[Federal Register Volume 75, Number 198 (Thursday, October 14, 2010)]
[Rules and Regulations]
[Pages 63067-63080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25645]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1200
[Docket No. CPSC-2010-0029]
Interpretation of ``Children's Product''
AGENCY: Consumer Product Safety Commission.
ACTION: Final interpretative rule.
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SUMMARY: The Consumer Product Safety Commission (``CPSC,''
``Commission,'' or ``we'') is issuing a final interpretative rule on
the term ``children's product'' as used in the Consumer Product Safety
Improvement Act of 2008 (``CPSIA''), Public Law 110-314. The final
interpretative rule provides additional guidance on the factors that
are considered when evaluating what is a children's product.\1\
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\1\ The Commission voted 3-2 to publish this final
interpretative rule, with changes, in the Federal Register. Chairman
Inez M. Tenenbaum, Commissioners Thomas Moore and Robert Adler voted
to publish the final interpretative rule with changes. Commissioners
Nancy Nord and Anne Northup voted against publication of the final
interpretative rule. All of the Commissioners issued statements. The
web address for Commissioners' statements is: http://www.cpsc.gov/pr/statements.html.
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DATES: Effective Date: This rule is effective October 14, 2010.
FOR FURTHER INFORMATION CONTACT: Jonathan D. Midgett, Office of Hazard
Identification and Reduction, Consumer Product Safety Commission, 4330
East West Highway, Bethesda, Maryland 20814, telephone (301) 504-7692,
e-mail [email protected].
SUPPLEMENTARY INFORMATION:
A. 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.'' 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. 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.
The Age Determination Guidelines issued by the Commission
staff in September 2002 and any successor to such guidelines.
B. Discussion of Comments to the Proposed Interpretative Rule and
Changes to the Final Interpretative Rule
In the Federal Register of April 20, 2010 (75 FR 20533), the
Commission published a proposed interpretative rule to help interested
parties understand how the Commission will determine whether a
particular consumer product is a ``children's product.'' By this rule,
the Commission intends to clarify its interpretation of the statutory
requirements and provide guidance on sections 101, 102, and 103 of the
CPSIA with regard to children's products. The language in the preamble
of this rule and the preamble of the proposed rule (75 FR at 20533) (to
the extent the proposed rule was not altered by the final rule) may be
consulted in determining its administrative construction and meaning.
The Commission recognizes that the determination of whether a product
meets the definition of a children's product depends on factual
information that may be unique to each product and, therefore, would
need to be made on a case-by-case basis. Given the factual nature of
the inquiry, this rule is intended to give interested parties a better
understanding of our approach in evaluating children's products. This
document does not impose any additional requirements beyond those in
the CPSIA, but informs the public of the Commission's interpretation of
the term
[[Page 63068]]
``children's product.'' The proposed interpretative rule would create a
new section in the CFR interpreting the definition of children's
product and elaborating on the accompanying statutory factors.
The Commission 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.
The Commission received numerous comments from individuals and
groups, including consumers, consumer organizations, manufacturers,
trade associations, and testing laboratories. Several commenters
supported the proposed rule; other commenters sought to clarify,
expand, or limit the scope of the rule.
We initially proposed this section under Chapter II of Title 16,
Part 1500 of the Federal Hazardous Substances Act (``FHSA''). However,
because the definition of children's product amends section 3(a)(2) of
the Consumer Product Safety Act (``CPSA''), on our own initiative, we
have renumbered the final rule to become a new Part 1200, Definitions,
under Subchapter B--Consumer Product Safety Act Regulations.
As a result of our decision to place the final rule in a new part
1200, we have, on our own initiative, created a new Sec. 1200.1 to
describe the purpose of the new part 1200. Section 1200.1 states that
part 1200 is intended to provide guidance on the definition of
children's product and the factors considered for making determinations
regarding children's products as set forth under 15 U.S.C. 2052(a)(2).
Additionally, proposed Sec. 1500.92, ``Definition of children's
product,'' is now renumbered as Sec. 1200.2 in the final
interpretative rule.
We describe and respond to the comments in part B of this document
and also describe the final rule. To make it easier to identify
comments and our responses, the word ``Comment,'' in parentheses, will
appear before the comment's description, and the word ``Response,'' in
parentheses, will appear before our response. We also have numbered
each comment to help distinguish among different comments. The number
assigned to each comment is purely for organizational purposes and does
not signify the comment's value, importance, or the order in which it
was received.
1. Definition of ``Children's Product''--Sec. 1200.2(a)(2)
(Formerly Sec. 1500.92(a)(1)). Proposed Sec. 1500.92(a) would provide
that, under section 3(a)(2) of the CPSA, a children's product means a
consumer product designed or intended primarily for children 12 years
of age or younger. We interpreted 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. In addition, because the statutory factors
incorporate the concept of ``use'' by the child in some manner,
proposed Sec. 1500.92(a)(1) interpreted ``for use'' by children 12
years or younger generally to mean that children will physically
interact with such products based on the reasonably foreseeable use and
misuse of such products.
(Comment 1)--Several commenters state that the definition should be
clear that children's products are only those designed or intended by
the manufacturer to be primarily for children 12 years of age or
younger and that a product falls outside the scope of the definition if
the product was designed or intended primarily by the manufacturer for
older children or adults. In addition, some commenters request that the
Commission limit the scope of the definition by emphasizing that the
manufacturer's intent is the key factor for evaluating whether a
consumer product is a children's product. According to these
commenters, the interpretative rule should make clear that the
remaining statutory criteria would be subordinate to statements made by
manufacturers about the intended age of the users.
(Response 1)--We disagree that a determination of what is a
children's product should be based mainly on the manufacturer's intent.
The statute provides that the definition of a ``children's product'' is
a consumer product designed or intended primarily for children 12 years
of age or younger. In determining whether a consumer product is
primarily intended for a child 12 years of age or younger, section
3(a)(2)(A) through (D) of the CPSA expressly mandates an analysis of
four factors that ``shall be considered'': (1) A statement by the
manufacturer about the intended use of the product, including a label
on such product if such statement is reasonable; (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; (3) whether the product is commonly recognized by consumers as
being intended for use by a child 12 years of age or younger; and (4)
the Age Determinations Guidelines issued by the Commission staff in
September 2002, and any successor to such guidelines. All of these
factors will be considered in each case to the extent that they are
applicable.
The manufacturer's statement of intent, including labeling, is only
one of four factors that we must consider. While we agree that the
manufacturer's statement of intent plays an important role in making
initial children's product determinations, it is not necessarily
determinative, or entitled to greater weight than any other factor.
Courts have held that, as a general rule, when a statute requires an
agency to consider a factor, the agency must reach ``an express and
considered conclusion'' about the bearing of the factor, but need not
give ``any specific weight to the factor.'' Small Refiner Lead Phase-
Down Task Force v. EPA, 705 F.2d 506, 516 (DC Cir. 1983) (quoting
Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (DC Cir. 1978)). At a
minimum, all the statutory factors must be considered when determining
whether a particular consumer product is considered to be intended
primarily for children 12 years of age or younger, and we will not
initially assign any more or less weight to any individual factor.
(Comment 2)--Other commenters state that the proposed definition of
children's product should not contain a definition of ``for use'' by
children that is based on ``physical interaction'' and ``foreseeable
use and misuse'' of such products by children. According to the
commenters, the requirement that children physically interact with such
products would capture many household products that would not be
designed or intended primarily for children 12 years of age or younger.
(Response 2)--We disagree that the interpretation of ``for use''
would capture general use products that are not primarily intended for
use by children. We interpret ``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 generally are those with which they will interact
or have direct physical contact, such as with the diaper itself. There
also can be children's products where the interaction is not direct
physical contact, such as a mobile hung over an infant's crib, where
the child's interaction with the mobile is to be
[[Page 63069]]
entertained, soothed, or transitioned to sleep (to mention a few of the
purposes stated in the advertisements for these products).
Contrary to the commenters' assertions, many household products are
not primarily intended for use by children, but may be touched by
children. Products that are considered general use products, such as
televisions, stereo equipment, and appliances, do not become children's
products simply because children may have contact with them because the
products are not designed or intended primarily for use by children 12
years of age or younger.
When evaluating products, the Commission 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. We agree that foreseeable
misuse in this context may be difficult for a manufacturer to
determine. An analysis of the foreseeable uses should be adequate to
make the initial determination as to whether a product is a children's
product. We have revised the final rule to reflect these changes and
advise readers to disregard the discussion of misuse in the preamble to
the proposed rule (75 FR at 20535).
(Comment 3)--A few commenters state that the proposed
interpretative rule affects other requirements previously established
for toys and children's products. Specifically, the commenters give as
an example board/table games, which were identified under the Age
Determination Guidelines as being appropriate for children in the 6-
year-old range. The commenters assert that the games would have to
comply with ASTM F963 (a toy standard that is now a mandatory consumer
product safety standard pursuant to section 106 of the CPSIA),
applicable FHSA requirements under 16 CFR 1500.50 through 1500.53, lead
in surface coatings under 16 CFR 1303, and phthalates requirements of
the CPSIA. If the games are general use products, the commenters claim
that such products would not be required to comply with the lead in
substrate requirements, or the tracking label requirements, or the
mandatory third party testing requirements under the CPSIA.
(Response 3)--We recognize that some board games could be treated
differently under separate provisions of the CPSIA, the cited FHSA
regulations, and ASTM F963. In most places, however, the statutes and
regulations can be read consistently. For example, to the extent that
toys or other articles are subject to small parts testing because they
are intended for use by children under 3 years of age, it is reasonable
to conclude that they are children's products. Likewise, for toys and
other articles intended for use by children under 8 years of age that
are subject to the use and abuse tests at 16 CFR 1500.50 through
1500.53, and the sharp points and edges tests at 16 CFR 1500.48 through
1500.49, such products would also logically be considered children's
products. We have added the following sentences to clarify this in the
rule. The final interpretative rule now states in relevant part:
Toys and articles that are subject to the small parts
regulations at 16 CFR Part 1501 and in ASTM F963, would logically
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 product 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 also must comply with all requirements applicable
to children's products including, but not limited to, those under
the Federal Hazardous Substances Act, ASTM F963, ``Standard Consumer
Safety Specification for Toy Safety,'' and the Consumer Product
Safety Improvement Act of 2008.
We discuss children ages 9 through 12 in the comments and responses to
proposed Sec. 1500.92(c)(1) (now renumbered as Sec. 1200.2(c)(1) in
the final rule).
(Comment 4)--One commenter states that the definition of children's
products should include pet foods. Another commenter states that adult
absorbent care products should be distinguished from children's
diapers.
(Response 4)--Pet foods and adult absorbent products are outside
the scope of this interpretative rule because these products are
regulated under the Federal Food, Drug, and Cosmetic Act (``FFDCA'').
21 U.S.C. 201, et seq. Pet food falls within the definition of ``food''
at section 201(f) of the FFDCA, which defines ``food,'' in part, as
``articles used for food or drink for man or other animals.''
As for diapers, although children's diapers are considered
children's products, adult absorbent products are devices as defined at
section 201(h) of the FFDCA, and the Food and Drug Administration
classifies a ``protective garment for incontinence'' as a class I
device (see 21 CFR 876.5920).
2. Definition of ``General Use Product''--Sec. 1200.2(b)(1)
(Formerly Sec. 1500.92(b)(1)). Proposed Sec. 1500.92(b)(1) would
define a general use product to mean a consumer product that is not
designed or intended primarily for use by children 12 years old or
younger. The proposal also would interpret a general use product as a
consumer product ``mainly for consumers older than age 12'' and would
explain that 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 proposal would
provide that, ``[e]xamples of general use products may include products
with which a child would not likely interact, or products with which
consumers older than 12 would be as likely, or more likely to interact.
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.''
(Comment 5)--Several commenters would have us make explicit that,
if a product is as likely or more likely to be used by a child older
than 12 years of age than by a child 12 years of age or younger, the
product may not be considered a children's product. Other commenters
state that the terms ``as likely'' and ``just as appealing'' (which
appeared in the preamble to the proposed rule and not in the codified
text itself (see 75 FR at 20534)) to compare younger and older children
adds subjectivity and uncertainty to the determination process. These
commenters believe that, if a determination is not clear cut, the
Commission should err in protecting child safety and health. In
addition, the commenters state that products having intrinsic play
value for young children should be considered children's products.
(Response 5)--A children's product is a consumer product designed
or intended primarily for children 12 years of age or younger. General
use products are those consumer products designed or intended primarily
for consumers older than age 12. As we stated in the preamble to the
proposed rule, ``if an older child or adult is as likely, or more
likely to interact with the [product] than a child, such a [product]
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.'' See 75 FR at 20534. We will consider all four
of the statutory factors to determine
[[Page 63070]]
if a product is primarily intended for children 12 years of age or
younger, always keeping in mind that one of the Commission's most
important mandates is to protect children's health and safety.
We disagree with the comment that any product that has intrinsic
play value for young children would automatically be considered a
children's product. 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. The Commission has other statutory authorities to address
nonchildren's products that may pose a risk to children.
3. Other products specifically not intended for use by children 12
years of age or younger--Sec. 1200.2(b)(2) (Formerly Sec.
1500.92(b)(2)). Proposed Sec. 1500.92(b)(2) would state that 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, this
section would provide that products that incorporate performance
requirements for child resistance are not children's products because
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.
We did not receive any comment on this provision. Therefore, other
than renumbering the provision to be Sec. 1200.2(b)(2), we have
finalized this section without change.
4. Factors Considered--Sec. 1200.2(c) (Formerly Sec. 1500.92(c)).
Proposed Sec. 1500.92(c) would set forth the statutory factors that
must be considered to determine whether a consumer product is primarily
intended for a child 12 years of age or younger.
We did not receive any specific comment on this provision.
Therefore, other than renumbering the provision to be Sec. 1200.2(c),
we have finalized this section with a nonsubstantive change.
5. Manufacturer's Statement--Sec. 1200.2(c)(1) (Formerly Sec.
1500.92(c)(1)). Proposed Sec. 1500.92(c)(1) would explain that a
manufacturer's statement about the product's intended use, including
the product's labels, should be reasonably consistent with the expected
use patterns for a product. This section also would provide that, ``[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.
(Comment 6)--One commenter would revise the interpretative rule to
clarify the ``gray'' area of products designed or intended both for
children 9 to 12 years old and for teenagers and older. The commenter
states that the manufacturer's statement should refer to ages 9 and up,
rather than ages 10 and up.
(Response 6)--We agree that the hardest questions regarding
determinations on whether a product is primarily intended for children
12 years of age or younger will often involve this age group. For
example, the requirements for the use and abuse test methods and for
the sharp points and edges test methods discussed in part B.1 of this
document and Sec. 1200.2(a) do not extend past 96 months (8 years of
age). The Age Determination Guidelines group 9 to 12-year-olds together
because these older children have advanced cognitive and motor skills,
as well as the ability to care for their belongings, compared to
younger children. Thus, products in this category may have
characteristics that are also appropriate for products intended for
older children and adults. A number of products intended for this age
group (9 and up, 10 and up, 11 and up, and 12 and up) will require
further evaluation. However, we have revised the final rule to include
ages 9 and up, rather than ages 10 and up to reflect the age groups
discussed in the Age Determination Guidelines. The sentences now state,
``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.''
6. Packaging, Display, Promotion or Advertising--Sec. 1200.2(c)(2)
(Formerly Sec. 1500.92(c)(2)). Proposed Sec. 1500.92(c)(2) would
restate the statutory factor on whether a product is represented in its
packaging, display, promotion, or advertising as appropriate for use by
children 12 years of age or younger.
We did not receive any specific comment on this provision.
Therefore, other than renumbering the provision to be Sec.
1200.2(c)(2), we have finalized this section without change.
7. Express or Implied Representations--Sec. 1200.2(c)(2)(i)
(Formerly Sec. 1500.92(c)(2)(i)). Proposed Sec. 1500.92(c)(2)(i)
would explain that, for example, advertising that expressly declares
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, for example, advertising showing children 12 years of age or
younger using the product may support a determination that the product
is a children's product. The proposal would state that such
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.
We did not receive any specific comment on this provision.
Therefore, other than renumbering the provision to be Sec.
1200.2(c)(2)(i), we have finalized this section without change.
8. Product's Physical Location--Sec. 1200.2 (c)(2)(ii) (Formerly
Sec. 1500.92(c)(2)(ii)). Proposed Sec. 1500.92(c)(2)(ii) would state
that 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.
(Comment 7)--One commenter states that if a store decides to place
a youth basketball in a toy shop section, instead of the teen and adult
sporting goods section, it does not make it less of a basketball, and
the location should not be determinative in the analysis.
(Response 7)--We agree that a product's location, while important,
is not determinative. The physical placement of a product in a store
may not be known by the manufacturer when an age determination is made,
and manufacturers may not have any control over the placement of their
products. However, if such marketing information is known, it should be
considered in the determination analysis because the physical location
of a product in a store is part of the product's marketing. In
addition, the Commission may consider the kind of stores to which a
product is distributed in determining whether it is designed or
primarily intended for children 12 years of age or younger.
(Comment 8)--One commenter states that the packaging, marketing,
and placement in a retail store should be the main indication that the
product is targeting children 12 years of age and under. The commenter
asserts that the
[[Page 63071]]
interaction between this factor and the others should be clearly
stated.
(Response 8)--While the packaging, marketing, and store placement
will be considered, these factors do not necessarily outweigh the other
factors that may need to be considered in making an age determination.
We will weigh all of the relevant factors. Therefore, other than
renumbering the provision to be Sec. 1200.2(c)(2)(ii), we have
finalized this section with nonsubstantive changes.
9. Marketing with Other Products--Sec. 1200.2(c)(2)(iii) (Formerly
Sec. 1500.92(c)(2)(iii)). Proposed Sec. 1500.92(c)(2)(iii) would
state that 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.
(Comment 9)--One commenter states that stuffed animals sold with
adult products should be considered general use items since the
manufacturer intended the product for distribution to adults.
(Response 9)--We disagree with the commenter. Packaging of toys or
other articles appropriate for children along with adult products
occurs occasionally. Therefore, we will not assume that all products in
a copackaged product are general use products if the copackaged product
contains toys or other articles that are appealing to and more likely
to be used by children.
Therefore, other than renumbering the provision to be Sec.
1200.2(c)(2)(iii), we have finalized this section without change.
10. Commonly Recognized by Consumers--Sec. 1200.2(c)(3) (Formerly
Sec. 1500.92(c)(3)). Proposed Sec. 1500.92(c)(3) would state that the
consumer perception of the product's use by children, including its
reasonably foreseeable use and misuse, will be evaluated. In addition,
the proposed interpretative rule would state that sales data, market
analyses, focus group testing, and other marketing studies may help
support an analysis regarding this factor.
We did not receive any specific comment on this provision.
Therefore, other than renumbering the provision to be Sec.
1200.2(c)(3), and removing the reference to ``misuse'' for the same
reasons as discussed in Response 2, we have finalized this section
without change.
11. Additional Features and Characteristics of Children's
Products--Sec. 1200.2(c)(3)(i) (Formerly Sec. 1500.92(c)(3)(i)).
Proposed Sec. 1500.92(c)(3)(i) would list additional considerations
that may help distinguish children's products from nonchildren's
products. For example, the proposed rule would include considerations
such 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); and 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.
We did not receive any specific comment requesting modification of
this provision. Therefore, other than renumbering the provision to be
Sec. 1200.2(c)(3)(i), we have finalized this section without change.
12. Principal Use of Product--Sec. 1200.2(c)(3)(ii) (Formerly
Sec. 1500.92(c)(3)(ii)). Proposed Sec. 1500.92(c)(3)(ii) would state
that a product's principal use may help consumers distinguish
children's products from nonchildren's products. The proposed
interpretative rule would explain that just because an item could be
used as a children's product, such as when a child pretends that a
broom is a horse, that does not mean the item is a children's product
because the broom's principal use is for sweeping.
We did not receive any specific comment on this provision.
Therefore, other than renumbering the provision to be Sec.
1200.2(c)(3)(ii), and rephrasing the provision for clarity, we have
finalized this section without change.
13. Cost--Sec. 1200.2(c)(3)(iii) (Formerly Sec.
1500.92(c)(3)(iii)). Proposed Sec. 1500.92(c)(3)(iii) would state that
the cost of a given product may influence consumer perception regarding
the age of intended users.
(Comment 10)--A few commenters state that cost should not be a
factor because many products, such as craft products and Halloween
products, are low cost, and that this factor does not correlate with
whether the products are more likely to be given to children. Another
commenter states that we should clarify the consideration of ``cost''
in determining what is a children's product and include representative
monetary frameworks for some categories.
(Response 10)--Although the cost of a product, by itself, is not
determinative, the cost of an item can be a consideration. As stated in
the preamble of the proposed rule:
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. See 75 FR 20536 (April 20,
2010).
Given the variety of products in the marketplace, we cannot provide
monetary frameworks for categories of products and must evaluate
products on a case-by-case basis. Therefore, other than renumbering the
provision to be Sec. 1200.2(c)(3)(iii), we have finalized this section
without change.
14. Children's Interactions--Sec. 1200.2(c)(3)(iv) (Formerly Sec.
1500.92(c)(3)(iv)). Proposed Sec. 1500.92(c)(3)(iv) would explain that
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.
(Comment 11)--One commenter disagrees with the Commission's
analysis of a child's interaction with certain items discussed under
furniture and fixtures and the interaction's effect on whether or not a
product was a children's product. The commenter notes that the
Commission stated in the proposed rule that ``a humidifier may be used
in a child'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.'' While agreeing that an ordinary household humidifier is
a general use product, the commenter states that a humidifier that is
composed of colored plastic and shaped like a baby animal with a smile
on its face is not equally likely to be purchased for and used by
adults and children; the humidifier is designed to appeal primarily to
young children and used in a young child's room. The commenter notes
that the child's use of the product is indirect in that the child uses
it by benefitting from the steam it emits. The commenter also questions
[[Page 63072]]
the Commission's interpretation of ``interaction'' in the example of a
lamp that has a childish theme (for example, a nonmovable fire truck
with a Dalmatian) but does not have ``play value'' or features that add
play value or other features that would invite physical interaction
with the lamp beyond turning it on or off. The commenter believes such
childish embellishments are expressly designed to appeal primarily to
children and to be used in a child's room, not in that of an adult.
(Response 11)--We agree that products that are designed or intended
primarily for children 12 years of age or younger would be considered
children's products and that the child's interaction with the product
does not have to be physical, although that is generally the case. We
noted earlier the example of the crib mobile, where the interaction is
not direct physical contact, but where the child's interaction with the
mobile is to be entertained, soothed, or transitioned to sleep (to
mention a few of the purposes stated in the advertisements for these
products). Whether these products are children's products will be
determined by an evaluation of all the factors listed in the statute,
just as with any other product. Adult lamps or ordinary household
humidifiers that are placed in any room of a home would be considered
general use products. The ability or inability of a young child to turn
a lamp (or other product) on or off would not determine whether or not
it is a children's product. 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. This
represents a change from the proposed rule, and any language in the
preamble to the contrary should be disregarded, and the final rule is
revised to reflect this change.
A home furnishing product that is embellished or decorated in a
manner that is appealing to children 12 years of age or younger and is
marketed to be placed in the rooms of such children could be considered
a children's product. Such embellishment would not be considered in
isolation, however. Features that invite or entice the child to use the
product, or invite physical interaction, would support such a
determination along with how the product is marketed and advertised and
any manufacturer's statement of intended use.
15. The Age Determination Guidelines--Sec. 1200.2(c)(4) (Formerly
Sec. 1500.92(c)(4)). Proposed Sec. 1500.92(c)(4) would quote the
statutory factor at section 3(a)(2)(D) of the CPSA regarding the Age
Determination Guidelines (``Guidelines'') issued by the Consumer
Product Safety Commission staff in September 2002 and any successor to
such guidelines. The proposal also would explain that a 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.
(Comment 12)--A few commenters state that the Guidelines are only
intended to evaluate the play value of toys and should not be expanded
to evaluate whether children of certain ages can successfully perform
specific tasks if the product or type of product is not specifically
mentioned by the Guidelines.
(Response 12)--We disagree with the commenters. Congress has
mandated that the Age Determination Guidelines be one of the four
statutory factors considered in determining whether a product is
intended primarily for children. The Guidelines generally describe the
factors that appeal to children and the activities that they can
perform across childhood and can be used in making an age determination
of any product, whether it is a toy or other article intended for use
by children. The Guidelines provide information about social,
emotional, cognitive, and physical developments during childhood. That
information applies to many products not actually mentioned by name in
the Guidelines.
16. Examples--Sec. 1200.2(d) (Formerly Sec. 1500.92(d)). Proposed
Sec. 1500.92(d) would provide examples to help manufacturers
understand what types of products would constitute a children's product
under the CPSA.
We did not receive any specific comment on this provision.
Therefore, other than renumbering the provision to be Sec. 1200.2(d),
we have finalized this section without change.
17. Furnishings and Fixtures--Sec. 1200.2(d)(1) (Formerly Sec.
1500.92(d)(1)). Proposed Sec. 1500.92(d)(1) would give examples of
general home furnishings and fixtures (such as ceiling fans,
humidifiers, and air purifiers) that often are found in children's
rooms or schools, but 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. The proposal also would give
examples of home or school furnishings that are primarily intended for
use by children and considered children's products, such as infant
tubs, bath seats, and child-sized chairs. We also stated that
decorative items, such as holiday decorations and household seasonal
items that are intended only for display and with which children are
not likely to interact, are generally not considered children's
products because they are intended to be used by adults.
(Comment 13)--One commenter states that hooks should be considered
general use products, whether or not they are embellished with a
children's theme.
(Response 13)--Any home furnishing or fixture that is decorated or
embellished with a childish theme and invites use of the product by the
child, is sized for a child, or is marketed to appeal primarily to a
child, could be found to be a children's product designed or intended
primarily for children 12 years of age or younger, such as, for
example, clothing hooks embellished with a childish theme to make them
appear to be pirate's hooks. As we noted in the preamble to the
proposed rule, unembellished clothing hooks would be considered general
use products, unless a manufacturer attaches the hook to a children's
product, such as a child-sized desk (thereby making it clear the hook
is intended to be used primarily by a child) in which case that hook
would be considered a children's product.
(Comment 14)--One commenter seeks clarification on the factors on
furniture and collections of furniture that are suitable for children
from birth through college. According to the commenter, manufacturers
use various terms that are confusing, including ``juvenile'' and
``youth'' furniture. In addition, the commenter requests an ability to
obtain informal and quick opinions from the Commission staff, to make
such opinions publicly available on the web, and to create a mechanism
for resolving disputes.
(Response 14)--The manufacturer is in the best position to
initially determine whether a ``collection'' of furniture is designed
or intended primarily for children 12 years of age or younger. However,
to the extent that children 12 years of age or younger will be using
such furniture from birth or toddler age through their teenage years,
we consider such furniture to be children's products because children
will be interacting with such furniture throughout their childhood.
These items are likely to be sized for small children and may have
other characteristics, such as bright colors or embellishments that
would be appealing to children. Although, such products may come with
extension kits or other modifications to make them more
[[Page 63073]]
appropriate for older children, the furniture is intended primarily for
use by young children who may also use such furnishings later as they
become older. To provide guidance regarding determinations that have
been made by Commission staff, as appropriate, we will post on our Web
site, http://www.cpsc.gov, some products that have been determined to
be either children's products or general use products, subject to our
public disclosure of information requirements under 15 U.S.C. 2055,
CPSC regulations at 16 CFR part 1101, and the availability of CPSC
resources.
(Comment 15)--One commenter requests that general home furnishings
include carpets and rugs as examples.
(Response 15)--To provide additional clarity to this section, 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.
(Comment 16)--Another commenter requests that general home
furnishings include holiday decorations, regardless of theme, because
such products are for display only and are not intended to be
children's products. One commenter also states that not all Halloween
products should be considered children's products.
(Response 16)--We agree, in part, and disagree, in part, with the
commenters. We agree 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.
18. Collectibles--Sec. 1200.2(d)(2) (Formerly Sec.
1500.92(d)(2)). Proposed Sec. 1500.92(d)(2) would distinguish adult
collectibles from children's collectibles based on themes that are
inappropriate for children 12 years of age or younger; features that
preclude use by children during play, such as high cost, limited
production, and display features (such as hooks or pedestals); and
whether such items are marketed alongside children's products.
(Comment 17)--A few commenters request that model trains be
specifically included in the definition of general use products. The
commenters state that the average age of a model railroader is 53 years
old and that there is a level of sophistication required to operate the
locomotives. Additionally, the commenters note that model trains may be
costly, with prices from $50 up to $1,575.
(Response 17)--We agree that certain model railroads and trains are
not children's products given the large number of adult model railroad
hobbyists, the costs involved, and the level of sophistication required
to operate them. Model trains and model train accessories (such as
scenery, scale buildings, and supplies), are made by model railway
manufacturers who sell their trains at model train shops and model
train hobby stores. Children's train sets may have childish themes and
may be easier for a child to assemble and use. By contrast, model
railroad hobbyists collect trains, build miniature landscapes for the
trains, or even operate their own miniature railroads outdoors.
Accordingly, the final rule adds ``model railways and trains made for
hobbyists'' to the list of examples of ``collectible'' items that would
be considered general use products.
(Comment 18)--One commenter asks that we add fragility of the
materials as a consideration in determining collectibles. The commenter
also requests a registry of collectibles or online listing to provide
clear guidance.
(Response 18)--We stated in our example in proposed Sec.
1500.92(d)(2) that collectible plush bears are those which have high
cost, are highly detailed, with fragile accessories, display cases, and
platforms. We believe that fragility of the materials may also be
considered when assessing a collectible because children are less
likely to be given items that can break. Accordingly, we have revised
this section to include ``fragile features'' as a characteristic to
help distinguish collectibles from children's products. The first
sentence in this section now states, ``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, 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.''
As for the commenter's request regarding a registry of collectibles
or online listing, as appropriate, we will post on our Web site, http://www.cpsc.gov, some products that have been determined to be either
children's products or general use products by Commission staff,
subject to our public disclosure of information requirements under 15
U.S.C. 2055, CPSC regulations at 16 CFR part 1101, and the availability
of CPSC resources.
(Comment 19)--One commenter disputes the implication that
collectibles must be of high cost or uniquely marked. The commenter
asserts that labeling products ``Not a toy'' or ``Not for use by
children 12 and under'' would be important elements in identifying such
products as intended for adults.
(Response 19)--We agree that not all collectibles are high cost.
High cost is simply one among several considerations we will evaluate
when making a determination. Generally, many collectibles are of higher
cost and/or marked to distinguish such products from similar children's
products. The cost of an item, while not determinative, can be an
important consideration in analyzing collectibles because very
expensive collectibles are less likely to be given to children who may
accidently destroy them. In addition, as discussed in part B.5 of this
document, the statement by a manufacturer about the intended use of a
product, including a label on such product, will be considered in
making any age determination.
19. Jewelry--Sec. 1200.2(d)(3) (Formerly Sec. 1500.92(d)(3).
Proposed Sec. 1500.92(d)(3) would provide characteristics for
distinguishing children's jewelry from adult jewelry. For example, the
proposed interpretative rule would explain that jewelry intended for
children is generally sized, themed, and marketed to children and that
characteristics such as size, very low cost, play value, childish
themes on the jewelry, and sale with children's products may suggest
that the jewelry is a children's product. The proposed interpretative
rule also would explain that 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. The proposed
interpretative rule listed, as aspects of the item's design and
marketing the following factors: Advertising; promotional materials;
packaging graphics and text; size; dexterity requirements for wearing;
appearance (coloring, textures,
[[Page 63074]]
materials, design themes, licensing, level of realism); and cost.
(Comment 20)--One commenter disputes the considerations that are
used in distinguishing adult jewelry from children's jewelry, including
considerations such as dexterity requirements and play value. In
addition, this commenter states that the proposed interpretative rule
failed to include design drawings, brand plans, and compliance with
standards for adult jewelry as considerations of a manufacturer's
intent in developing a product. The commenter asserts that the proposed
interpretative rule improperly expands the application of the Age
Determination Guidelines to products other than toys.
(Response 20)--We disagree that we place an undue emphasis on
dexterity or play value when making age determinations. Dexterity
requirements may be useful for making distinctions between children's
and adult jewelry. While some elastic bracelets may be useful to people
suffering from arthritis, delicate clasps are difficult for younger
children to use, which would indicate that such jewelry may be intended
for older consumers. While jewelry is not considered a toy, some
jewelry can have play value. The most common type of play associated
with children's jewelry is role playing. However, although some general
use products may have intrinsic play value, they do not become
children's products based on that characteristic alone. Play value and
dexterity are only two of the characteristics that are examined in
making age determinations for jewelry.
Regarding the commenter's criticism that the proposed rule did not
include design drawings, brand plans, and compliance with adult jewelry
standards, the proposed interpretative rule specifically indicated that
many aspects of an item's design and marketing are considered when
determining the age of consumers for whom the jewelry is intended and
by whom it will be purchased. The commenter states that design drawings
and brand plans should be relevant considerations in making an age
determination. We agree that such information is relevant to consider
when available for review. Moreover, the manufacturer's intent in
designing, branding, or developing a product is applicable to the
factor regarding the statement by the manufacturer about the intended
use of the product. This could include the manufacturer's compliance
with state standards for adult jewelry. As discussed in Sec.
1200.2(a)(1), the manufacturer's statement is only one of four
statutory factors considered in making a determination.
Additionally, the Commission recognizes that the determination of
whether a product is a children's product is based on whether it is
designed or intended primarily for children 12 years of age or younger
and not the frequency of such a product's appeal to adults. We have
made this change to the rule to reflect this recognition.
We disagree that we improperly expanded the Age Determination
Guidelines (2002) to cover products other than toys. The Guidelines are
among the factors that must be considered when making determinations.
The descriptions of factors that appeal to children and the activities
that they can perform across childhood are described generally in the
Guidelines for use in age determinations of any product, whether it is
a toy or other article intended for children. The Guidelines provide
information about social, emotional, cognitive, and physical
developments during childhood that are applicable to many products that
are not specifically named in the Guidelines.
20. DVDs, Video Games, and Computer Products--Sec. 1200.2(d)(4)
(Formerly Sec. 1500.92(d)(4)). Proposed Sec. 1500.92(d)(4) would
consider most computer products and electronic media devices, such as
CDs, DVDs, and DVD players, to be general use products. However, the
proposal also would explain that 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. The proposed
interpretative rule would explain that CPSC staff may consider ratings
given by entertainment industries and software rating systems when
making an age determination. The proposed interpretative rule would
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. Accordingly, the proposed interpretative rule would
indicate that these types of CDs or DVDs would not be considered
children's products because they are not used ``by'' children and
children do not physically interact with such products. The proposed
interpretative rule would say that CDs or DVDs 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.
(Comment 21)--Several commenters assert that an approach
distinguishing CDs and DVDs for very young children who lack the motor
skills to operate CDs and DVDs, from CDs and DVDs for older children
who have such motor skills is a false distinction. These commenters
state that a very young child is not allowed to handle a CD or DVD
unless he or she learns to insert it properly into a CD or DVD player.
The commenters claim that a child will interact much more with the CD
or DVD player than he or she will interact with the CD or DVD itself. A
commenter also states that the Commission's proposed guidelines
regarding CDs provide no clear mechanism for manufacturers and
distributors to interpret or implement the definition; that children's
music is not marketed like toys as ``age 3+'' or ``suitable for under
3''; and any such distinctions in children's music would be entirely
arbitrary and meaningless. Another commenter found the DVD discussion
to be confusing and thought it would be difficult to implement. The
commenter suggested eliminating the distinction between products
intended for nursery-aged children and those intended for the next age
group and thought we should just consider all of those DVDs to be
children's products. The commenter also said it would be easier to base
the age determinations on the already established ratings systems.
(Response 21)--Upon further consideration, we agree 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, we must consider the four statutory factors
to assess these products. 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. This represents a change from the proposed rule, and
any language in the preamble to the contrary should be disregarded, and
the final rule is modified to reflect this change.
It should be noted that the final rule also states that some media
players or
[[Page 63075]]
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.
(Comment 22)--One commenter sought clarification on how this
section would affect the existing process for video game research and
rating procedures regarding age. Another commenter states that the
existing rating systems should be used to determine whether the product
is intended for children aged 12 years and under.
(Response 22)--We do not expect that our definition of what is or
is not a children's product to affect the research of products under
development on children's electronic media. The definition would not
affect existing rating mechanisms, which fall under the authority of
the Federal Communications Commission. Video game rating systems would
be considered by staff as one indicator of age range for purposes of
age grading.
(Comment 23)--Other commenters ask that we add more products to a
general use category, including game consoles, book readers, digital
media players, cell phones, and digital assistant communication devices
sized for use by adults, irrespective of any childish decorations, to
avoid any confusion. Some commenters also seek clarification that an
accessory to an electronic children's product (i.e., transformers,
cables, and connectors) is not itself a children's product if it is not
for use by children but is, instead, likely to be used by parents or
guardians. One commenter states that DVDs are exempt from the small
parts requirement under ASTM F963-08. Accordingly, this commenter seeks
clarity on how children's DVDs would be treated.
(Response 23)--We believe that most of these product categories,
including game consoles, book readers, digital media players, cell
phones, and 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. As noted earlier, the
final rule also states that 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.
The exemption from small parts for DVDs has no bearing on age
determinations for DVDs made for children 12 years of age or younger.
The small parts limitations are only applicable to toys for children
younger than 3 years of age.
21. Art Materials--Sec. 1200.2(d)(5) (Formerly Sec.
1500.92(d)(5)). Proposed Sec. 1500.92(d)(5) would consider art
materials sized, decorated, and marketed to children 12 years of age or
younger, such as crayons, finger paints, and modeling dough, to be
children's products. The proposed interpretative rule would explain
that 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, but that the marketing and labeling of raw
materials (such as modeling clay, paint, and paint brushes) may often
be given high priority for these art materials because the appeal and
utility of these raw materials has such a wide audience.
(Comment 24)--One commenter states that the emphasis on marketing
will lead to confusion because many art tools are small and may also be
used by an adult. The commenter states that a more compelling and
logical framework is to consider the circumstances under which a child
will be using the product. The commenter asserts that, if the product
has an instructional purpose which will be under the supervision of an
adult, such products should be considered general use products,
including child-sized craft tools, child-sized musical instruments,
child-sized saddles and equestrian equipment, and classroom science
kits.
(Response 24)--Size, marketing, and other factors will be
considered when making age determinations. 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.
The level of expected adult supervision needed for a product is not
generally useful when making a children's product determination. If the
product otherwise meets the definition of ``children's product,'' the
amount of supervision over the child's use of a children's product will
not transform a children's product into a general use product.
Accordingly, products such as small-sized craft tools, small-sized
musical instruments, and small-sized saddles and equestrian equipment
would be assessed on a case-by-case basis to determine whether such
products are, in fact, children's products. We do note, however, that
if the sizing of the product indicates that children 12 years of age or
younger would be more likely to use such products than older children
or adults, the product would likely fall under the children's product
category, rather than the general use category.
The Commission, on its own initiative, is adding the words ``art
tools'' to the final rule to better describe those materials, such as
paint brushes, which may have a wide audience due to their appeal and
utility and is adding a fuller explanation of distribution strategies
that might target settings such as schools.
As for classroom science kits, we address such products in part
B.23 of this document and its discussion of Sec. 1200.2(d)(7).
(Comment 25)--One commenter states that duplicative third party
testing under the CPSIA should not be required for products that are
covered under the Labeling of Hazardous Art Materials Act (LHAMA).
Accordingly, this commenter requests that LHAMA be included as a FHSA
labeling law in addition to the guidance that most art materials are
general use products.
(Response 25)--We disagree with the comment because we do not
believe that LHAMA duplicates testing required under the CPSIA. LHAMA
requires that the manufacturer, importer, or repackager of art
materials have their product's formulation reviewed by a toxicologist
for its potential to cause chronic adverse health effects. A
conformance statement on the product is used to certify that the
product has been so reviewed. However, the CPSIA introduces additional
test requirements beyond what is required under LHAMA.
As for the commenter's request that we include LHAMA as a labeling
requirement under the Federal Hazardous Substances Act (FHSA), LHAMA
does not contain a performance standard similar to those in consumer
[[Page 63076]]
product safety rules but rather requires labeling in the form of a
conformance statement that the product formulation has been reviewed by
a toxicologist. The requirements of LHAMA are similar to the labeling
requirements of the FHSA, of which it is a part. Therefore, third party
testing to LHAMA is not required. 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. For the same reasons, no general conformity
certificate is required for general use art materials.
22. Books--Sec. 1200.2(d)(6) (Formerly Sec. 1500.92(d)(6)).
Proposed Sec. 1500.92(d)(6) would state that the content of a book can
determine its intended audience. The proposed interpretative rule would
explain that 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 proposal also would explain
that the age guidelines provided by librarians, education
professionals, and publishers may be dispositive for determining the
intended audience. Furthermore, 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.
(Comment 26)--One commenter asks us to clarify whether children's
magazines are covered by the CPSIA. Another commenter states that sales
data should not be considered for books since adults purchase books for
children.
(Response 26)--Children's magazines are evaluated using the same
principles as those that apply to children's books in the
interpretative rule. If intended primarily for children 12 years of age
or younger, magazines must comply with the CPSIA requirements for
children's products. We only consider sales data to be relevant to the
extent that it reveals where the products are sold, such as in a
children's book or toy store.
23. Science Equipment--Sec. 1200.2(d)(7) (Formerly Sec.
1500.92(d)(7)). Proposed Sec. 1500.92(d)(7) would consider
microscopes, telescopes, and other scientific equipment that would be
used by an adult, as well as a child, to be general use products. The
proposed interpretative rule would explain that 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. However, the proposal would
further explain that, 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.
(Comment 27)--Several commenters state that school supplies, such
as science equipment, writing devices, and musical instruments used in
educational settings, should be considered general use items. They
argue that many items that are specified in these curriculums can be
easily found at department stores, hardware stores, grocery stores, and
specialty shops. In addition, other commenters state that many science
and math programs and kits are principally designed and used as
instructional materials for teachers in a classroom setting.
Accordingly, they request that we revise the rule to include such items
as general use items when marketed and sold for the purpose of
supervised, hands-on educational instruction. In addition, a few
commenters request that pens, pencils, and other office supplies be
specifically included as general use items because they are used mainly
by the general public.
(Response 27)--We agree 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, we 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.
Some pens and pencils are designed or intended primarily for
children 12 years of age or younger. However, if a pen, pencil, or
other office supply is not designed or intended primarily for children
12 years of age or younger, it would not be considered a children's
product.
The Commission notes that, in the context of science equipment,
size may be more pertinent to protective gear, such as gloves and
aprons, in making an age determination than it would be to the
scientific instruments themselves and is, on its own initiative,
changing the final rule to reflect this.
24. Sporting Goods and Recreational Equipment--Sec. 1200.2(d)(8)
(Formerly Sec. 1500.92(d)(8)). Proposed Sec. 1500.92(d)(8)) would
consider sporting goods that are primarily intended for consumers older
than 12 years of age to be general use items. The proposed
interpretative rule would explain that 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. However, this section would provide that
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 children 12 years of age or younger. Likewise, this
section would provide that 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.
(Comment 28)--Several commenters state that sporting equipment
intended for ``tweens,'' teens, and young adults should not be
considered ``children's products.'' One commenter states that
``legitimate'' sporting goods should be general use products whether
they are used by a 9-year-old or 13-year-old and that ``size'' is
irrelevant to making the determination. The commenter asserts that
their uses and essential purposes are no different than sporting
equipment used by teens. Another commenter states that the cost of
testing these products was too high and resulted in delays in
manufacturing.
(Response 28)--We agree that products sized for general use are not
converted into children's products because they are also used by
children 12 years of age or younger (such as
[[Page 63077]]
``tweens'' whom, based upon the Age Determination Guidelines issued by
the Consumer Product Safety Commission staff in September 2002, for
purposes of this response, we consider to be individuals under 13, but
not younger than 9 years of age). Unless such items are specifically
marketed to children or have extra features that make them more
suitable for children than for adults, they would be considered general
use products. However, we disagree that sizing of the sporting
equipment would be irrelevant to the age determination. 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.
As for the comment regarding testing costs and manufacturing
delays, such matters are outside the scope of this rulemaking. Comments
related to testing and certification are addressed in separate
rulemaking on product certification published in the Federal Register
on May 20, 2010 (75 FR 28336). Additionally, the Commission recognizes
that the use of the term ``regulation sized sporting equipment'' leaves
room for confusion between whether the Commission is referring to youth
regulation size or adult regulation size. Accordingly, the final rule
is modified to reflect this consideration and renumbered as Sec.
1200.2(d)(8).
(Comment 29)--One commenter states that the interpretative rule
should be clear that a product sized for an adult, such as a baseball
glove, is considered a general use product even if there is a cartoon
character on it. In addition, the commenter asserts that a wading pool
may be a children's product based on size alone, regardless of whether
it contains additional play features, and requests a definition for
``shallow'' in reference to wading pool depth.
(Response 29)--We agree that the presence of a cartoon character on
an adult-sized product is not sufficient to label a product as a
children's product. Age determinations take into account the principal
use patterns of a given product; so if a baseball glove is too large
for children to use, it would not be intended for use by children 12
years of age or younger and therefore would not be a children's
product, no matter how it is decorated.
In response to the comment regarding wading pools, we agree that
such pools generally are intended for children even without childish
themes or play features. The size, decorations, and depth of a pool may
be sufficient to determine that a product is primarily intended for use
by children. However, the Commission does not have regulations setting
forth the dimensions of wading pools.
25. Musical Instruments--Sec. 1200.2(D)(9) (Formerly Sec.
1500.92(d)(9)). Proposed Sec. 1500.92(d)(9) would consider musical
instruments suited for an adult musician as well as a child to be
general use products. Instruments primarily intended for children can
be distinguished from adult instruments by their size and marketing
themes. The proposed interpretative rule also would explain that
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, this section also would provide that 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.
(Comment 30)--One commenter states that the proposed rule should
explicitly exclude from the definition of children's product
electronically-aided musical instruments and musical devices that are
preprogrammed by the user or the manufacturer.
(Response 30)--We agree that the preprogrammed sounds and
demonstration pieces in electronically-aided musical instruments would
be considered general use products. However, toys that have
preprogrammed sounds will continue to be considered children's
products. Accordingly, we have revised the rule to add ``including
electronically-aided musical instruments'' after ``Musical
instruments.''
The Commission notes 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.
26. Other Issues
(Comment 31)--One commenter states that the effective date should
be delayed to give manufacturers an opportunity to evaluate whether or
not their products are children's products pursuant to this rule.
(Response 31)--Because this is an interpretative rule, a delayed
effective date is not required by the Administrative Procedure Act (5
U.S.C. 553(d)).
(Comment 32)--A few commenters raise issues with footwear. These
commenters state that there is no certainty as to whether an article of
footwear is a children's product and that the issue is confused
especially with youth footwear. According to the commenters, many 12-
year-olds wear adult footwear and that size does not necessarily relate
to age. The commenters request an objective standard of footwear of 24
centimeters (cm) or more as being intended for adults.
(Response 32)--We believe 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, we
will rely on the statutory factors, rather than a single factor 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.
List of Subjects in 16 CFR Part 1200
Business and industry, Infants and children, Consumer protection,
Imports, Toys.
0
For the reasons stated above, the Commission adds 16 CFR part 1200 to
read as follows:
PART 1200--DEFINITION OF CHILDREN'S PRODUCT UNDER THE CONSUMER
PRODUCT SAFETY ACT
Sec.
1200.1 Purpose.
1200.2 Definition of children's product.
Authority: 15 U.S.C. 2052(2).
Sec. 1200.1 Purpose.
This part provides guidance on the definition of children's product
and the factors the Commission will consider when making determinations
regarding children's products as set forth under 15 U.S.C. 2052(2).
Sec. 1200.2 Definition of children's product.
(a) Definition of ``Children's Product''--(1) Under section 3(a)(2)
of
[[Page 63078]]
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 primarily intended for children 12 years of age or
younger is determined by considering the four specified statutory
factors. These factors are:
(i) A statement by a manufacturer about the intended use of such
product, including a label on such product if such statement is
reasonable.
(ii) Whether the product is represented in its packaging, display,
promotion, or advertising as appropriate for use by children 12 years
of age or younger.
(iii) Whether the product is commonly recognized by consumers as
being intended for use by a child 12 years of age or younger.
(iv) The Age Determination Guidelines issued by the Commission
staff in September 2002 and any successor to such guidelines.
(2) The examples discussed herein may also be illustrative in
making such determinations; however, the determination of whether a
product meets the definition of a children's product depends on factual
information that may be unique to each product and, therefore, would
need to be made on a case-by-case basis. 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 of such product. Toys and articles that are subject to
the small parts regulations at 16 CFR Part 1501 and in ASTM F963 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 product 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
also must comply with all requirements applicable to children's
products including, but not limited to, those under the Federal
Hazardous Substances Act, ASTM F963, ``Standard Consumer Safety
Specification for Toy Safety,'' and the Consumer Product Safety
Improvement Act of 2008.
(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 designed or intended primarily for
consumers older than age 12. Some products may be designed or intended
for use by 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 likely interact, or products with which consumers older
than 12 would be as likely, or more likely to interact. 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 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 four
specified statutory factors must be considered together as a whole. The
following four 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, 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) 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 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, for
example 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.
(ii) 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. The Commission
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. The Commission evaluates products more
broadly than on a shelf-by-shelf or store-by-store basis.
(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
[[Page 63079]]
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.
(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
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).
(ii) Principal use of the product--the principal uses of a product
take precedence over other actions that are less likely to be performed
with a product. For example, when a child pretends that a broom is a
horse, that does not mean the item is a children's product because the
broom's 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 to be 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
regarding specific product categories 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, 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 designed or 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.
(2) 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,
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, collectible plush bears have high cost, are highly detailed,
with fragile accessories, display cases, and 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.
Another example of collectible items includes model railways and trains
made for hobbyists.
(3) Jewelry--Jewelry intended for children is generally sized,
themed, and marketed to children. The following characteristics 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: Advertising; promotional materials; packaging graphics and
text; 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.
(4) DVDs, Video Games, and Computer Products--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.
(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. 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. 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
[[Page 63080]]
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. The requirements of the Labeling of Hazardous Art
Materials Act are similar to the labeling requirements of the FHSA, of
which it is a part. Therefore, third party testing to LHAMA is not
required. 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. For the same reasons, no general conformity certificate
is required for general use art materials.
(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 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. Products mainly intended for use by the instructor would
not be considered children's products. In general, scientific equipment
that is specifically sized for children, such as protective gear,
eyewear, gloves, or aprons and/or has childish themes or decorations
and invites use by a child 12 years of age or younger or is marketed to
appeal primarily to children is considered a children's product.
(8) 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.
(9) 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.
Dated: October 6, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-25645 Filed 10-13-10; 8:45 am]
BILLING CODE 6355-01-P