The Consumer Product Safety Commission (CPSC) has issued a final interpretive rule that explains the specified statutory factors “that are to be taken into consideration when making a determination about ‘whether a consumer product is primarily intended for a child 12 years of age or younger,’” and thus fits the definition of “children’s product” under the Consumer Product Safety Improvement Act of 2008 (CPSIA).

Starting from the premise that this determination must be made on a case-by-case basis, CPSC created a new Code of Federal Regulations section to elaborate the statutory factors considered. Those factors are (i) “A statement by the manufacturer about the intended use of such product, including a label on such product if such statement is reasonable”; (ii) “Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger”; (iii) “Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger”; and (iv) “The Age Determination Guidelines issued by the Commission staff in September 2002 and any successor to such guidelines.”

The rule, which became effective October 14, 2010, provides illustrative examples of the types of products that constitute children’s products under the law, as well as those that do not, explaining that the latter are not subject to the CPSIA’s lead limits, tracking label requirement and third-party testing and certification provisions. CPSC commissioners divided 3-2 in approving the rule and prepared separate statements in support of their positions. See Federal Register, October 14, 2010.