On October 14, 2010, the Consumer Product Safety Commission (CPSC) published in the Federal Register a final interpretive rule defining the term “children’s product,” a key term under the Consumer Product Safety Improvement Act of 2008 (CPSIA). “Children’s products” are subject to strict requirements under the CPSIA—lead content limits, certification by the importer or domestic manufacturer based upon safety testing by a third-party laboratory, and tracking labels. Therefore, companies have been grappling with and seeking clarification about what is and is not a “children’s product” under the law since the CPSIA became law on August 14, 2008. Whether the interpretive rule provides the necessary guidance is open to question even among the CPSC commissioners. Chairman Inez Tenenbaum and commissioners Robert Adler and Thomas Moore voted to adopt the rule, while the two Republican commissioners, Nancy Nord and Anne Northup, voted against the rule, claiming that it fails to provide necessary clarification and, in some cases, goes too far in what will be deemed to be a children’s product.
The CPSIA defines a “children’s product” as a “consumer product designed or intended primarily for children 12 years of age or younger.” In contrast, CPSC has defined “general use product” as a consumer product “designed or intended primarily for consumers older than age 12.” General use products may include those with which a “child would not likely interact” or those with which “consumers older than 12 would be as likely, or more likely to interact.” Four statutory factors must be considered “together as a whole” to determine whether a product is primarily intended for a child 12 years or younger.
The four factors are:
- A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.
- Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younge.
- Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.
- The Age Determination Guidelines issued by the CPSC staff in September 2002.
The statutory factors focus on whether a product is “for use” by children 12 years of younger, i.e. whether children will physically interact with the product, based on the “reasonably foreseeable use” of the product.
Those seeking certainty from CPSC on what constitutes a “children’s product” may well be dissatisfied by the case-by-case approach that remains under the final rule. However, the majority evidently felt constrained by the CPSIA’s requirement that determinations of whether a product is a “children’s product” be based upon an evaluation of the four statutory factors, and ultimately erred on the side of retaining flexibility to address products individually rather than making categorical determinations in the rule. While the final rule is an important chapter in defining the term “children’s product,” this remains an evolving standard. The published final rule is available here.
A more detailed summary of the interpretive rule and examples from the rule of items likely to be considered “children’s products” or “general use products” is available here.