Not Mere Child’s Play: New Rule Refining the Definition of “Children’s Product”

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When the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) passed, many of its provisions, such as lead limits, phthalate bans, third party testing, and tracking labels, applied to a seemingly ubiquitous category of products called “children’s products.” The CPSIA defined a “children’s product,” in part, as “a consumer product designed or intended primarily for children 12 years of age or younger.” The CPSIA further defined “children’s product” by identifying four factors to consider in determining whether a consumer product is primarily intended for a child 12 years of age or younger:

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

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

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

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

Even with this lengthy, multi-factored definition, it has been a continuing struggle for manufacturers, importers, distributors, and retailers to determine the boundaries of what constitutes a children’s product for purposes of the new regulatory scheme. The stakes will be high to get the definition right, as the CPSIA grants the Consumer Product Safety Commission (“CPSC”) the authority to penalize manufacturers for noncompliance with CPSIA requirements, including penalties of up to $100,000 for each “knowing” violation of the Consumer Product Safety Act (“CPSA”).

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