CPSC Posts Draft Final Rule on Interpretation of "Children's Product" Under the CPSIA

August 25, 2010

The Consumer Product Safety Commission (CPSC) has posted to its website a draft final interpretative rule providing guidance on what factors will be considered when evaluating what a “children’s product” is for purposes of the Consumer Product Safety Improvement Act of 2008 (CPSIA). Several provisions of the CPSIA create new mandatory safety standards for “children’s products.” One such provision in section 101(a) of the Act reduced the allowable lead content limit in a children’s product to 300 parts per million as of August 14, 2009.

However, the statute only vaguely defines a children’s product as “a consumer product designed or intended for children 12 years of age or younger,” and specifies certain factors that should be taken into consideration when making a determination about whether a consumer product meets this definition. According to the statute, such factors include the manufacturers intended use of the product; the packaging, display, promotion and advertising of the product; consumer perception; and the CPSC’s age determination guidelines.

The proposed interpretative rule would further clarify the statutory language by, among other things, establishing the following guidelines:

• “For use” by children 12 years or younger generally means that children will physically interact with suck products based on foreseeable use and misuse of the product.
• Representations about the intended use by children 12 years or younger that may be found in packaging, text, illustrations, photographs, instructions, assembly manuals, or advertising materials used to market the product whether explicitly stated or implied may be considered when making a determination.
• A product’s association or marketing in conjunction with non-children’s products may not be determinative, but the CPSC will continue to be evaluated products based on the entire domestic market.
• A manufacturer’s statement that a product is not intended for children does not preclude the product from being regulated as a children’s product, even its primary appeal is to children older than 12.

The CPSC will vote on September 9, 2010 on whether to accept that draft final interpretive rule. If accepted, the final rule will be published in the Federal Register and be subject to public consultation period before becoming effective. For more information on the rules implications, please contact a Barnes/Richardson attorney.