CPSC Issues Final Rule on CPSIA Definition of Children's Product

(The definition of “children’s product” is important as most of the requirements introduced by the CPSIA apply to "children’s products" (e.g., the phthalates bans, lead content limits, third-party testing, tracking labels, etc.).

CPSIA Already Defines Children’s Products and Provides 4 Factors to Consider

The CPSIA already defines a children’s product as a “consumer product designed or intended primarily for children 12 years of age or younger.” It also outlines four factors that must be considered in determining whether a consumer product is primarily intended for children: (1) a manufacturer statement about intended use; (2) the representation of the product as appropriate for children (packaging, display, advertising, etc.); (3) consumer recognition as a children’s product; and (4) CPSC’s 2002 (or any successor) Age Determination Guidelines.

Highlights of Final Rule

The following are highlights of the final rule:

No “Bright Lines,” Determinations Must be Made on Case-by-Case Basis

In her comments on the final rule, CPSC Commissioner Tenenbaum states that given the statutory guidelines CPSC is required to consider, and the millions of different products on the market, it is very difficult for the agency to establish “bright line” rules or create a one-size-fits-all approach to the definition of a children’s product. Therefore, the final rule is simply intended to give interested parties a better understanding of CPSC’s approach in evaluating what is a children’s product.

The final rule adds that a determination of whether a product meets the definition of a children’s product depends on factual information that may be unique to the product and therefore, must be made on a case-by-case basis.

Childish Themes, Sizing, Etc. Are Common Elements of Children’s Products

However, CPSC notes that while all four factors are considered, certain elements of the factors are common to many children’s products and cut across numerous product categories. These elements are decorations or embellishments with childish themes that invite use by a child 12 years of age or younger, sizing a product for a child, or marketing a product in a way designed to make it appeal primarily to children.

Rule Creates 16 CFR Part 1200 on Definition of Children’s Product

The final rule creates a new 16 CFR Part 1200 interpreting the CPSIA definition of children’s product and elaborating on the accompanying statutory factors.

Definition of Children’s Product

New 16 CFR 1200.2(a) defines a children’s product “as a consumer product designed or intended primarily for children 12 years of age or younger.”

In addition, 16 CFR 1200.2 (a) provides the following explanations:

“Designed or intended primarily.” 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. (See details below.)

“For use.” The concept of “for use” by children 12 years or younger generally means that children will physically interact with such products based on the reasonably foreseeable use of such product.

Age grading in other regulations can be a guide. Toys and articles that are subject to the small parts regulations at 16 CFR Part 1501 and the ASTM F963 toy standard, would fall within the definition of children’s product since they are intended for children 12 years of age or younger. Toys and other articles intended for children up to 96 months (8 years old) that are subject to the requirements at 16 CFR 1500.48 through 1500.49 and 16 CFR 1500.50 through 1500.53 would similarly fall within the definition of children’s products given their age grading for these other regulations.

Therefore, a manufacturer could reasonably conclude on the basis of the age grading for these other regulations that its product must also comply with all requirements applicable to children’s products including, but not limited to, those under the Federal Hazardous Substances Act (FHSA), ASTM F963, “Standard Consumer Safety Specification for Toy Safety,” and the CPSIA.

Definition of General Use Product

New 16 CFR 1200.2(b) defines a general use product as 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 designed or intended primarily 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 with which a child would not be likely to interact or products with which 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.

Products specifically not for children. 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 CPSC 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.

Four Factors to Be Considered in Children’s Product Determinations

New 16 CFR 1200.2(c) requires that the following four factors be considered as a whole when determining whether a consumer product is intended primarily for a child 12 years of age or younger:

1. Manufacturer statement - is 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, as indicated, for example, by decorations or embellishments that invite use by the child, being sized for a child or being marketed to appeal primarily to children.

Similarly, a label indicating that a product is for ages 9 and up does not necessarily make it a children’s product if it is a general use product. Such a label may recommend 9 years old as the earliest age for a prospective user, but may or may not indicate the age for which the product is primarily intended. The manufacturer’s label, in and of itself, is not considered to be determinative.

2. Product representation - whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.

These representations may be express or implied. For example, advertising by the manufacturer 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. While, advertising by the manufacturer 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.

The product’s physical location near, or visual association with, 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. CPSC recognizes that manufacturers do not necessarily control where a product will be placed in a retail establishment and such lack of control will be considered. CPSC states that it evaluates products more broadly than on a shelf-by-shelf or store-by-store basis.

3. Consumer recognition - 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 will be evaluated. Sales data, market analyses, focus group testing, and other marketing studies may help support an analysis regarding this factor.

(See final rule for other things that may help distinguish children’s products, including: (i) common characteristics such as small sizes, childhood motifs, play value, etc.; (ii) principal uses of the product; (iii) cost; and (iv) children’s interactions with the product.)

4. Age Determination Guidelines - CPSC’s 2002 Age Determination Guidelines, 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.

Examples of What Constitutes a Children’s Product vs. a General Use Product

The final rule’s regulatory text provides the following examples of what does and does not constitute a children’s product under the Consumer Product Safety Act as amended by the CPSIA (note that some examples have been shortened):

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, rugs, carpets, lamps, 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 and invite use by a child 12 years of age or younger, are sized for a child, or are marketed to appeal primarily to children.

Examples of home or school furnishings that are intended primarily for use by children and considered children’s products include infant tubs, bath seats, small bean bag chairs with childish decorations, 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.

Collectibles: adult collectibles may be distinguished 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, fragile features, and display features (such as hooks or pedestals); and are not marketed alongside children’s products (for example, in a children’s department) in ways that make them indistinguishable from children’s products. For example, model railways and trains made for hobbyists would be considered non-children’s products. In addition, collectible plush bears that have high cost, are highly detailed, with fragile accessories, display cases, and platforms on which to pose and hold the bears would be considered non-children’s products. In contrast, children’s bears have lower costs and simple accessories that can be handled without fear of damage to the product.

Jewelry: jewelry intended for children is generally sized, themed, and marketed to children. The following characteristics of jewelry may cause a piece of jewelry to be considered 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.

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 including: marketing; advertising; promotional materials; packaging graphics and text; size; dexterity requirements for wearing; appearance (coloring, textures, materials, design themes, licensing, and 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.

CDs, DVDs, video games, etc: most computer products and electronic media, such as CDs, DVDs, and video games, are considered general use products. However, CDs and DVDs with encoded content that is intended for and marketed to children, such as children’s movies, games, or educational software may be determined to be children’s products. CPSC staff may consider ratings given by entertainment industries and software rating systems when making an age determination. In addition, electronic media players and devices that are embellished or decorated with childish themes that are intended to attract children 12 years of age or younger, are sized for children, or are marketed to appeal primarily to children, are not likely to fall under the general use category where children 12 years or younger likely would be the primary users of such devices. However, electronic devices such as CD players, DVD players, game consoles, book readers, digital media players, cell phones, digital assistant communication devices, and accessories to such devices that are intended mainly for children older than 12 years of age or adults are products for general use.

Art materials: art 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. Consideration of the marketing and labeling of raw materials and art tools (such as modeling clay, paint, and paint brushes) may often be given high priority in an age determination because the appeal and utility of these raw materials has such a wide audience.

The final rule states that if a distributor or retailer sells or rents a general use product in bulk (such as a raw art materials or art tools) through distribution channels that target children 12 years of age or younger in educational settings, such as schools, summer camps, or child care facilities, this type of a distribution strategy would not necessarily convert a general use product into a children’s product. However, if the product is packaged in such a manner that either expressly states or implies with graphics, themes, labeling, or instructions that the product is designed or intended primarily for children 12 years of age or younger, then it may be considered a children’s product if the required consideration of all four statutory factors supports that determination.

(See final rule and CPSC comment section below on the Labeling of Hazardous Art Materials Act (LHAMA) requirements.)

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.

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 that is intended by the manufacturer for use primarily by adults, although there may be use by children through such programs, is a general use product. Toy versions of such items are considered children’s products. If a distributor or retailer sells or rents a general use product in bulk through distribution channels that target children 12 years of age or younger in educational settings, such as schools or summer camps, this type of a distribution strategy would not necessarily convert a general use product into a children’s product. However, if the product is packaged in such a manner that either expressly states or implies with graphics, themes, labeling, or instructions that the product is designed or intended primarily for children 12 years of age or younger, then it may be considered a children’s product if the required consideration of all four statutory factors supports that determination. (See final rule for further details.)

Sporting goods and recreational equipment: sporting goods that are intended primarily for consumers older than 12 years of age are considered general use items. Sporting equipment, sized for adults, are general use items even though some children 12 years of age or younger will use them. Unless such items are specifically marketed to children 12 years of age or younger, or have extra features that make them more suitable for children 12 years of age or younger than for adults, they would be considered general use products. If children 12 years or younger would mainly use the product because it would be too small or inappropriate for older children to use, then it likely would be considered a children’s product. 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.

Musical instruments: musical instruments, including electronically-aided instruments, suited for an adult musician are general use products. Instruments intended primarily for children can be distinguished from adult instruments by their size and marketing themes. The Commission notes that if a distributor or retailer sells or rents in bulk, a general use musical instrument through distribution channels that target children 12 years of age or younger in educational settings, such as schools or summer camps, this type of a distribution strategy would not necessarily convert a general use product into a children’s product. However, if the product is packaged in such a manner that either expressly states or implies with graphics, themes, labeling, or instructions that the product is designed or intended primarily for children 12 years of age or younger, then it may be considered a children’s product if the required consideration of all four statutory factors supports that determination.

Highlights of CPSC Responses to Comments Received

The following are highlights of CPSC’s responses to comments on its proposed rule:

Manufacturer Intent Not Entitled to Greater Weight than Other 3 Factors

CPSC states that a determination of what is a children’s product should not only be based on the manufacturer’s intent. This is because the manufacturer’s intent, including labeling, is only one of four factors that CPSC must consider. While CPSC agrees that the manufacturer’s intent plays an important role in making initial children’s product determinations, it is not necessarily determinative, always determinative, or entitled to greater weight than any other factor.

“For Use” Means Physical Use by Children, Not “Use with Children by a Parent”

CPSC disagrees with comments that the interpretation of “for use” would capture general use products that are not primarily intended for use by children. CPSC interprets “for use” generally to mean physical use of a product in order to distinguish products, such as diaper bags that are intended to be used with children by the parent or caregiver from products that are intended for use by children. Products that are for use by children are those with which they will interact or have physical contact, such as with the diaper itself.

Only Need to Consider Foreseeable Uses, Not Foreseeable Misuses

When evaluating products, CPSC explains that it not only considers the manufacturer’s statement of intended use, but the product’s reasonably foreseeable use (i.e., what a child using the product may reasonably be expected to do with the product). The question of whether there will be reasonably foreseeable use of a product by a child is a determination that is made initially by the manufacturer. CPSC agrees that its proposed requirement that manufacturers also consider foreseeable “misuses” may be difficult for a manufacturer to determine. As an analysis of the foreseeable uses should be adequate to make the initial determination as to whether a product is a children’s product, CPSC has revised the final rule to eliminate language on foreseeable misuse.

Intrinsic Play Value Does Not Automatically Make a Product for Children

CPSC disagrees with a comment that any product that has intrinsic play value for young children would automatically be considered a children’s product. This is because young children often find intrinsic play value in a number of general use products, such as pots and pans or keys, but they do not become children’s products simply because children may play with them. CPSC notes that it has other statutory authorities to address non-children’s products that may pose a risk to children.

Products for 9-12 Year Olds and Teenagers/Adults May Not be Children Products

CPSC states that a label indicating that a product is for ages 9 and up does not necessarily make it a children’s product if it is a general use product. Such a label may recommend 9 years old as the earliest age for a prospective user, but may or may not indicate the age for which the product is primarily intended. However, CPSC acknowledged that questions regarding products designed or intended both for children 9 to 12 years old and for teenagers and older will be among the most difficult and require solid evaluation.

Direct Physical Interaction Not Needed for Product to be for Children

CPSC has decided that attempting to make a distinction as to whether a product is intended for children 12 years of age or younger, based on some age under thirteen at which the interaction may change to direct physical interaction with a product creates artificial age distinctions that are not supported by the statutory language. Therefore, in a change from the proposed rule, CPSC has removed language on direct physical interaction from the section on children’s interactions.

Physical Location in a Store Is Not Determinative

While the packaging, marketing, and store placement of a product will be considered, CPSC states that these factors do not necessarily outweigh the other factors that may need to be considered in making an age determination. Instead, it will be one of many relevant factors considered.

Age Determination Guidelines Should be Considered

CPSC states that Congress has mandated that the 2002 or successor Age Determination Guidelines be one of the four statutory factors to be considered in determining whether a product is designed or intended primarily for children, and therefore they should be considered. The Guidelines provide information about social, emotional, cognitive and physical developments during childhood. That information will apply to many products that are not specifically mentioned in the Guidelines.

CPSC Will Try to Post Children’s Product Determinations Online

To provide guidance regarding determinations that have been made by CPSC staff, as appropriate, CPSC will post on its website, some products that have been determined to be either children’s products or general use products, subject to its public disclosure of information requirements, CPSC regulations at 16 CFR Part 1101, and the availability of CPSC resources.

Carpets Are General Use Unless Decorated, Sized, Etc. Primarily for Children

The final rule includes carpets and rugs in the examples of general home furnishings and fixtures. Generally, home furnishings and fixtures would not be considered children’s products unless they are decorated or embellished with childish themes and invite use by a child 12 years of age or younger, are sized for a child, or are marketed to appeal primarily to children. In the case of rugs and carpets, the particular color or size of a rug or carpet, considered alone, would not be sufficient to make a determination that a rug or carpet is a children’s product.

Dexterity, Play Value Will be Taken into Consideration for Jewelry

CPSC disagrees with a comment that the final rule places undue emphasis on dexterity or play value when making age determinations as these factors are useful and are only two of many characteristics that are examined in making age determinations for jewelry.

Proposed Age Distinctions for CDs, DVD Have Been Removed

Upon further consideration, CPSC agrees that attempting to make a distinction about whether a CD or a DVD is a children’s product based upon whether the intended audience for a CD or DVD is an infant or a slightly older child only further complicates the age determination. With respect to the CDs and DVDs, consistent with an analysis of other products, the four statutory factors must be considered to assess these products. CPSC adds that CDs and DVDs could be considered children’s products if such movies, video games, or music were specifically created for and marketed to children 12 years of age or younger and have little or no appeal to older audiences. The ratings and targeted age suitability given to the product will be considered when making an age determination.

Most Electronics Intended for Older Children/Adults Would be General Use

CPSC believes that most game consoles, book readers, digital media players, cell phones, digital assistant communication devices, power adapters, data cords, and other accessories to such devices that are intended for older children and adults fall in the general use category. Accordingly, the final rule adds them as examples to the list of general use items, along with CD and DVD players. However, some media players or devices that play electronic content, if embellished or decorated with childish themes, sized for children, or marketed to appeal primarily to children, could be considered children’s products because children 12 years of age or younger likely would be the main users of such items, and older children and adults would be unlikely to use such products.

Most Holiday Decorations Not Children’s Products, But Holiday Toys Would Be

CPSC agrees that most holiday decorations, including seasonal decorations, are not children’s products, even though they may appeal to children. However, certain products such as Halloween costumes, that are considered toys and sold and marketed in toy stores, would continue to be considered children’s products if intended primarily for children 12 years of age or younger.

Footwear Determinations Must Be Based on All Factors, Not Certain Size

CPSC states that the manufacturer is in the best position to make an initial determination regarding whether footwear is primarily intended for children 12 years of age or younger. However, they will rely on the statutory factors, rather than the suggested single factor (a size cut-off of 24 cm) since it is possible that other features can strongly indicate that the footwear is intended primarily for children 12 years old or younger even though the length of the footwear exceeds 24 cm.

Items in Math and Science Kits Considered as Whole

CPSC agrees with the commenters that many math and science kits that are sent to schools for the purpose of teaching these subjects contain materials, such as rubber bands, staples, paper clips, and other items, that can be found in any hardware or grocery store. In determining whether these assembled products should now be considered children’s products because of their new use, packaging, and marketing to schools, they consider the four specified statutory factors together as a whole. If a distributor or retailer sells or rents a general use product in bulk through distribution channels that target children 12 years of age or younger in educational settings, such as schools or summer camps, this type of a distribution strategy would not necessarily convert a general use product into a children’s product.

However, if the product is packaged in such a manner that either expressly states or implies with graphics, themes, labeling, or instructions that the product is designed or intended primarily for children 12 years of age or younger, then it may be considered a children’s product if the required consideration of all four statutory factors supports that determination. Products mainly intended for use by the instructor would not be considered children’s products.

Musical Instruments Distributed to Schools Not Necessarily Children’s Products

Similarly, CPSC states that if a distributor or retailer sells or rents in bulk, general use musical instruments through distribution channels that target children 12 years of age or younger in educational settings, such as schools or summer camps, this type of a distribution strategy would not necessarily convert a general use product into a children’s product. However, if the product is packaged in such a manner that either expressly states or implies with graphics, themes, labeling, or instructions that the product is designed or intended primarily for children 12 years of age or younger, then it may be considered a children’s product if the required consideration of all four statutory factors supports that determination.

Only Pens, Pencils, Office Supplies Intended Primarily for Children Covered

In response to requests that pens, pencils, and other office supplies be specifically included as general use items because they are used mainly by the general public, CPSC states that some pens and pencils are designed and intended primarily for children 12 years old and younger. However, if a pen, pencil, or other office supply is not designed or intended primarily for children 12 years old and younger, it would not be considered a children’s product.

CPSIA 3rd Party Testing/Certification Not Needed for Art Material LHAMA Rules

CPSC explains that an art material designed or intended primarily for children 12 years of age or younger would have to be tested by a third party laboratory to demonstrate compliance with CPSIA, but it would not require third party testing and certification to the LHAMA requirements (which require the manufacturer, importer, or repackager of art materials to have their product’s formulation reviewed by a toxicologist for its potential to cause chronic adverse health effects). This is because LHAMA does not contain a performance standard similar to those in consumer product safety rules but rather requires labeling in the form of a conformance statement that the product formulation has been reviewed by a toxicologist.

Model Trains for Hobbyists Considered General Use Products

CPSC has added “model railways and trains made for hobbyists” to the list of examples of “collectible” items that would be considered general use products.

(See ITT’s Online Archives or 04/10/10 and 07/12/10 news, 10042024 and 10071208, for BP summaries of CPSC’s proposed rule and trade comments on it.

See ITT's Online Archives or 08/27/10 news, 10082716 and for BP summary of the draft version of this final rule.

See ITT's Online Archives or 09/30/10 news, 10093020, for BP summary of the six major changes CPSC said it made to the draft in its September 29, 2010 vote to approve the final rule.

See ITT’s Online Archives or 10/06/10 news, 10100611, for BP summary of Commissioner comments on the final rule.)

CPSC contact -- Jonathon Midgett (301) 504-7692 or jmidgett@cpsc.gov

Commissioner statements are available here.