CPSC Approves Final Rule Interpreting "Children's Product"

On October 6, 2010, the Consumer Product Safety Commission ("CPSC") approved a final rule interpreting the term "children's product."  The proposed rule was initially published for comment in the Federal Register on April 10, 2010.  The Consumer Product Safety Improvement Act of 2008 ("CPSIA") defines "children's product" as "a consumer product designed or intended primarily for children 12 years of age or younger," and lists four factors relevant to determining what is a "children's product" under the definition.  The term was codified at Section 3(a)(2) of the Consumer Product Safety Act ("CPSA"), 15 U.S.C. § 2052(a)(2).

The CPSC's interpretation of "children's product" includes the following:

• The children's product determination "depends on factual information that may be unique to each product" and is "made on a case-by-case basis."
  
• The phrase "designed or intended primarily" is interpreted to apply to products intended "mainly for children 12 years of age or under."  (emphasis added)
  
• The term "for use" means those products with which "children will physically interact . . . based on the reasonably foreseeable use of such product."  Note that this portion of the rule differs from the proposed rule, which included the foreseeable use and misuse of the product.
  
• "[G]eneral use product" is used and defined as "a consumer product that is not designed or intended primarily for use by children 12 years old or younger," but rather "designed or intended primarily for consumers older than age 12."  This definition includes products that–
  
  
  • may be used by children but are intended mainly for consumers over the age of 12;
    
  • the CPSC "has traditionally warned adults to keep away from children" and are not subject to the children's product requirements, such as fireworks and candles; and
    
  • incorporate child resistance features, such as "portable gasoline containers and special packaging under the Poison Prevention Act."
    
• The rule recognizes three main features of children's products as (1) "decorations or embellishments that invite use by the child," (2) "being sized for a child," and (3) "being marketed to appeal primarily to children."
  
• The new rule reiterates the four factors enumerated in the CPSIA's definition of "children's product" and provide further guidance on the application of these factors:
  
  
  • Statements by the manufacturer should be "reasonably consistent" with the product's expected use and are not determinative of whether the product is a children's product.
    
  • Representations in packaging, display, promotion, or advertising made by a manufacturer may be express or implied.  Relevant to this determination is the product's physical location near children's products in a store, though the CPSC acknowledges that manufacturers do not always control how their products are placed by retailers.  The rule further states that a product's marketing with a nonchildren's product may be relevant but is not necessarily "determinative as to whether the product is a children's product."
    
  • Common recognition by consumers as a "children's product" – This factor considers consumer perception of the product's use, including its "reasonably foreseeable use."  Again, this portion of the rule has been changed from the proposed rule which read "reasonably foreseeable use and misuse."
    
    The rule identifies three categories the CPSC will consider in determining consumer perception:  (1) "Features and Characteristics," including sizing, features, colors, "[d]ecorative motifs commonly associated with childhood," and play value; (2) Principal use of the product," which the rule notes "take[s] precedence over other actions that are less likely to be performed with a product," (3) "Cost," and (4) "Children's interactions, if any, with the product." 
    
  • CPSC's Age Determination Guidelines, published in 2002, consider "a product's appeal to different age groups and the capabilities of those age groups" in determining the intended users of a product.
    
• Finally, the rule identifies and discusses several categories of consumer products to assist manufacturers in understanding the CPSC's interpretation of "children's product," including –
  
  
  • Furnishings and Fixtures (such as televisions, window curtains, rugs, and lamps)
  • Collectibles (such as collectible plush bears and model railway trains)
  • Jewelry
  • DVDs, Video Games, and Computer Products
  • Art Materials
  • Books
  • Science Equipment
  • Sporting Goods and Recreational Equipment
  • Musical Instruments
    
• Art materials, books, science equipment, and musical instruments that are general use products but are distributed, sold, or rented "in bulk through distribution channels that target children 12 years of age or younger in educational settings" are not considered children's products unless their packaging suggests that they are designed or intended primarily for children 12 years of age or younger.
  
• Art materials designed or intended primarily for children 12 years of age or younger must comply with the third party testing and certification requirements for children's products but are not required to be tested and certified to the requirements of the Labeling of Hazardous Art Materials Act ("LHAMA").

The rule will be added to the regulations as 16 CFR Part 1200 and will become effective once it is published in the Federal Register.