Traps For the Unwary Under the Consumer Product Safety Act: Children's Products

Nestled in the morass known as the Consumer Product Safety Act (as amended by the dubiously titled Consumer Product Safety Improvement Act of 2008 and further amended in 2011) are provisions that can wreak havoc for businesses that manage, understandably, to overlook them.  What was once a rather straightforward reporting and recall system involving a relatively small number of federal safety standards has evolved into a complex beast of certifications, third-party testing, and training programs. While it is beyond the scope of this post to identify and discuss all of the requirements of these laws, there are some provisions that our readers should know about. This article addresses one of the thorniest of all: children’s products.

A host of new requirements apply to children’s products, and the determination of what is – and what is not – a children’s product is now no easy matter.  Generally speaking, a children’s product is one designed or intended primarily for children 12 years of age or younger, but the CPSC’s own complex “interpretive guidance” on the question betrays the superficial simplicity of this inquiry.  There are almost no clear rules, and, on matters that could lend clarity to the situation, like a reliable product labeling/marking regime that would put the onus on parents and other responsible adults to keep certain products away from children, the CPSC manages to make things even murkier.

Report, Recall, or Both: Do You Know Your Obligations Under the Consumer Product Safety Act?

Manufacturers, importers, distributors, and retailers of consumer products have a legal obligation to report hazardous or dangerous products to the Consumer Product Safety Commission ("CPSC"). Failing to do so may result not only in large civil penalties, but also criminal prosecution. But, there are many common myths and misconceptions about this reporting requirement and how it relates to the separate question of whether a product recall ought to be commenced. Here are just a few:

Myth One: “I only need to report to the CPSC if someone is injured by a product I sell.”

In truth, a reporting obligation can arise if not a single consumer has been injured. The law requires the reporting of “unreasonably hazardous or dangerous” products that pose a risk to consumers—even if the risk of harm has never been realized. The possibility of harm, alone, triggers a reporting obligation.

Myth Two: “I can avoid the need to report simply by sending a communication to my customers telling them how to avoid being injured by the product.”

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.