CPSC Publishes Notice of Interpretive Rule for "Children’s Product"; House Committee Expected to Consider CPSIA Amendment

On April 20, 2010, the Consumer Product Safety Commission's ("CPSC") notice of a proposed rule interpreting the term "children's product" was published in the Federal Register. The Consumer Product Safety Improvement Act of 2008 ("CPSIA") provides several new legal requirements and standards applicable to "children's products." The CPSIA defines "children's product" as "a consumer product designed or intended primarily for children 12 years of age or younger," and sets forth four factors relevant to the determination of whether a product is a "children's product."

The proposed rule provides the following interpretation of the "children's product" definition:

• The phrase "designed or intended primarily" is interpreted to apply to products intended "mainly for children 12 years old or younger." (emphasis added)
  
• The statutory definition applies to those products "that children will physically interact with . . . based on the reasonably foreseeable use and misuse of such product."
  
• The CPSC uses the term "general use products" to describe products that are "mainly for consumers older than age 12," and therefore not considered children's products, even if they may also be used by children 12 and younger. Included in the proposed definition of "general use products" are "[o]ther products [that] are specifically not intended for use by children 12 years of age or younger," such as products that the CPSC has warned consumers to keep away from children or products incorporating child resistant features.
  
• The CPSC provides the following guidance on the four factors enumerated in the statutory definition of "children's product" -
  • Statements by the manufacturer must be consistent with a product's expected use. The proposed interpretative rule states however that a "manufacturer's label, in and of itself, is not considered to be determinative."
  • Representations in packaging, display, promotion, or advertising may be express or implied. The physical location of the product near or associated with children's products is relevant to this determination. Also relevant is the product's marketing alongside non-children's products, which the CPSC has proposed "may not be determinative as to whether the product is a children's product."
  • Common recognition by consumers as a "children's product" - Consumer perception, including "reasonably foreseeable use and misuse'" is relevant here. The proposed interpretive rule identifies four factors that may distinguish a children's product from a general use product: (1) features and characteristics of the product (including the size of the product, "[e]xaggerated features that simplify the product's use," decorations on the product, and "[p]lay value or features that promote interactive exploration and imagination for fanciful purposes"); (2) the principle use of the product; (3) cost; and (4) children's interactions with the product.
  • CPSC's Age Determination Guidelines - Issued in 2002, these guidelines consider a "product's appeal to different age groups and the capabilities of those age groups" in determining the age of users for the product.
    
• The proposed interpretive rule provides examples of products that may or may not be considered "children's products" based on the specific circumstances of their design, use, and marketing:
  • Furnishing and fixtures
  • Collectibles
  • Jewelry
  • DVDs, video games, and computers
  • Art materials
  • Books
  • Science equipment
  • Sporting goods and recreational equipment
  • Musical instruments

Public comments are due by June 21, 2010. For full text of the proposed interpretive rule, published at 75 Fed. Reg. 20533, click here.

On a related note, a subcommittee of the U.S. House of Representatives Committee on Energy and Commerce is expected to consider an amendment to the CPSIA, which proposes the following changes:

• Implementing a "functional purpose" test which would exempt children's products from the lead requirements where it is not practicable to remove the lead;
• Specifying that lead limits set to take effect in August 2011 will only apply to products manufactured after that date; and
• Providing for an exemption to the phthalates provision for inaccessible component parts.

These revisions attempt to address some of the issues the CPSC has encountered in implementing the CPSIA, resulting in two stays of enforcement, which have been attributed to inflexibility in several of the CPSIA's provisions. The subcommittee was scheduled to consider the legislation today but the meeting has been postponed. Crowell & Moring will continue to monitor the Committee's activity.