The Consumer Product Safety Commission (the "CPSC") is currently accepting comments on its proposed rule interpreting the phrase "children's products." Manufacturers and distributors of finished products and components of products should review the full text of the proposed rule and submit comments if appropriate. The CPSC is particularly interested in comments on how manufacturers generally determine the age of the consumers for whom their products are primarily intended and what other criteria, if any, should be considered in determining whether a consumer product is a children's product. Comments are due by June 21, 2010.
In August 2008, then-president Bush signed into law the Consumer Product Safety Improvement Act of 2008 (the "CPSIA") to enhance the powers of the CPSC to protect American consumers from unsafe products. One of the fundamental purposes of the CPSIA is to regulate the manufacturing and distribution of children's products, which the CPSIA defines as "consumer product[s] designed or intended primarily for children 12 years of age or younger."
When a product is determined to be a children's product, it is subject to a strict set of rules and restrictions, including testing by a third-party facility, restrictions on acceptable levels of lead and phthalates, mandatory tracking labels, and required cautionary statements in advertising. These rules are different from those for general use products, which are subject to far less stringent controls. Manufacturers and distributors of products that could potentially be regulated under the CPSIA have expressed concern that the term "children's products" is not sufficiently clear. In response, the CPSC has proposed an interpretive rule to provide more specific guidance as to what products will be considered children's products. To that end, the proposed rule focuses on three things: (1) clarifying the definition of children's products, (2) expanding on the interpretive factors already provided by the rule, and (3) providing additional guidance through examples.
1. Designed or Intended Primarily: The proposed rule clarifies the phrase "designed or intended primarily for children 12 years of age or younger" to apply to consumer products designed or intended mainly for children 12 years old or younger. By way of illustration, the CPSC has focused on the product's appeal: products that may be used by 12-year-olds but that have a declining appeal for teenagers will likely be considered children's products. In contrast, if a product may be just as appealing for a child older than 12, or if potential consumers older than 12 are as likely or more likely to use the product, those products will not be considered children's products.
2. Clarification of Factors: The statutory definition of children' products specifies certain factors that are to be taken into consideration when making that determination. The proposed rule aims to clarify and expand on those factors, as well as to clarify the definition of the phrase "for use," which the CPSC interprets "to generally mean that children will physically interact with such products based on the reasonably foreseeable use and misuse of such product."
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