Understanding the CPSC’s New CPSIA Interim Enforcement Policy Step 1 – Is It A Children’s Product?

The Consumer Product Safety Commission’s (CPSC) Interim Enforcement Policy on Component Testing and Certification of Children’s Products and Other Products to the August 14, 2009 Lead Limits (referred to as “Interim Enforcement Policy” in this post) under the Consumer Product Safety Improvement Act (CPSIA) was published in December 28, 2009’s Federal Register. And boy are people confused from the emails I have received!

If you are trying to figure out what you need to do, I think the easiest way to understand how the Interim Enforcement Policy works is to first classify the product. To classify the product, you must address the threshold question: is the product a children’s product?

That isn’t always so easy to answer. For example, over the last year, I’ve gotten countless emails asking whether a diaper bag is a children’s product. It is intended for adults, yet most diaper bags come with a portable diaper changing pad. So, is the basic diaper bag a children’s product or not?

A children’s product is basically that the product is primarily intended or designed for children 12 years of age or younger. The CPSC has provided a statement as to the factors it will consider in determining whether a product is a children’s product or not:

  • A statement by the manufacturer about the intended use of the product, including a label on the 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

Most people don’t find those factors all that helpful for the questionable products. So, the CPSC has provided additional guidance as to what constitutes a children’s product in its Notice of Commission Action on the Stay of Enforcement Testing and Certification Requirements. Now, the CPSC states that it intends further rulemaking on the issue. Until that time, we must consider the CPSC’s pronouncements on the subject.

The Notice states that the CPSC presumes that the following products are children’s products: stuffed animals, hula hoops, outdoor playground equipment, children’s art materials, children’s backpacks and lunchboxes, strollers, playpens and other juvenille products. For products sized for both adults and children, such as mattresses, the youth-sized versions are presumed to be children’s products. Then we have the CPSC’s examples of what it considers to be children’s products subject to regulation under the CPSIA.

The first example is a car mat decorated with children’s animated characters. Although the mat may be decorated in such a way to be attractive to children, the CPSC states that it is intended for use by adults – or at least those old enough to own a car. So the mat is NOT a children’s product.

The second example is shredded mulch for sale at a home improvement store that happens to be used by an elementary school. Again, while it happens to be being used by an elementary school for the children to install a garden, the product is not intended for use by children and has not been marketed to appeal to children. So the mulch is NOT a children’s product.

Okay, so that gives us a lot of guidance. Also instructive is the CPSC’s General Counsel’s letter responding to an inquiry from the Writing Manufacturers Association concerning ballpoint pens. Basically, it comes down to items that are general purpose – such as ballpoint pens – are not children’s product. Of course, the letter leaves open the possibility that a pen can be classified as a children’s product – if the manufacturer advertised it exclusively for children’s use, marketed it as such, etc.

Okay, so if you have determined that your product is a children’s product, then you have to classify it a bit more. Is it a toy? Does it have any painted surfaces? Is it a child care article? Is it a durable nursery good article? I’ll post about these over the next several days.

If it isn’t a children’s product, then you aren’t completely off the hook. There are standards for various consumer products that apply. And I’ll post about these as well over the next several days.

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