As readers of this blog are well aware, classifying products as “children’s products,” as opposed to “general use products,” has important ramifications under federal and state consumer product safety laws. For example, under federal law, namely the Consumer Product Safety Improvement Act (“CPSIA”), children’s products must meet strict lead content limits, be independently tested by third party laboratories, and contain tracking labels to help consumers identify the product in the event of a recall. Additionally, "children’s toys” must meet phthalates plasticizer prohibitions and comply with the the mandatory ASTM Toy Safety Standard (F-963). Any product that qualifies as a "child care article” must also meet the phthalates prohibitions.
Thus, how a company classifies its consumer products remains critical today for proper compliance with federal and state product safety laws. The CPSIA defines a “children’s product” as, “a consumer product designed or intended primarily for children 12 years of age or younger.” As the CPSC explained in its final interpretative rule, a product can involve intended uses for children 12 and under without making the product a “children’s product,” so long as those uses are not the primary intention for the product. Likewise, the CPSC has stated that products intended for general use by consumers of all ages are not children’s products, even though they may incidentally be used by children.
Many companies manufacture, sell or import products that are not so black or white when it comes to defining them as “children’s” or “general-use” products. Common examples of these types of products include promotional, marketing, and leave-behind products, school supplies, and collectibles. For example, is a colorful pen sold at an amusement park a “children’s product” merely because it has a logo from a popular cartoon on it? The answer may be “it depends.”
What is clear is that a consumer product’s labeling, marketing and representation can support or weaken an argument defining a product as a “children’s product” or “children’s toy.” Companies should determine how their products are classified so all applicable consumer product safety rules are properly identified before the product hits the market. This issue remains important today as enforcement of product safety laws continues to surge, particularly at our ports.