The Consumer Product Safety Commission (“CPSC” or “Commission”) recently voted 3 to 2 to approve a final interpretive rule for the term “children’s products,” as that term is used in the Consumer Product Safety Improvement Act of 2008 (“CPSIA”). Given the wide range of products that could be covered by that term and the significant consequences if they are covered, manufacturers, distributors, and retailers had been anxiously awaiting guidance from the Commission. Many of those entities, however, may not have received the specific, bright line guidance they were seeking. The final rule is available on the CPSC’s website¹ and becomes effective immediately upon its publication in the Federal Register.

CPSIA Definition of “Children’s Product”

The CPSIA defines “children’s product” as “a consumer product designed or intended primarily for children 12 years of age or younger.“² To determine if a product is “designed or intended primarily for children 12 years of age or younger,” the CPSC is required to consider the following factors: (1) a statement by a manufacturer about the intended use of the product, including reasonable labeling statements; (2) whether the product is represented in its packaging display, promotion, or advertising as appropriate for use by children twelve years old or younger; (3) whether the product is commonly recognized by consumers as being intended for use by a child twelve years old or younger; or (4) factors found in The Age Determination Guidelines issued by the Commission.

The Commission’s interpretive rule is intended to elaborate on the CPSIA definition of children’s products to help manufacturers determine if a product must comply with CPSIA requirements for children’s products. The CPSIA applies specific requirements to children’s products, such as regulations regarding lead levels and phthalates, and third-party testing requirements for products deemed “children’s products.”

Overview of the New Interpretive Rule

The CPSC’s new interpretive rule contains a number of factors and exemptions intended to guide a manufacturer’s determination about whether a product is a children’s product.

The CPSC noted that the statutory definition of “children’s product” incorporates the concept of “use” by the child in some physical manner. Under the CPSC’s final rule, the CPSC will interpret the term “for use” by children 12 years or younger to generally mean that “children will physically interact with such products based on the reasonably foreseeable use of such product.” This definition would excluded items only used by children’s caregivers, such as diaper bags and other products that are not intended for physical use by the child. The CPSC’s proposed rule had also focused on the foreseeable misuse of the product; however, the Commissioners, in creating the final rule, noted that foreseeable misuse may be difficult for a manufacturer to determine. Therefore, the final rule only focuses on the foreseeable use rather than misuse of a product.

The new rule also addresses the four factors that the CPSC must take into account under the CPSIA’s definition of children’s product. This provision of the new rule provides additional guidance regarding how the CPSC will interpret these factors, such as when a manufacturer’s labeling statement that a product is not intended for children twelve years old or younger is reasonable and what factors the CPSC will consider to determine if a product is promoted for children twelve years old or younger.
- For example, the CPSC will consider whether the product is sized for children twelve years old or younger when determining if a manufacturer’s statements regarding the intended age are reasonable.
- Further, the CPSC may consider factors such as the express and implied marketing claims made about a product, the product’s physical location near other products intended for a certain age category, and features and characteristics of a product that would make it inappropriate for children twelve years old or younger.

The CPSC’s final rule also provides specific examples regarding when certain types of products will be considered children’s products. Examples provided by the CPSC relate to furnishing and fixtures, CDs and DVDs, books, sports and recreation equipment, and jewelry. Within these categories, examples of products that the CPSC may consider to be a children’s product include:
- Furniture that would primarily appeal to children, such as child-sized desks and chairs, and furniture decorated with child-themed items;
- Children’s movies, games, and education software;
- Low-cost jewelry bearing childish-themes that are sold with other children’s products or sold at a store that primarily contains children’s products;
- Books that match the interests and cognitive capabilities of children twelve years old or younger; and
- Sporting equipment that is sized for children twelve years old or younger or contains features that make that equipment more appropriate for children twelve years old or younger than adults.

Certain high-cost adult collectible products, such as model trains and railroad products that are primarily used by adult hobbyists would not be deemed children’s products. The final rule provides factors to guide manufacturers in their determination of whether a product is an adult collectible product or a children’s product, such as cost, fragile features, limited production, and other elements that make the product inappropriate for children twelve years old or younger.

New language in the final rule also addresses art materials, science equipment, and musical instruments used by children twelve years old or younger. For example, the new rule notes that if a distributor or retailer sells or rents a general use product in bulk to entities that distribute the product to children twelve years old or younger in education settings, this action by itself will not convert an otherwise general use product into a children’s product. On the other hand, the final rule notes that if a product is packaged in a way that expressly or impliedly indicates that the product is designed primarily for children twelve years old or younger (e.g., graphics, themes, labeling, or instructions indicating the age target of the product), then the Commission may consider the product a children’s product.

Additionally, the CPSC added language to the final rule clarifying that art materials do not require third-party testing and certification to demonstrate compliance with the Labeling of Hazardous Art Materials Act (“LHAMA”). Art materials designed or intended primarily for children twelve years old or younger, however, do have to be third-party tested to demonstrate compliance with the CPSIA.

Negative Votes from Commissioners Nord and Northup

Commissioners Nancy Nord and Anne Northup voted against the final rule. Commissioner Nord criticized the rule’s broadness and lack of clarity noting that the “final rule lacks useful guidance for the staff and even less clarity for the regulated community” and includes products within the definition of children’s products that do not pose a significant safety risk for children. Commissioner Northup also criticized the broadness of the rule, which does not accomplish her stated goals - to “reduce the number of products that must unnecessarily bear the burdens imposed by the [CPSIA]” and “provide clarity to manufacturers.“

Additionally, Commissioner Nord criticized the rule’s effective date. As noted, the final rule will become effective upon its publication in the Federal Register, immediately subjecting products that have “morphed into children’s products because of this rule” to the CPSIA’s requirements. Although the final rule is an interpretative document not a regulation, Commissioner Nord noted that the CPSC will use the guidance in the document for compliance decisions, therefore, companies that do not comply with the rule could likely face compliance actions.

Kelley Drye & Warren LLP

Kelley Drye & Warren’s Consumer Product Safety practice group is experienced in providing advice on the difficult issues of how and when potentially hazardous consumer products must be reported to the CPSC. If product recalls are necessary, we work with our clients and CPSC staff to quickly develop and implement cost-effective communications programs that satisfy product liability concerns and minimize potential penalties. When the CPSC threatens or brings enforcement actions, we advise our clients on appropriate strategies. For more information about this client advisory, please contact:

Christie Grymes Thompson
(202) 342-8633
cgthompson@kelleydrye.com

¹ The final rule is available at http://www.cpsc.gov/s3fs-public/pdfs/blk_pdf_interpretive.pdf.

² 15 U.S.C. § 2052(a)(2).