The CPSC published a final interpretive rules pertaining to the definition of “Children’s Product under Section 235(a) of the CPSIA amended section 3(a)(2) the Consumer Product Safety Act (CPSIA”). Under the law, Children’s Products are defined as consumer products designed or intended primarily for children 12 years of age or younger. A consumer product that meets the definition of a children’s product is subject to increased safety standards, such as limits on lead chemical in substrates and third-party testing.
There has been significant uncertainty regarding what is and isn’t a children’s product. The interpretative rule, while not a formal legal regulation, provides guidance as to the agency’s thinking and insights into possible future enforcement actions.
The majority of products will be easily classified under the four criteria established by the law for determining if a product is a children’s product. These criteria are:
(1) A statement by a manufacturer about the intended use of such product, including a label on such 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 a child 12 years of age or younger; and
(4 The Age Determination Guidelines issued by the Commission staff in September 2002 and any successor to such guidelines.
The difficulty arises on the margins. Is a piece of furniture used in a child’s room a children’s product? How about costume jewelry? Does that video game appeal to kids under 12? Is a collectible product a children’s product?
The CPSC guidance helps answer these questions, but it can’t cover all conceivable products. Ultimately, the determination of whether a product is a general use product or a children’s product will be fact dependent.
There are some caveats for manufacturers and importers:
First, products are only children’s products if that are designed or intended primarily for children 12 years or younger. The concept of use is important. Will a child physically interact with the product based on reasonably foreseeable use and misuse of the product. If so, you need to drill down further and carefully examine how the product is labeled, marketed and sold.
Second, be careful in relying on the distinction that a product is for “general use.” But, if an older child or an adult is as likely, or more likely to interact with a product than a child, such product would not be a product designed or intended primarily for children 12 years of age or younger and would not be considered a children’s product.
Third, the most difficult question in determining whether a product is primarily intended for children 12 years of age or younger will often involve products designed or intended for both children 9 to 12 years old and for teenagers and older. Take care when marketing in the age range.
Fourth, what for products that are co-marketed or co-packaged.. A product containing a candle and a stuffed animal would not exempt the stuffed animal from regulation as a children’s product.
Fifth, home furnishing products that have a child’s motif will be considered children’s products. This could include furniture, bedding, carpeting, lighting, and electronics. Lastly, if in doubt about the proper classification of a product, seek clarification from the CPSC or opt for ensuring the product complies with safety standards for children.
A copy of the CPSC guidance can be found by clicking here.