March 22, 2010

The Office of the General Counsel of the U.S. Consumer Product Safety Commission (CPSC) last week provided a notice to the Commission on a proposed interpretive rule designed to provide guidance on the factors that must be considered when evaluating what is a children's product.

Several requirements of the Consumer Product Safety Improvement Act of 2008 (CPSIA) refer to children's products. As defined in the Consumer Product Safety Act, a children's product is "a consumer product designed or intended primarily for children 12 years of age or younger." The CPSIA also specifies certain factors that should be taken into consideration when making a determination about whether a product is "intended primarily for children," specifically:

• A statement by a manufacturer about the intended use of such product, including a label on such product if such a statement is reasonable.

• Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.

• Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.

• The Age Determination Guidelines issued by the Commission staff in September 2002, and any successor to such guidelines.

The proposed interpretative rule suggests the following new definitions:

Children's Product: A consumer product designed or intended primarily for children 12 years of age or younger. The term "designed or intended primarily" applies to those products designed and commonly recognized as intended for use by a population of consumers constituted by a significant proportion of children 12 years old or younger. Products intended for use by children 12 years or younger applies to those products children will physically interact with based on the reasonably foreseeable use and misuse of such products.

General Use Product: A consumer product that is not being marketed to or advertised as being primarily intended for use by children 12 years old or younger and that is used by a significant proportion of the population older than 12 years of age.

In addition, the proposed interpretive rule includes significant discussion of the accompanying factors and provides specific examples within product categories -- information clearly designed to provide further guidance to manufacturers on how to evaluate their consumer products as they attempt to determine whether those products are children's products. 

The contents of the proposed rule will be discussed at the Commission's meeting which begins at 9:00 a.m. on Wednesday, March 24, 2010. This meeting is open to the public and is available via webcast. If approved by the Commission, the draft proposed interpretive rule would be published in the Federal Register and would be open to public comment for thirty days. Any final rule based on this proposal would become effective upon publication of a final interpretative rule in the Federal Register. Proposed Interpretive Rule.