The Consumer Product Safety Commission (“Commission”) issued proposed rules for comment related to advertising for certain toys and games in catalogues and other printed materials, including Internet advertising.3 The proposal is a result of the Consumer Protection Safety Improvement Act (“Act”) passed in August 2008. The Act requires specific labeling on advertisements for toys and games that are intended for use by children between 3 to 6 years old and that contain small parts (e.g. balloons, small balls, or marbles) that could pose a choking hazard. The proposed rules explicitly prescribe the content, size, and location of cautionary statements that would need to be included in advertisements.

The statute distinguishes between labeling for advertisements on the Internet and advertisements in catalogues and other printed materials. The statutory obligation related to Internet advertising becomes effective December 12, 2008. The Commission has proposed delaying the effective date for catalogue and other print materials from February 10, 2009 until August 9, 2009. Comments on the requirements imposed on catalogues and other print materials were due October 20, 2008 and comments concerning Internet advertising are due November 20, 2008. Below is a summary of the proposed rules and specific topics for which the Commission seeks comment.

I. Guidelines for Cautionary Statements

The Act imposes labeling requirements for advertising of products that could pose a choking hazard. Specifically, the Act requires that cautionary statements must be displayed conspicuously and in a legible type that contrast by typography, layout, or color with other material printed or displayed in the advertisement. The proposed rules also specify the content, size, and placement requirements for cautionary statements. In addition, the proposed rules require that the cautionary statement be provided in same language used in the advertisement.

A. Catalogue and Other Printed Material Rules

The Commission’s proposed rule prescribes the content and type-size of cautionary statements that are required for advertisements in catalogues and other printed materials. The type-size requirements are based on the size of the advertisements for the specific toy or game. Specifically, the proposed rule applies the minimum type size and other requirements imposed on product labeling. These requirements are based on the federal regulations located in 16 C.F.R. 1500.121, which impose very specific type-size, location, and other labeling requirements. The proposed rules, however, would require that labeling statements could not be smaller than 0.08 inches, and all labeling statements must be printed in type that is not smaller than the largest of any other statements or text, other than the product or article name, in the advertisement.

The proposed rule would permit the use of shorthand, or abbreviated warnings for catalogues and other printed materials where it is difficult to include full cautionary statements because of the size of the advertisement. The rules would require that the shorthand terms (e.g. “SMALL PARTS. Not for < 3 yrs,” which means “Small Parts. Not for children under 3 yrs.”) be defined with full warnings at the bottom or top of each page of the catalogue. In the alternative, the terms could be defined across two facing pages of both pages that contain products to which the warning applies.

B. Internet Warnings

The Commission has also proposed rules with respect to requirements for Internet advertising. Similar to the proposed rule’s requirement for advertisements in catalogues and other printed materials, the Commission has proposed to also apply the requirements found in 16 C.F.R. 1500.121 to cautionary statements included in Internet advertisements. The Commission, however, indicated that the size of Internet advertisements makes it difficult to readily adopt the minimum type-size requirements found in 16 C.F.R. 1500.121. The Commission, therefore, proposed a rule that would require that all labeling statements be printed in type that is no smaller than the largest of any other statements or text, other than the product or article name, in the advertisement. In addition, the rule would require any cautionary statement be located immediately before any other statements or text in the advertisement that describes the function, use, or characteristics of the article being advertised. The Commission indicated that it proposed this rule to address concerns that statements may be located below the page scroll of a web site. The Commission also made a preliminary finding that the use of abbreviated warnings in the place of full text warnings is unnecessary and undesirable in the context of Internet advertising.

II. Request for Comments

The Commission has asked for interested parties to comment on the following specific issues:

1. The abbreviated versions and the minimum type-size and placement requirements of the cautionary statements as proposed in the rule;

2. The impact on businesses from the proposals on minimum type-size and placement in catalogues and other printed materials;

3. How often catalogues or other written materials are published and how much lead time is required to prepare these materials for publication;

4. The cost of publishing new catalogues to meet these requirements without the 180 day grace period; and

5. Whether the advertising requirements for catalogues and other printed materials should also apply to materials distributed solely between businesses and not to ultimate consumers, and, if not, how the Commission can distinguish catalogues distributed solely between businesses from those intended for final distribution to ultimate consumers, which may include institutions such as schools, churches, day care centers, and recreational facilities.4