[Federal Register: April 20, 2010 (Volume 75, Number 75)]
[Proposed Rules]
[Page 20533-20541]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20ap10-13]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1500
[Docket No. CPSC-2010-0029]
Interpretation of ``Children's Product''
AGENCY: Consumer Product Safety Commission.
ACTION: Proposed interpretative rule.
-----------------------------------------------------------------------
SUMMARY: The Consumer Product Safety Commission (``CPSC,''
``Commission,'' or ``we'') is issuing a proposed interpretative rule
that would interpret the term ``children's product'' as used in the
Consumer Product Safety Improvement Act of 2008 (``CPSIA''), Public Law
110-314. The proposal would provide additional guidance on the factors
that must be considered when evaluating what is a children's product.
DATES: Written comments and submissions in response to this notice must
be received by June 21, 2010.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0029, by any of the following methods:
Electronic Submissions
Submit electronic comments in the following way: Federal
eRulemaking Portal: http://www.regulations.gov. Follow the instructions
for submitting comments. To ensure timely processing of comments, the
Commission is no longer accepting comments submitted by electronic mail
(e-mail) except through http://www.regulations.gov.
Written Submissions
Submit written submissions in the following way: Mail/Hand
delivery/Courier (for paper, disk, or CD-ROM submissions), preferably
in five copies, to: Office of the Secretary, Consumer Product Safety
Commission, Room 502, 4330 East West Highway, Bethesda, MD 20814;
telephone (301) 504-7923.
Instructions: All submissions received must include the agency name
and docket number for this proposed rulemaking. All comments received
may be posted without change, including any personal identifiers,
contact information, or other personal information provided, to http://
www.regulations.gov. Do not submit confidential business information,
trade secret information, or other sensitive or protected information
electronically. Such information should be submitted in writing.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jonathan D. Midgett, Office of Hazard
Identification, Consumer Product Safety Commission, 4330 East West
Highway, Bethesda, Maryland 20814; telephone
[[Page 20534]]
(301) 504-7692, e-mail jmidgett@cpsc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Section 235(a) of the CPSIA amended section 3(a)(2) the Consumer
Product Safety Act (``CPSA'') by creating a new definition of
``children's product.'' 15 U.S.C. 2052(a)(2). ``Children's product'' is
defined as ``a consumer product designed or intended primarily for
children 12 years of age or younger.'' Several CPSIA provisions use the
term ``children's product.'' For example, section 101(a) of the CPSIA
provides that, as of August 14, 2009, children's products may not
contain more than 300 parts per million (ppm) of lead. On August 14,
2011, the limit shall be reduced to 100 ppm, unless the Commission
determines that it is not technologically feasible to move to this
lower limit for a particular product or product category. As another
example, section 102 of the CPSIA requires third party testing of
certain children's products, and section 103 of the CPSIA requires
tracking labels for children's products.
The statutory definition of ``children's product'' also specifies
certain factors that are to be taken into consideration when making a
determination about ``whether a consumer product is primarily intended
for a child 12 years of age or younger.'' These factors are:
A statement by a manufacturer about the intended use of
such product, including a label on such product if such 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; and
The Age Determination Guidelines issued by the Commission
staff in September 2002 and any successor to such guidelines.
The proposed interpretative rule would create a new Sec. 1500.92,
``Definition of Children's Product.'' \1\ The proposal would discuss
the statutory definition and accompanying factors to provide guidance
on how manufacturers can evaluate consumer products to determine
whether such products are children's products. The additional guidance
will provide a better understanding by manufacturers and the public of
our approach to evaluating children's products.
---------------------------------------------------------------------------
\1\ The Commission voted 5-0 to publish this proposed
interpretative rule, with changes, in the Federal Register. Chairman
Inez M. Tenenbaum, and Commissioners Thomas H. Moore, Nancy Nord,
Robert Adler, and Anne Northup voted to publish the notice with
changes. Chairman Tenenbaum issued a statement, and the statement
can be found at http://www.cpsc.gov/PR/tenenbaum03312010.pdf.
Commissioner Northup also issued a statement, and the statement can
be found at http://www.cpsc.gov/pr/northup03312010.pdf.
---------------------------------------------------------------------------
II. Description of the Proposed Interpretative Rule
A. Designed or Intended ``Primarily'' for Children
Section 3(a)(2) of the CPSA defines a ``children's product'' as ``a
consumer product designed or intended primarily for children 12 years
of age or younger.'' We interpret the term ``designed or intended
primarily'' to apply to those consumer products mainly for children 12
years old or younger. A determination of whether a product is a
``children's product'' will be based on consideration of the four
specified statutory factors as further described in the discussion and
examples provided in this interpretative rule. Because each of those
four factors incorporates the concept of ``use'' by the child in some
manner, we further interpret the term ``for use'' by children 12 years
or younger to generally mean that children will physically interact
with such products based on the reasonably foreseeable use and misuse
of such product.
In contrast, products intended for general use, are products that
are not designed or intended primarily for use by children 12 years old
or younger. General use products are those consumer products mainly for
consumers older than 12 years of age. Some products may be designed or
intended for consumers of all ages, including children 12 years old or
younger, but are intended mainly for consumers older than 12 years of
age. The Commission has given examples of what it considers to be
general use products. For example, most pens, or other office supplies,
are not considered children's products because they are mainly used by
the general public. The fact that pens or other office supplies may
also be used by children does not convert them into children's
products. However, when a general use product, such as a pen, is
decorated or embellished by adding certain features that may appeal to
children, such as childish themes or play value, the general use
product may be converted or transformed into a children's product due
to these additional features or characteristics. A further evaluation
would be made regarding whether, in fact, a child would be likely to
physically interact with such a pen, and how such interactions would
occur, including the reasonably foreseeable use and misuse of the
product by the child. If a child is unlikely to interact with the pen
because the theme would not be of interest, or if an older child or
adult is as likely, or more likely to interact with the pen than a
child, such a pen would not be a product designed or intended primarily
for children 12 years of age or younger, and thus, would not be
considered a children's product.
Where a product such as a backpack or certain recreational
equipment may be just as appealing for a child older than 12, or if
consumers older than 12 years of age are as likely or more likely to
use the product, those products may not be considered children's
products. Although these products can be used by children under the age
of 12, the long-term use of these products would extend to consumers
older than 12 years of age. However, other products used by 12-year-
olds (e.g., child-themed lunchboxes) have a declining appeal for
teenagers. Where a product's appeal lessens as a child moves past the
age of 12, it is likely that the product may be considered as designed
or intended primarily for children 12 years of age or younger.
Other products are specifically not intended for use by children 12
years of age or younger. These products, such as cigarette lighters,
candles, and fireworks, which the Commission has traditionally warned
adults to keep away from children, are not subject to the CPSIA's lead
limits, tracking label requirement, and third-party testing and
certification provisions. Similarly, we have indicated that products
that incorporate performance requirements for child resistance are not
children's products as they are designed specifically to ensure that
children cannot access the contents. This would include products such
as portable gasoline containers and special packaging under the Poison
Prevention Packaging Act.
In evaluating whether a particular product is designed or intended
primarily for a child, the CPSC staff makes an age determination for
the product which considers all of the facets of a product and the
following statutory factors.
B. Factors Considered (Proposed Sec. 1500.92(a) Through 1500.92(d))
1. Manufacturer's Statement
Section 3(a)(2)(A) of the CPSA lists a statement by a manufacturer
about the product's intended use, ``including a label on such product
if such statement
[[Page 20535]]
is reasonable,'' as a factor to be considered in determining whether a
product is primarily intended for a child 12 years of age or younger.
15 U.S.C. 2052(a)(2)(A). A manufacturer's statement that the product is
not intended for children does not preclude a product from being
regulated as a children's product if the primary appeal of the product
is to children 12 years of age or younger. Similarly, a label
indicating that a product is for ages 10 and up does not necessarily
make it a children's product if it is a general use product. Such a
label may recommend 10 years old as the earliest age for a prospective
user, not necessarily the age for which the product is primarily
intended.
A manufacturer's statement about a product's intended use,
including the product's label, should be reasonably consistent with the
expected use patterns for a product. The Commission will examine the
labeling to determine whether a product is appropriately age graded
consistent with the foreseeable uses and abuses of that product. The
Commission has never considered a manufacturer's label with regard to
age to be determinative where the stated age does not take into account
the foreseeable use and abuse of a product attractive to children. The
manufacturer's label, in and of itself, is not considered to be
determinative. We discuss common use patterns in further detail under
part I.B.3 of this preamble below.
2. Product Presentation
Another factor, at section 3(a)(2)(B) of the CPSA, is whether the
product is represented in its packaging, display, promotion, or
advertising as appropriate for use by children 12 years of age or
younger. 15 U.S.C. 2052(a)(2)(B). These representations can be express
(such as product advertising declaring that the product is for use by
children 12 years of age or younger) or implied (such as product
advertising showing the product being used by young children). These
representations may be found in packaging, text, illustrations and/or
photographs depicting consumers using the product, instructions,
assembly manuals, or advertising media used to market the product. The
prominence, conspicuousness, and or other emphasis given to each
portrayal of a product's uses or intended users on packaging or in
advertising media can be weighted differently according to which images
or messages are the strongest and most obvious to the consumer at the
point of purchase. For example, labeling in large, high contrast
letters on the front of a package sends a stronger message than block
letters in a small box on the package's side panel.
Besides labeling and illustrations, a product's physical location
in a retail outlet or visual associations in the pages of an online
distributor's Web site could imply its suitability for a certain age
group. The close association of a product in a store or on a Web site
with other products that are clearly intended for children 12 years of
age or younger could affect consumer perceptions of the intended age
group for that product. However, the retail location of a product may
not be dispositive of a children's product determination. For example,
if an electronic media device, such as a video game console, were sold
at toy stores, but were also sold in electronics stores or department
stores and marketed to consumers older than 12 years of age, then that
video game console likely would be considered a general use product
rather than a children's product. The Commission recognizes that
manufacturers need some certainty about whether their products are
children's products long before they reach store shelves, as tracking
labels must be applied and third-party testing must occur much earlier
in the chain of commerce. The Commission generally evaluates products
based on the entire domestic market as opposed to conducting a shelf-
by-shelf or store-by-store analysis. As a result, for instance,
inclusion in a catalogue focused exclusively on furnishings for babies
and toddlers does not necessarily convert a product that may have more
general appeal, such as a plain light blue, yellow, or ivory rug, into
a children's product.
Manufacturers may also include a general use item as one of several
items packaged together, such as a paper clip included in a magnet set
primarily intended for children ages 7 through 10 years old. The paper
clip may be a general use item but when included as part of the magnet
set, it would need to be tested to the applicable children's product
safety rules since the product is targeted primarily to children 12
years of age or younger.
Sometimes a product commonly recognized as primarily intended for
children is packaged with an adult product complicating the
determination of the intended recipient. Take, for example, a stuffed
animal packaged with a candle as a sentimental gift for Valentine's Day
or some other holiday. The candle is not a children's product and need
not comply with the requirements for children's products. The stuffed
animal, on the other hand, is likely to be considered a children's
product even though it has been combined in a promotion with a general
use or adult product. The stuffed animal must meet all the applicable
children's safety rules for the stuffed animal (i.e., small parts and
sharp edges under 16 CFR 1500.49 through 1500.53, the lead content or
lead paint limits under section 101 of the CPSIA and 16 CFR part 1303).
The manufacturer should expect that an adult will use the candle but
likely might give the stuffed animal to a child. In other words, a
children's product that is packaged with a general use product is
likely to remain a children's product.
3. Commonly Recognized by Consumers
Another factor, at section 3(a)(2)(C) of the CPSA, in determining
whether a consumer product is designed or intended primarily for a
child 12 years of age or younger is whether the product is commonly
recognized by consumers as being intended for use by a child 12 years
of age or younger. 15 U.S.C. 2052(a)(2)(C). For example, traditional
board and table games like chess, checkers, backgammon, playing cards,
or Chinese checkers are commonly recognized as equally attractive to
children and adults because the level of difficulty increases or
decreases depending on the player's skill. Versions of these games, and
similar games commonly considered by consumers to appeal to a general
audience, are not considered children's products. However, if a
manufacturer adds marketing portrayals or other features to the game or
its packaging that make it more attractive to or suitable for children
than a general use product would normally be, then the game could be
considered a children's product. Specifically, where a product such as
a board game exists in junior and regular versions, the junior version
likely would be considered a children's product and the regular version
likely would be considered a general use product.
To assess whether a product is commonly recognized by consumers as
being primarily intended for a child, a manufacturer should evaluate
the reasonably foreseeable uses and misuses of a product to determine
how the product will be perceived and used by consumers of that
product. Manufacturers could also refer to sales data, market analyses,
focus groups, or other marketing studies for their analyses of consumer
perceptions of their products as described further below.
[[Page 20536]]
(i). Features and Characteristics of Children's Products
A consumer product will commonly be recognized by consumers as
being intended for use by a child 12 years of age or younger based on
certain product features or characteristics. Certain childish features
or characteristics of children's products can be defined generally,
although there may be exceptions. Features that distinguish children's
products from adult products include, but are not limited to, such
factors as:
Small sizes that would not be comfortable for the average
adult;
Exaggerated features (large buttons, bright indicators)
that simplify the product's use;
Safety features that are not found on similar products
intended for adults;
Colors commonly associated with childhood (pinks, blues,
bright primary colors);
Decorative motifs commonly associated with childhood (such
as animals, insects, small vehicles, alphabets, dolls, clowns, and
puppets);
Features that do not enhance the product's utility, (such
as cartoons), but contribute to its attractiveness to children 12 years
of age or younger; and
Play value, i.e., features primarily attractive to
children 12 years of age or younger that promote interactive
exploration and imagination for fanciful purposes (whimsical activities
lacking utility for accomplishing mundane tasks; actions performed for
entertainment and amusement).
The more of these types of characteristics that a product has, the
greater the likelihood that the product is a children's product. For
example, a pen which is decorated or whose advertising and marketing
features themes that correspond to obvious children's interests, e.g.,
preschool characters, will greatly influence the purchase for preschool
children.
However, there also are ``novelty'' pens that could appeal to
children 12 years of age or younger as well as older children and
adults; such novelty pens would not be considered to be primarily
intended for children. For example, a simple ball point stick pen
bearing an elementary school's name, without any other decorations,
would likely appeal to anyone (i.e. students, teachers, parents)
connected with the school. A pen with a silly head on the top, not
associated with any particular mass media (and not sold in toy stores),
may have just as much appeal to adults as it would to children. Pens
with puzzle features that allow the user to take them apart and
reconfigure the design also are likely to appeal to children and adults
alike, and thus, are not likely to be considered children's products
because they are not primarily intended for children.
(ii). Principal Perceived Uses
When making a determination about the intended age of a product's
users, an evaluation of the product's reasonably foreseeable uses and
misuses should take into account the possible actions that a product
makes available. In essence, this is an analysis of what uses a
consumer perceives a subject product affords, even if what the product
does is unintended. For example, the principal use of a screwdriver is
turning screws, but it may also be used to stir paint. The principal
use for a broom is floor cleaning, but a broom may also be used as an
imaginary knight's lance, a horse, a magical flying vehicle, or another
role-playing prop. However, in the age determination analysis, the
principal uses take precedence over other actions that are less likely
to be performed with a product, so even though a product could present
some uses that appeal to children, like the broom being used as an
imagined magical flying vehicle, that fact does not necessarily mean
that the broom is a children's product. The individual features of a
product may be weighted in the analysis with more obvious uses given a
greater weight than less obvious uses.
(iii). Cost Considerations
A product's cost may also be considered in evaluating whether a
consumer product is primarily intended for use by a child or an adult.
The cost of a given product may influence the determination of the age
of intended users. Very expensive items are less likely to be given to
children 12 years of age or younger, depending on the product. We have
not identified a price point where any given product achieves automatic
adult status but, in general terms, within a given product category
(like models or remote controlled vehicles), products intended for
adults cost more than products intended for children because children
are often less careful with their belongings than adults and therefore
are more likely to be entrusted with less expensive models.
(iv). Children's Interaction With the Product
In making an age determination, the foreseeable use or misuse of
the product by a child must be evaluated. Most products intended for
children will involve the child having physical interaction with the
product. There are a few products that are intended for use in a
child's environment, but such products are not for use by a child.
These products are unlikely to be handled by children and children do
not physically interact with such products. Such products may include a
nursery-themed lamp or clock, or nursery decorations that are
manufactured for placement in an infant's room but are not operated or
handled by children, because such infants lack the motor skills or
physical capacity to interact with such items. These types of products
are considered to be home furnishings or decorations primarily intended
for use by adults, rather than products intended for use by children.
Home furnishings or fixtures that are embellished with features or
characteristics that incorporate elements of play value (a toy train on
a lamp) for an older child, would be evaluated to ascertain the
appropriate age group for which the product was intended given the
product's design, marketing and advertising, the child's physical
interaction, if any, with the product, and consideration of any other
factors which may be relevant to the age grading determination.
Other products that are intended for use by adults with children,
such as diaper bags, diaper pails, wipe warmers, bottle warmers, and
baby monitors would not be considered children's products because such
products are primarily designed and intended for use by the adult or
caregiver.
4. The Age Determination Guidelines (2002)
The final statutory factor, at section 3(a)(2)(D) of the CPSA, is
the Age Determination Guidelines (``Guidelines'') issued by the CPSC
staff in 2002. 15 U.S.C. 2052(a)(2)(D). The Guidelines help answer
questions regarding children's interactions with consumer products. The
Guidelines can be downloaded in a searchable file format on the CPSC
Web site at this link: http://www.cpsc.gov/businfo/corrective.html.
The Guidelines address questions such as, ``Does the subject
product appeal to children?'' and ``Can a child properly use the
subject product?'' The Guidelines describe the capabilities and skills
that children of various age groups can be reasonably expected to use
in interactions with consumer products. We consider those actions that
children of certain ages can successfully perform when making
determinations about the appropriate user groups for products even if
the specific product or type of product is not specifically mentioned
by the Guidelines.
[[Page 20537]]
i. Appeal of the Product for Different Age Groups
When making an age determination for a given product's intended
user group, the Guidelines provide information about the primary goals
of play that are seen for different ages throughout childhood. For
example, toddlers consistently want to mouth objects because mouthing
is a primary strategy for exploration of any object at that age. Early
childhood entails lots of exploration and discovery. High levels of
detail in their toys are not necessary, and toddlers like bright
colors. However, during middle childhood, children become very
interested in role-playing, and they desire increasingly more realistic
props during their playtime, and more realistic colors become
important. After a certain age, children do not consider the
simplistic, brightly colored toys intended for toddlers to be intended
for them and may find them very unappealing or even insulting. Nine to
12 year old children are interested in developing new motor skills and
exercising their increasingly complex problem solving abilities. They
consistently want to learn and practice new skills to approximate adult
performances in activities like playing sports, working with hand tools
and simple machines, and solving complex puzzles. During this age
range, children progress from concrete to abstract thinking. Their
consumer behaviors are more heavily influenced than younger children by
peers and popular mass media celebrities and events. The factors that
make various objects appealing to children of different ages are
discussed at length in the Guidelines.
ii. Capabilities of Various Age Groups
Whether or not a product appeals to a child is just one
consideration because the child also needs to be able to manipulate and
operate a product in the manner that takes advantage of most, if not
all, of that product's features to be appropriate for a child that age.
The physical, social and cognitive milestones that contribute to a
child's ability to play with various types of products are described in
detail in the Guidelines to help match a product with the user group of
the proper age. For example, a magnifying glass is very attractive to a
toddler because it is novel, visually intriguing, and has an easily
grasped handle with easily mouthed edges, but toddlers are usually
unable to position a magnifying glass in the proper manner to magnify
objects to their eyes. A toddler's hand-eye coordination and his or her
visual attention are usually not developed enough for a toddler to find
the focal point needed to see something magnified in the glass. Despite
this, a toddler might want to hold and mouth a magnifying glass. This
appeal does not make the magnifying glass appropriate for toddlers.
Magnifying glasses are suitable for older children and individuals
older than 12 years of age who have the necessary hand-eye coordination
to use the product for magnification without the risk of breaking it.
Because a magnifying glass is generally marketed to the adult
population, it would not be considered a children's product.
III. Examples (Proposed Sec. 1500.92(d)(1) through (d)(9))
To help manufacturers and other interested parties understand the
concepts discussed above (in part II of this document) for evaluating
what is a children's product under the CPSA, we provide the following
additional examples.
(A) Furnishings and Fixtures
General home furnishings and fixtures, such as rocking chairs,
shelving units, televisions, digital music players, ceiling fans,
humidifiers, air purifiers, window curtains, tissue boxes, clothing
hooks and racks, often are found in children's rooms or schools. The
Commission will generally consider such furnishings and fixtures to be
intended for adult use even if they happen to be used in a children's
room or classroom, as they would be considered general use products. A
humidifier may be used in a children's room, but this does not make it
for children to use; instead, adult caregivers use the humidifier to
modify the air in a child's room. Similarly, a hook used to hang coats
is a general use item, even if a child's coat is occasionally hung on
the hook at home or at school. However, if a manufacturer attaches the
hook to a children's product, such as a child-sized desk, or
embellishes the hook with a child's theme (thereby making it clear that
the hook is intended to be used primarily by a child), then that hook
would be considered a children's product.
Some home or school furnishings, such as infant tubs, bath seats,
small beanbag chairs with childish decorations, bunk beds with
children's themes, child-sized desks, and child-sized chairs, are
primarily intended for use by children 12 years of age or younger and
would need to comply with all applicable children's product safety
rules.
Other products may have a childish theme incorporated into the
product. For example, a lamp featuring a fire station that has posable
figurines of firefighters has play value and would likely be considered
a children's product. If a lamp has no features that add play value, or
any other features that would invite physical interaction with the lamp
beyond turning the lamp on or off, it would likely be considered a
general use product, since it would be indistinguishable from a lamp
for consumers older than 12 years of age. Decorative items, such as
holiday decorations and household seasonal 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 by adults.
(B) Collectibles
Certain products that were originally intended for children may
become collector's items and find an adult market. However, many
collectibles are interesting to children, and children 12 years of age
or younger often have collections. Adult collectibles are intended
solely for use by adults as display items and are often labeled in such
a manner that conveys this intention. They may be (but are not always)
distinguishable from collectibles intended for children by themes that
are inappropriate for children 12 years of age or younger. Adult
collectibles also have features that preclude use by children during
play, such as high costs, limited production, and display features like
hooks or pedestals, and are not marketed alongside children's products.
For example, collectible plush bears have highly detailed and fragile
accessories, display cases, platforms to pose and hold the bear, and
very high costs. Plush bears intended for children are more affordable
and have more simple accessories that children can handle without
damaging the product or the accessory.
(C) Jewelry
Jewelry intended for children is sized, themed, and marketed to
children. Many features of adult jewelry may be attractive to children
12 years old or younger, but potential attractiveness to children,
alone, does not make a piece of jewelry into a product intended for
children. One or more of the following characteristics of jewelry could
cause an item to be considered primarily a children's product:
Size;
[[Page 20538]]
Cost--it would be unusual for an adult to wear jewelry
that is available at very low cost;
Marketing in conjunction with other children's products,
such as a child's dress, children's book, or toy;
Play value;
Sale at an entertainment or educational event (such as a
circus) attended primarily by children;
Use of childish themes, such as animals, vehicles, or
toys;
Sale at a store containing mostly children's products; and
Sale in a vending machine.
In addition, many aspects of an item's design and marketing are
considered when determining the age of consumers for whom the product
is intended and will be purchased. These aspects include:
Marketing, advertising, and promotional materials;
Packaging graphics and text;
Size;
Dexterity requirements for wearing;
Appearance (coloring, textures, materials, design themes,
licensing, level of realism); and
Cost.
These aspects or characteristics will help inform jewelry
manufacturers and consumers whether a particular piece of jewelry is
designed or intended primarily for children 12 years of age or younger,
or whether it more frequently appeals to consumers older than 12 years
of age.
(D) DVDs, Video Games, and Computers
Most computer products and electronic media devices, such as CDs,
DVDs, and DVD players, are considered general use products. However,
some CDs and DVDs may have encoded content that is intended for and
marketed to children, such as children's movies, games or educational
software. CPSC staff may consider ratings given by entertainment
industries and software rating systems when making an age
determination. However, we note that among the CDs and DVDs that have
content embedded that is intended for children, certain CDs and DVDs
that contain content for very young children would not be handled or
otherwise touched by children because they do not have the motor skills
to operate media players and because such products, by themselves, do
not have any appeal to children. These types of DVDs or CDs would not
be considered children's products because they are not used ``by''
children and children do not physically interact with such products.
However, DVDs and CDs and other digital media that may be handled by
older children could be considered children's products if such movies,
video games, or music were specifically aimed at and marketed to
children 12 years of age or younger and have no appeal to older
audiences.
Video game consoles also are considered general use products
because a significant portion of the market for such items consists of
teenagers and young adults. However, handheld video games with software
intended for children 12 years of age or younger would fall within the
scope of a children's product if the products are produced without
software available that is appealing to older children and adults. Such
products would be more likely to be perceived as intended for children
12 years of age or younger. Also, the controllers for certain console
games or other accessories of electronic equipment that are sized for
or otherwise intended for only children's games could be a children's
product because of their size (or other childish features), even though
the game console could be a general use product. Likewise, keyboards,
computer input devices, and other peripherals that are sized,
decorated, or otherwise marketed for children 12 years of age or
younger would be considered children's products, even though the
computer itself is a general use item.
(E) Art Materials
Materials sized, decorated, and marketed to children 12 years of
age or younger, such as crayons, finger paints and modeling dough,
would be considered children's products. Crafting kits and supplies
that are not specifically marketed to children 12 years of age or
younger would likely be considered products intended for general use.
The marketing and labeling of raw materials (such as modeling clay and
paint) may often be given high priority in an age determination for
these art materials because the appeal and utility of these raw
materials has such a wide audience.
(F) Books
The content of a book can determine its intended audience.
Children's books have themes, vocabularies, illustrations, and covers
that match the interests and cognitive capabilities of children 12
years of age or younger. Librarians, education professionals, and
publishers commonly make determinations regarding the expected
audiences for books based on vocabulary, grammar, themes, and content.
Some children's books have a wide appeal to the general public, and, in
those instances, further analysis may be required to assess who the
primary intended audience is based on consideration of relevant
additional factors such as product design, packaging, marketing and
sales data.
(G) Science Equipment
Microscopes, telescopes, and other scientific equipment that would
be used by an adult, as well as a child, are considered general use
products. Equipment with a marketing strategy that targets schools,
such as scientific instrument rentals, would not convert such products
into children's products if such products are intended for general use,
regardless of how the equipment is leased, rented, or sold. This
equipment is intended by the manufacturer for use primarily by adults,
although there may be incidental use by children through such programs.
In general, scientific equipment that is specifically sized for
children and/or has childish themes or decorations intended to attract
children is considered a children's product. Toy versions of such items
are also considered children's products.
(H) Sporting Goods and Recreational Equipment
Sporting goods that are primarily intended for consumers older than
12 years of age are considered general use items. Regulation-sized
sporting equipment, such as basketballs, baseballs, bats, racquets, and
hockey pucks, are general use items even though some children 12 years
of age or younger will use them. Sporting goods become children's
products when they are sized to fit children or are otherwise decorated
with childish features that are intended to attract child consumers.
Likewise, recreational equipment, such as roller blades,
skateboards, bicycles, camping gear, and fitness equipment, are
considered general use products unless they are sized to fit children
12 years of age or younger and/or are decorated with childish features.
For example, scooters have been made for children and for adults.
Children's scooters are distinguished by shorter handlebar heights and
have lower maximum weight limits than adult scooters. Children's
scooters also may have childish decorations with themes that appeal to
children.
Wading pools are primarily intended for children and can be
distinguished from general use pools by their depth. Children's pools
are shallow and have extra play features that promote playful
interactions beyond the primary use of holding water for a bather.
Aquatic products primarily intended for children can be
distinguished from general use recreational equipment for deep water,
such as towables and rafting equipment, by design, cost and intended
use. Children's aquatic products are
[[Page 20539]]
relatively low cost, small items intended for individual use and
generally are decorated with childish themes and colors. Recreational
equipment, such as towables and rafting equipment, have durable
materials and high-capacity, weight-bearing capabilities.
(I) Musical Instruments
Musical instruments suited for an adult musician as well as a child
are general use products. Instruments primarily intended for children
can be distinguished from adult instruments by their size and marketing
themes. Products with a marketing strategy that targets schools, such
as instrument rentals, would not convert such products into children's
products if such products are intended for general use, regardless of
how the instruments are leased, rented, or sold. These instruments are
intended by the manufacturer for use primarily by adults, although
there also may be incidental use by children through such programs.
However, products that produce music or sounds in a manner that
simplifies the process so that children can pretend to play an
instrument are considered toys primarily intended for children 12 years
of age or younger. In general, instruments that are specifically sized
for children and/or have childish themes or decorations intended to
attract children are considered children's products.
IV. Request for Comments and Effective Date
We are providing a sixty (60) day opportunity for public comment,
although we recognize that, as an interpretative rule, the proposal is
exempt from the notice and comment provisions of the Administrative
Procedure Act (15 U.S.C. 553). We believe it is important to invite
comment from interested parties before issuing a final interpretative
rule. The Commission also seeks comments on how manufacturers generally
determine the age of the consumers for whom their products are
primarily intended. In addition, comments are sought on what other
criteria, if any, should be considered in determining whether a
consumer product is a children's product. Because this is an
interpretative rule, a delayed effective date is not required by the
Administrative Procedure Act (5 U.S.C. 553(d)). Therefore, any final
rule based on this proposal would become effective upon publication of
a final interpretative rule in the Federal Register.
List of Subjects in 16 CFR Part 1500
Consumer protection, Hazardous materials, Hazardous substances,
Imports, Infants and children, Labeling, Law enforcement, and Toys.
V. Conclusion
For the reasons stated above, the Commission proposes to amend
Chapter II of Title 16 of the Code of Federal Regulations as follows:
PART 1500--HAZARDOUS SUBSTANCES AND ARTICLES: ADMINISTRATION AND
ENFORCEMENT REGULATIONS
1. The authority citation for part 1500 continues to read as
follows:
Authority: 15 U.S.C. 1261-1278, 122 Stat. 3016.
2. Add a new Sec. 1500.92 to read as follows:
Sec. 1500.92 Definition of children's product.
(a) Definition of ``children's product''--Under section 3(a)(2) of
the Consumer Product Safety Act (CPSA), a children's product means a
consumer product designed or intended primarily for children 12 years
of age or younger. The term ``designed or intended primarily'' applies
to those consumer products mainly for children 12 years old or younger.
Whether a product is a children's product is determined by considering
the four specified statutory factors. The examples discussed herein may
also be illustrative in making such determinations. 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.
(b) Definition of ``general use product''--
(1) A general use product means a consumer product that is not
designed or intended primarily for use by children 12 years old or
younger. General use products are those consumer products mainly for
consumers older than age 12. Some products may be designed or intended
for consumers of all ages, including children 12 years old or younger,
but are intended mainly for consumers older than 12 years of age.
Examples of general use products may include products that a child
would not be likely to interact with, or products that consumers older
than 12 would be as likely, or more likely to interact with. Products
used by children 12 years of age or younger that have a declining
appeal for teenagers are likely to be considered children's products.
(2) Other products are specifically not intended for use by
children 12 years of age or younger. These products, such as cigarette
lighters, candles, and fireworks, which the Commission has
traditionally warned adults to keep away from children, are not subject
to the CPSIA's lead limits, tracking label requirement, and third-party
testing and certification provisions. Similarly, products that
incorporate performance requirements for child resistance are not
children's products as they are designed specifically to ensure that
children cannot access the contents. This would include products such
as portable gasoline containers and special packaging under the Poison
Prevention Packaging Act.
(c) Factors considered--To determine whether a consumer product is
primarily intended for a child 12 years of age or younger, the
following factors must be considered:
(1) A statement by a manufacturer about the intended use of such
product, including a label on such product if such statement is
reasonable. A manufacturer's statement about the product's intended
use, including the product's label, should be reasonably consistent
with the expected use patterns for a product. A manufacturer's
statement that the product is not intended for children does not
preclude a product from being regulated as a children's product if the
primary appeal of the product is to children 12 years of age or
younger. Similarly, a label indicating that a product is for ages 10
and up does not necessarily make it a children's product if it is a
general use product. The manufacturer's label, in and of itself, is not
considered to be determinative.
(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.
(i) These representations may be express or implied. For example,
advertising expressly declaring that the product is intended for
children 12 years of age or younger will support a determination that a
product is a children's product. Advertising showing children 12 years
of age or younger using the product may support a determination that
the product is a children's product. These representations may be found
in packaging, text, illustrations and/or photographs depicting
consumers using the product, instructions, assembly manuals, or
advertising media used to market the product.
(ii) The product's physical location near or visual association
with
[[Page 20540]]
children's products may be a factor in making an age determination, but
is not determinative. For example, a product displayed in a children's
toy section of a store may support a determination that the product is
a children's product. However, where that same product is also sold in
department stores and marketed for general use, further evaluation
would be necessary. The Commission generally evaluates products based
on the entire domestic market as opposed to a shelf-by-shelf or store-
by-store analysis.
(iii) The product's association or marketing in conjunction with
nonchildren's products may not be determinative as to whether the
product is a children's product. For example, packaging and selling a
stuffed animal with a candle would not preclude a determination that
the stuffed animal is a children's product since stuffed animals are
commonly recognized as being primarily intended for children.
(3) Whether the product is commonly recognized by consumers as
being intended for use by children 12 years of age or younger. Consumer
perception of the product's use by children, including its reasonably
foreseeable use and misuse, will be evaluated. Sales data, market
analyses, focus group testing, and other marketing studies may help
support an analysis regarding this factor.
(i) Features and Characteristics--additional considerations that
may help distinguish children's products from nonchildren's products
include:
(A) Small sizes that would not be comfortable for the average
adult;
(B) Exaggerated features (large buttons, bright indicators) that
simplify the product's use;
(C) Safety features that are not found on similar products intended
for adults;
(D) Colors commonly associated with childhood (pinks, blues, bright
primary colors);
(E) Decorative motifs commonly associated with childhood (such as
animals, insects, small vehicles, alphabets, dolls, clowns, and
puppets);
(F) Features that do not enhance the product's utility, (such as
cartoons), but contribute to its attractiveness to children 12 years of
age or younger; and
(G) Play value, i.e., features primarily attractive to children 12
year of age or younger that promote interactive exploration and
imagination for fanciful purposes (whimsical activities lacking utility
for accomplishing mundane tasks; actions performed for entertainment
and amusement).
(ii) Principal use of the product--just because an item could be
used as a children's product, such as when a child pretends that a
broom is a horse, does not mean the item should be regulated as a
children's product where the principal use is for sweeping;
(iii) Cost--the cost of a given product may influence the
determination of the age of intended users; and
(iv) Children's interactions, if any, with the product--products
for use in a child's environment by the caregiver but not for use by
the child would not be considered primarily intended for a child 12
years of age or younger.
(4) The Age Determination Guidelines issued by the Consumer Product
Safety Commission staff in September 2002, and any successor to such
guidelines. The product's appeal to different age groups and the
capabilities of those age groups may be considered when making
determinations about the appropriate user groups for products.
(d) Examples--To help manufacturers understand what constitutes a
children's product under the CPSA, the following additional examples
are offered.
(1) Furnishings and fixtures--general home furnishings and fixtures
(including, but not limited to: rocking chairs, shelving units,
televisions, digital music players, ceiling fans, humidifiers, air
purifiers, window curtains, tissue boxes, clothing hooks and racks)
that often are found in children's rooms or schools would not be
considered children's products unless they are decorated or embellished
with a childish theme, have play value, and/or are sized for a child.
Examples of home or school furnishings that are primarily intended for
use by children and considered children's products include infant tubs,
bath seats, small bean bag chairs with childish decorations, bunk beds
with children's themes, child-sized desks, and child-sized chairs.
Decorative items, such as holiday decorations and household seasonal
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 by adults.
(2) Collectibles--Adult collectibles may be distinguishable from
children's collectibles by themes that are inappropriate for children
12 years of age or younger, have features that preclude use by children
during play, such as high cost, limited production, display features
(such as hooks or pedestals), and are not marketed alongside children's
products. For example, collectible plush bears have high cost, are
highly detailed, with fragile accessories, display cases, platforms on
which to pose and hold the bears. Children's bears have lower costs and
simple accessories that can be handled without fear of damage to the
product.
(3) Jewelry--
(i) Jewelry intended for children is generally sized, themed, and
marketed to children. One or more of the following characteristics of
jewelry may cause a piece of jewelry to be considered primarily a
children's product: size; very low cost; play value; childish themes on
the jewelry; sale with children's products (such as a child's dress);
sale with a child's book, a toy, or party favors; sale with children's
cereal or snacks; sale at an entertainment or educational event
attended primarily by children; sale in a store that contains mostly
children's products; and sale in a vending machine.
(ii) In addition, many aspects of an item's design and marketing
are considered when determining the age of consumers for whom the
product is intended and will be purchased: marketing; advertising;
promotional materials; packaging graphics and text; size; dexterity
requirements for wearing; appearance (coloring, textures, materials,
design themes, licensing, level of realism); and cost. These
characteristics will help jewelry manufacturers and consumers determine
whether a particular piece of jewelry is designed or intended primarily
for children 12 years of age or younger, or whether it more frequently
appeals to consumers older than 12 years of age.
(4) DVDs, video games, and computers--Most computer products and
electronic media devices, such as CDs, DVDs, and DVD players, are
considered general use products. However, some CDs and DVDs may have
encoded content that is intended for and marketed to children, such as
children's movies, games or educational software. CPSC staff may
consider ratings given by entertainment industries and software rating
systems when making an age determination. However, we note that among
the CDs and DVDs that have content embedded that is intended for
children, certain CDs and DVDs that contain content for very young
children would not be handled or otherwise touched by children because
they do not have the motor skills to operate media players and because
such products, by themselves, do not have any appeal to children. These
types of DVDs or CDs would not be considered children's products
because they are not used ``by'' children and children do not
physically interact with such products. However, DVDs and CDs and other
digital media
[[Page 20541]]
that may be handled by older children could be considered children's
products if such movies, video games, or music were specifically aimed
at and marketed to children 12 years of age or younger and have no
appeal to older audiences.
(5) Art materials--Materials sized, decorated, and marketed to
children 12 years of age or younger, such as crayons, finger paints and
modeling dough, would be considered children's products. Crafting kits
and supplies that are not specifically marketed to children 12 years of
age or younger likely would be considered products intended for general
use. The marketing and labeling of raw materials (such as modeling
clay, paint and paint brushes) may often be given high priority in an
age determination for these art materials because the appeal and
utility of these raw materials has such a wide audience.
(6) Books--The content of a book can determine its intended
audience. Children's books have themes, vocabularies, illustrations,
and covers that match the interests and cognitive capabilities of
children 12 years of age or younger. The age guidelines provided by
librarians, education professionals, and publishers may be dispositive
for determining the intended audience. Some children's books have a
wide appeal to the general public, and in those instances, further
analysis may be necessary to assess who the primary intended audience
is based on consideration of relevant additional factors such as
product design, packaging, marketing and sales data.
(7) Science equipment--Microscopes, telescopes, and other
scientific equipment that would be used by an adult, as well as a
child, are considered general use products. Equipment with a marketing
strategy that targets schools, such as scientific instrument rentals,
would not convert such products into children's products if such
products are intended for general use, regardless of how the equipment
is leased, rented, or sold. This equipment is intended by the
manufacturer for use primarily by adults, although there may be
incidental use by children through such programs. In general,
scientific equipment that is specifically sized for children and/or has
childish themes or decorations intended to attract children is
considered a children's product. Toy versions of such items are also
considered children's products.
(8) Sporting goods and recreational equipment--Sporting goods that
are primarily intended for consumers older than 12 years of age are
considered general use items. Regulation-sized sporting equipment, such
as basketballs, baseballs, bats, racquets, and hockey pucks, are
general use items even though some children 12 years of age or younger
will use them. Sporting goods become children's products when they are
sized to fit children or are otherwise decorated with childish features
that are intended to attract child consumers. Likewise, recreational
equipment, such as roller blades, skateboards, bicycles, camping gear,
and fitness equipment, are considered general use products unless they
are sized to fit children 12 years of age or younger and/or are
decorated with childish features by the manufacturer.
(9) Musical instruments--Musical instruments suited for an adult
musician as well as a child are general use products. Instruments
primarily intended for children can be distinguished from adult
instruments by their size and marketing themes. Products with a
marketing strategy that targets schools, such as instrument rentals,
would not convert such products into children's products if such
products are intended for general use, regardless of how the
instruments are leased, rented, or sold. These instruments are intended
by the manufacturer for use primarily by adults, although there also
may be incidental use by children through such programs. However,
products that produce music or sounds in a manner that simplifies the
process so that children can pretend to play an instrument are
considered toys primarily intended for children 12 years of age or
younger. In general, instruments that are specifically sized for
children and/or have childish themes or decorations intended to attract
children are considered children's products.
Dated: April 7, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-8431 Filed 4-19-10; 8:45 am]
BILLING CODE 6355-01-P