CPSC Approves Final Rule on CPSIA Definition of Children’s Products

(Note that most of the requirements introduced by the CPSIA apply to "children’s products" - the phthalates bans, lead content limits, third-party testing, tracking labels, etc. Also note that the CPSIA already defines children’s products as consumer products designed or intended primarily for children 12 years old or younger and outlines four statutory factors¹ to consider in determining whether a consumer product is for children.)

Final Version Makes Six Significant Changes from Draft

The Commissioners states that in most respects, the finalized version of the rule is the same as the draft version previously posted by CPSC. (See ITT's Online Archives or 08/27/10 news, 10082716 for BP summary of the draft interpretive final rule.)

However, it makes the following six changes of significance:

Removal of “foreseeable misuse.” The draft version had included the following language on use of a product by children: “The term “for use” by children 12 years or younger generally means that children will physically interact with such products based on the reasonably foreseeable use and misuse of such product.” Upon reflection, CPSC believes that foreseeable misuse in this context may be difficult for a manufacturer to determine and that an analysis of the foreseeable uses should be adequate. Therefore, they are only including language on reasonably foreseeable uses in the final version of the rule.

Age distinctions for CDs/DVDs. CPSC says it has removed some “artificial age distinctions” that had appeared in the draft version of the rule in the section on compact discs (CDs) and digital video discs (DVDs) (i.e, a distinction between those meant for infants and those meant for slightly older children.) They have determined that this distinction only complicates matters and is removing it. They have also clarified in the final rule that CDs and DVDs could be considered children’s products if such movies, videos, games and music were specifically made for and marketed to children and have little or no appeal to older audiences. CPSC adds that age ratings will be considered in making age determinations for CDs.

Art materials, science equipment, instruments. The Commission says it has added language on art materials, science equipment, and musical instruments. It is clarifying that if a distributor or retailer sells or rents a general use product in bulk to distribution channels that target children 12 years of age or younger in educational settings, that this type of a distribution strategy by itself would not necessarily convert an otherwise general use product into a children’s product. However, they do note that if a product is packaged in such a way that expressly states or implies with graphics, themes, labeling, or instructions that the product is designed primarily for children 12 and younger, then it may be considered a children’s product, taking into account the four statutory factors¹.

Children’s lamps. In the draft final rule, CPSC had made certain statements about excluding nursery themed lamps, as infants and very small children would not have the motor skills to touch them. CPSC has determined that such distinctions are not supported by statute and has modified the final rule to state that a determination of whether a nursery themed lamp is a children’s product should be based on a consideration of the four statutory factors¹, just like all other products.

Art materials and LHAMA. CPSC has added language to clarify that art materials do not require third-party testing and certification to show compliance with the Labeling of Hazardous Art Materials Act (LHAMA) requirements, as CPSC generally does not require third-party testing for labeling requirements. However, art materials designed or intended primarily for children 12 years of age or younger do have to be third-party tested and certified to show compliance with the CPSIA.

Adding “hobbyist” to train section. CPSC is adding language to clarify that certain model railroads and train sets are made for hobbyists, not children.

Commissioners Disagree over Clarity of Final Rule, Whether Has Force of Law

The Commissioners all agreed that the intent of the interpretive rule was to provide additional clarity on the CPSIA definition of children’s products in order to help the trade determine whether their products are children’s products. However, the two dissenting Commissioners, Nord and Northup, do not believe the rule offered sufficient clarity for them to vote for it.

There was also some disagreement on Commissioner Tenenbaum’s statement that interpretive rules do not have the force of law. According to Commissioners Nord and Northup, while this may be technically true, companies will still analyze the rule and make costly decisions based on its guidance.

¹The four factors are: (1) a statement by the manufacturer about the intended use of the product, including a label on the product, if such statement is reasonable; (2) whether the product is represented in its packaging display, promotion, or advertising as appropriate for use by children 12 years of age or younger; (3) whether the product is commonly recognized by consumers as being intended for use by children 12 or younger; and (4) CPSC’s 2002 (or any successor) Age Determination Guidelines.

Commissioner statements are available here.