statement by the Manufacturer
A statement by the manufacturer must discuss the product's intended use, and should be included on the product's label, if practical. The manufacturer's statement should be reasonably consistent with the expected and usual use of the product. This statement will not solely determine the use of the product. If the primary appeal of the product is to children, it may be considered a children's product, regardless of the manufacturer's statement.
Marketing and Promotion
The commission will consider whether the product is marketed to children in its packaging, display and advertising in determining whether it is considered a children's product. Advertising that shows children 12 years of age or younger using the product suggests that it is a children's product. If the product is displayed in an area near other children's products, it is likely to be considered a children's product. However, if the same product is also displayed in an area where "general use"1 products are displayed, further evaluation may be necessary.
Common Use of the Product
The commission will consider whether consumers commonly recognize the product as being intended for use by children 12 years of age or younger. Marketing studies and sales data may be considered for this purpose. Additional physical indicators, such as the product's size, exaggerated features, safety features, colors and decorative motifs, will also be considered.
Age Determination Guidelines
The CPSC's Age Determination Guidelines2 were issued in 2002. The guidelines provide direction regarding a product's appeal to different age groups. The capabilities of a particular age group may be considered when making determinations about the targeted user groups for a specific product.
Real World Examples: An Ink Pen and a Soccer Ball
How are these guidelines applied to real products? Consider an ink pen. A pen is a general use product, even though children 12 years of age or younger may use a pen. If, however, the pen is decorated with children's themes, the pen could be considered a children's product. The analysis does not end there. A pen could have a school logo, but still be intended for general use. Furthermore, a pen with a model car on the top might be enjoyed as much by adults as by children. Thus, the analysis is not always straightforward or simple.
Sporting good and recreational equipment that are intended primarily for consumers older than 12 years of age are considered general use items. For example, a standard-sized soccer ball is a general use product, even though children 12 years of age or younger may use it. Unless such products are specifically marketed to children 12 years of age or younger, or have extra features that make them more suitable for children 12 and under than for adults (such as "kiddie-sized" soccer balls), they will be considered general use products, not children's products.
Special Rules for Children's Products
If a product is determined to be a children's product, it must (1) comply with the applicable children's product safety rules; (2) be tested for compliance by a CPSC-accredited laboratory; (3) have a Children's Product Certificate that shows that the product is in compliance; and (4) have permanent tracking information affixed to the product and its packaging.
It is also important to note that Section 104 of CPSIA sets forth separate requirements for certain durable infant and toddler products, including cribs.