The US Consumer Product Safety Commission has long required choking hazard warnings on certain toys and games that include small parts, small balls, marbles or balloons, as well as on small balls, marbles and balloons sold separately. Now, under the Consumer Product Safety Improvement Act (CPSIA) of 2008, the warning requirement also will apply to certain advertisements.
Beginning December 12, 2008, all Internet advertisements that provide a "direct means" to purchase or order products that require a choking hazard warning must include the specified warning in the advertisement itself. In addition, beginning February 10, 2009, the same warning requirement will apply to catalogs and other print advertisements that provide a "direct means" to purchase or order such products. There is a grace period of 180 days (until August 9, 2009), however, for catalogues and other print ads that are printed before February 10.
The requirement applies to advertisements by manufacturers, importers, distributors, private labelers and retailers (collectively "suppliers") -- essentially everyone in the distribution chain. CPSC has excluded business to business print advertisements, unless the recipient business could be expected to be purchasing the product for use by children instead of for resale (e.g., catalogs directed at schools, day care centers and churches). The law also requires suppliers to inform retailers as to which products require choking hazard warnings, so that retailers can meet their duty to include warnings in advertisements.
Violations of the advertising requirement carry potential civil penalties that will climb to up to $15 million during 2009, as well as criminal penalties. Further, expect state Attorneys General to be policing this requirement, as the law gives them enforcement authority to seek injunctive relief. And, state AGs may seek to combine such actions with claims under state law that may provide for penalties and/or attorneys fees.
