Are You Selling "Children's Products"?

When Congress passed the Consumer Product Safety Improvement Act (the “CPSIA”) in 2008, it included a new definition of what constitutes a "children's product." Along with that new definition came a host of onerous testing, certification, and product design/composition standards. If the products you're selling fall into this category, your legal obligations expand dramatically to include third-party certification, substrate testing for lead, prohibitions on phthalates, product tracking labels, and more.  And so, the question of "What is a children's product?" becomes extraordinarily consequential for wholesalers, retailers, "private labelers," and importers.

As is traditionally the case with "age grading" of products, the CPSIA's definition generalizes things to the point of providing very little practical guidance on many products.  Under the new regime, a "children's product" is "a consumer product designed or intended primarily for children 12 years of age and under." While it is one thing to say roughly which products are intended for children who are two, or four, or six, or even eight, products of interest to many twelve-year-olds also appeal to older teens and even adults. Is a product primarily intended for twelve-year-olds if it broadly appeals to teenagers, for example? How closely must you parse the demographics of potential customers to figure out whether your audience is likely to be "primarily" twelve-year-olds? Coupling this with analysis of design aims and product "intentions" makes matters even more complex.

Into this analytical quagmire, the Consumer Product Safety Commission (“CPSC”) has now dropped 50 pages of industry guidance, including a brand new proposed regulation.  Once you dive in, it doesn't take long to realize that some of the products you thought were children's items may not be. Worse yet, some products that you reasonably might have concluded were "not designed or primarily intended for children 12 years" or younger may well be viewed very differently by the CPSC.  In other words, the CPSC has raised as many questions as it answers.

The CPSIA, itself, does provide some limited guidance as to "factors" to be considered in determining if you're selling a children's product. You are asked to consider: (1) manufacturer's statements (including those on labels), if such statements are reasonable; (2) whether packaging, display, promotion, or advertising present the item as appropriate for use by children 12 years of age or under; (3) whether the product is commonly recognized as being intended for children 12 years of age or under; and (4) the CPSC's own "Age Determination Guidelines" which were last published in 2002.

The problem with these "factors" is that none focus on the question of whether the product is "primarily" designed and intended for children twelve years of age or under. Moreover, the Age Determination Guidelines document from 2002 is a densely written quasi-scientific overview of cognition, motor skills, and psychological and emotional development in certain ranges of ages which offers very little practical help in close cases -- particularly at the older range of the continuum. One thing the document does is show that determining the proper age group for a product is much easier for the younger age groups, but gets very foggy for eleven- and twelve-years-olds. Indeed, the document itself notes that, at twelve, a child's thinking is more "adult-like." The Guidelines also note, problematically for any company trying to sort out the "intended age" question, that twelve-year-olds will be drawn (like a magnet, probably) to products that appeal to older teens.

What does the new guidance offer to rectify this? The regulation first divides products into two basic categories: "general use products" and “children's products.” General use products are those "not being marketed to or advertised as being primarily intended for use by children 12 years or younger and that are used by a significant proportion of the population older than 12 years of age." 16 C.F.R. 1500.92(b) (as proposed).  The second half of this definition is poorly written and makes little sense. But, I think the language is intended to mean that a significant portion of the product’s users are older than 12 years of age. Additionally, because the definition is in the conjunctive ("and"), it would appear that a product is for "general use" as long as it is not "marketed or advertised" as intended for use by children 12 years of age or younger. This would make life easy for the industry:  you can control your legal obligations by controlling your marketing.

But, the proposed definition of "children's product" muddies the water.  The test for a “children’s product” is whether the product is "designed and commonly recognized as intended for use by a significant proportion of children 12 year of age or younger," and includes in the term "use" all reasonably foreseeable "misuse." In other words, a product can be a "general use product" and a "children's product" simultaneously -- even if (1) the sole projected “use” by children twelve and under is a “misuse” and (2) the product is not advertised or marketed to that age group.

Under the proposed regulation, Sellers are expected to make an assessment of what "common recognitions" are for use of the product -- with the specific proviso that such a determination likely involves "[m]arket analyses, focus group testing, and other marketing studies..." In other words, small and large companies alike must now engage in vigorous market studies in order to limit the risk that a product may, after the fact, be deemed a children's product by the CPSC.

The regulation is helpful in that it provides a list of product categories and explains how those products would be treated under the new guidelines. Even though such categories are filled with their own caveats, they do give sellers some degree of comfort in the areas that are expressly discussed. The categories include:

• Furniture and furnishings: These are generally not considered children's products unless they are decorated with a child's theme, have play value, or are sized for a child. "Decorative items that are intended only for display, with which children are not likely to interact, are generally not considered children's products, since they are intended to be used for adults."

• Collectibles: Collectibles, even those that might otherwise qualify as children's products, can avoid this categorization if they have features that preclude use by children during play, "such as high cost, limited production, [and] display features, and [if they] are not marketed alongside children's products."

• Jewelry: The test is whether the product is generally sized, themed, and marketed to children. Factors to consider include, among other things: very low cost; play value; childish themes on the jewelry; sale with other children's products (such as a children's dresses); sales with children's books, toys, or party favors; and sale in store (or catalog/web site) that mainly sells children's products.

• DVDs, Video Games, and Computers: Logically, most computer products and electronic media devices are not considered children's products. However, handheld video games "with software intended for children...younger than 12 years" may qualify as such.

• Art Materials: The marketing and labeling of these are given high priority.

• Sporting Goods and Recreational Equipment: Regulation-sized sporting equipment and recreational equipment (like roller blades, camping gear, bicycles, and fitness equipment) are generally not considered children's items, unless they are sized for children and/or are decorated with childish themes.

This guidance indirectly underscores the broad reach of the proposed regulation -- everything from bicycles to camping gear to books to electronic equipment and more can be subject to onerous new product safety requirements.