Industry News

Proposed Rule Provides Guidance on Scope of Some CPSIA Requirements

April 29, 2010


On April 20, 2010, the Consumer Product Safety Commission (CSPC) issued a proposed rule that would provide guidance on what qualifies as a “children’s product” under the Consumer Product Safety Improvement Act of 2008 (CPSIA). Since many requirements of the CPSIA, such as the lead content limits, tracking labels, third party testing, etc., apply only to “children’s products,” the CPSC’s definition of this term could have a significant impact on the Act’s scope.

Section 235 (a) of the CPSIA defines a “children’s product” as a “consumer product designed or intended primarily for children 12 years of age or younger.” The CPSIA also specifies four factors that are to be taken into consideration when determining “whether a consumer product is primarily intended for a child 12 years of age or younger.” These factors are:

  • A statement by a manufacture 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 younger;
  • Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger; and
  • The Age Determination Guidelines issued by the CSPC in September 2002 and any successor to such guidelines.

CPSC’s proposed rule would provide the following guidance on how manufactures should evaluate consumer products in light of these factors to determine the applicability of the CPSIA:

Designed or Intended “Primarily” for Children: The proposed rule would interpret the term to apply to consumer products mainly for children 12 years old or younger.

  • “For Use”:   would be interpreted to generally mean that children will physically interact with such products based on the reasonably foreseeable use and misuse of the product.
  • General Use Products: The proposed rule would define these general use products as mainly for consumers older than age 12. Some products may be designed or intended for consumers of all ages, including those 12 and younger, but are intended for consumers older than 12.

For example, the fact that pens or other office supplies may also be used by children does not convert them into a “children’s product.” However, when a general use product, such as a pen, is decorated by adding certain features to appeal to children, the general use product may be converted into a children’s product due to theses characteristics. A further evaluation would be made regarding whether a child would be likely to physically inter act with such a pen would then have to be made.

Manufacturers Statement: A manufacturer’s statement about the product’s intended use, including labeling on the product, should be considering in determining its uses. However, the manufacturer’s label is not considered to be determinative. For example, a manufacturer’s statement that the product is not intended for children would not preclude a product from being regulated as a children’s product.

Product Presentation: A product’s representation as a product for use by children could be found in packaging, text, photographs, assembly manuals, advertising, etc. The representations can be obvious (advertising declaring use for children under 12) or implied (advertising showing the product being used by toddlers). The prominence, conspicuousness, and or other emphasis given to each portrayal of a product’s uses or intended users could be weighted differently according to which images or messages are the strongest and most obvious to the consumer at the point of purchase.

Commonly Recognized by Consumers:    Manufacturers should evaluate whether their products are commonly recognized by consumers as being intended for use by a child 12 years of age or younger. For example, versions of traditional board games, such as checkers, are commonly considered to appeal to a general audience and as such, not considered to be a children’s product. However, if the manufacturer adds marketing portrayals or other features to the game to make it more attractive to children, the general use conception would be voided.

Age Determination Guidelines: CPSC’s 2002 Age Determination Guidelines help answer questions regarding children's interactions with consumer products by addressing questions such as, "Does the subject product appeal to children?" and "Can a child properly use the subject product?" The Guidelines describe the capabilities and skills that children of various age groups can be reasonably expected to use in interactions with consumer products.

Features and Characteristics of Children’s Products: Consumers commonly recognize products as being intended for the use by child based on certain product features, including:

  • Small sizes;
  • Exaggerated features;
  • Colors commonly associated with childhood;
  • Certain decorative motifs;
  • And play value.

The more of these types of characteristics that a product has, the greater the likelihood that the product is a children’s product.

Cost Considerations: The cost of a given product may influence the determination of the age of intended users. Very expensive items are less likely to be given to children.

Children’s Interaction with the Product: The foreseeable use or misuse of a product by a product must be evaluated. Products for use in a children’s environment, but not intended for use by the child may be exempt. Such products may include a nursery themed lamp or clock, placed in an infant’s room but not operated by children.

The proposed rule also provides several examples of products considered to be children’s products, and those considered to be adult or general use products. To view the proposed rule and these specific examples, click here.

The CPSC will accept all comments on its proposed rule submitted by June 21, 2010. For more information on the proposed rule, or to submit comments, contact a Barnes/Richardson attorney.

Of related interest, on April 28, 2010, the CPSC issued proposed rules that would create mandatory safety standards for toddler beds and bassinets and cradles. To view these rules, click here for toddler beds and here forbassinets.