Interpretation of “Children's Product”, 20533-20541 [2010-8431]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 75, Number 75 (Tuesday, April 20, 2010)]
[Proposed Rules]
[Pages 20533-20541]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-8431]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500

[Docket No. CPSC-2010-0029]


Interpretation of ``Children's Product''

AGENCY: Consumer Product Safety Commission.

ACTION: Proposed interpretative rule.

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SUMMARY: The Consumer Product Safety Commission (``CPSC,'' 
``Commission,'' or ``we'') is issuing a proposed interpretative rule 
that would interpret the term ``children's product'' as used in the 
Consumer Product Safety Improvement Act of 2008 (``CPSIA''), Public Law 
110-314. The proposal would provide additional guidance on the factors 
that must be considered when evaluating what is a children's product.

DATES: Written comments and submissions in response to this notice must 
be received by June 21, 2010.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0029, by any of the following methods:

Electronic Submissions

    Submit electronic comments in the following way: Federal 
eRulemaking Portal: https://www.regulations.gov. Follow the instructions 
for submitting comments. To ensure timely processing of comments, the 
Commission is no longer accepting comments submitted by electronic mail 
(e-mail) except through https://www.regulations.gov.

Written Submissions

    Submit written submissions in the following way: Mail/Hand 
delivery/Courier (for paper, disk, or CD-ROM submissions), preferably 
in five copies, to: Office of the Secretary, Consumer Product Safety 
Commission, Room 502, 4330 East West Highway, Bethesda, MD 20814; 
telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number for this proposed rulemaking. All comments received 
may be posted without change, including any personal identifiers, 
contact information, or other personal information provided, to https://www.regulations.gov. Do not submit confidential business information, 
trade secret information, or other sensitive or protected information 
electronically. Such information should be submitted in writing.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jonathan D. Midgett, Office of Hazard 
Identification, Consumer Product Safety Commission, 4330 East West 
Highway, Bethesda, Maryland 20814; telephone

[[Page 20534]]

(301) 504-7692, e-mail jmidgett@cpsc.gov.

SUPPLEMENTARY INFORMATION:

I. 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.'' For example, 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. On August 14, 
2011, the limit shall be reduced to 100 ppm, unless the Commission 
determines that it is not technologically feasible to move to this 
lower limit for a particular product or product category. As another 
example, 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; and
     The Age Determination Guidelines issued by the Commission 
staff in September 2002 and any successor to such guidelines.
    The proposed interpretative rule would create a new Sec.  1500.92, 
``Definition of Children's Product.'' \1\ The proposal would discuss 
the statutory definition and accompanying factors to provide guidance 
on how manufacturers can evaluate consumer products to determine 
whether such products are children's products. The additional guidance 
will provide a better understanding by manufacturers and the public of 
our approach to evaluating children's products.
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    \1\ The Commission voted 5-0 to publish this proposed 
interpretative rule, with changes, in the Federal Register. Chairman 
Inez M. Tenenbaum, and Commissioners Thomas H. Moore, Nancy Nord, 
Robert Adler, and Anne Northup voted to publish the notice with 
changes. Chairman Tenenbaum issued a statement, and the statement 
can be found at https://www.cpsc.gov/PR/tenenbaum03312010.pdf. 
Commissioner Northup also issued a statement, and the statement can 
be found at https://www.cpsc.gov/pr/northup03312010.pdf.
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II. Description of the Proposed Interpretative Rule

A. Designed or Intended ``Primarily'' for Children

    Section 3(a)(2) of the CPSA defines a ``children's product'' as ``a 
consumer product designed or intended primarily for children 12 years 
of age or younger.'' We interpret 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 as further described in the discussion and 
examples provided in this interpretative rule. Because each of those 
four factors incorporates the concept of ``use'' by the child in some 
manner, we further interpret the term ``for use'' by children 12 years 
or younger to generally mean that children will physically interact 
with such products based on the reasonably foreseeable use and misuse 
of such product.
    In contrast, products intended for general use, are products that 
are not designed or intended primarily for use by children 12 years old 
or younger. General use products are those consumer products mainly for 
consumers older than 12 years of age. 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 Commission has given examples of what it considers to be 
general use products. For example, most pens, or other office supplies, 
are not considered children's products because they are mainly used by 
the general public. The fact that pens or other office supplies may 
also be used by children does not convert them into children's 
products. However, when a general use product, such as a pen, is 
decorated or embellished by adding certain features that may appeal to 
children, such as childish themes or play value, the general use 
product may be converted or transformed into a children's product due 
to these additional features or characteristics. A further evaluation 
would be made regarding whether, in fact, a child would be likely to 
physically interact with such a pen, and how such interactions would 
occur, including the reasonably foreseeable use and misuse of the 
product by the child. If a child is unlikely to interact with the pen 
because the theme would not be of interest, or if an older child or 
adult is as likely, or more likely to interact with the pen than a 
child, such a pen 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.
    Where a product such as a backpack or certain recreational 
equipment may be just as appealing for a child older than 12, or if 
consumers older than 12 years of age are as likely or more likely to 
use the product, those products may not be considered children's 
products. Although these products can be used by children under the age 
of 12, the long-term use of these products would extend to consumers 
older than 12 years of age. However, other products used by 12-year-
olds (e.g., child-themed lunchboxes) have a declining appeal for 
teenagers. Where a product's appeal lessens as a child moves past the 
age of 12, it is likely that the product may be considered as designed 
or intended primarily for children 12 years of age or younger.
    Other products are specifically not intended for use by children 12 
years of age or younger. These products, such as cigarette lighters, 
candles, and fireworks, which 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, we have indicated that 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.
    In evaluating whether a particular product is designed or intended 
primarily for a child, the CPSC staff makes an age determination for 
the product which considers all of the facets of a product and the 
following statutory factors.

B. Factors Considered (Proposed Sec.  1500.92(a) Through 1500.92(d))

1. Manufacturer's Statement
    Section 3(a)(2)(A) of the CPSA lists a statement by a manufacturer 
about the product's intended use, ``including a label on such product 
if such statement

[[Page 20535]]

is reasonable,'' as a factor to be considered in determining whether a 
product is primarily intended for a child 12 years of age or younger. 
15 U.S.C. 2052(a)(2)(A). 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. Such a 
label may recommend 10 years old as the earliest age for a prospective 
user, not necessarily the age for which the product is primarily 
intended.
    A manufacturer's statement about a product's intended use, 
including the product's label, should be reasonably consistent with the 
expected use patterns for a product. The Commission will examine the 
labeling to determine whether a product is appropriately age graded 
consistent with the foreseeable uses and abuses of that product. The 
Commission has never considered a manufacturer's label with regard to 
age to be determinative where the stated age does not take into account 
the foreseeable use and abuse of a product attractive to children. The 
manufacturer's label, in and of itself, is not considered to be 
determinative. We discuss common use patterns in further detail under 
part I.B.3 of this preamble below.
2. Product Presentation
    Another factor, at section 3(a)(2)(B) of the CPSA, is whether the 
product is represented in its packaging, display, promotion, or 
advertising as appropriate for use by children 12 years of age or 
younger. 15 U.S.C. 2052(a)(2)(B). These representations can be express 
(such as product advertising declaring that the product is for use by 
children 12 years of age or younger) or implied (such as product 
advertising showing the product being used by young children). These 
representations may be found in packaging, text, illustrations and/or 
photographs depicting consumers using the product, instructions, 
assembly manuals, or advertising media used to market the product. The 
prominence, conspicuousness, and or other emphasis given to each 
portrayal of a product's uses or intended users on packaging or in 
advertising media can be weighted differently according to which images 
or messages are the strongest and most obvious to the consumer at the 
point of purchase. For example, labeling in large, high contrast 
letters on the front of a package sends a stronger message than block 
letters in a small box on the package's side panel.
    Besides labeling and illustrations, a product's physical location 
in a retail outlet or visual associations in the pages of an online 
distributor's Web site could imply its suitability for a certain age 
group. The close association of a product in a store or on a Web site 
with other products that are clearly intended for children 12 years of 
age or younger could affect consumer perceptions of the intended age 
group for that product. However, the retail location of a product may 
not be dispositive of a children's product determination. For example, 
if an electronic media device, such as a video game console, were sold 
at toy stores, but were also sold in electronics stores or department 
stores and marketed to consumers older than 12 years of age, then that 
video game console likely would be considered a general use product 
rather than a children's product. The Commission recognizes that 
manufacturers need some certainty about whether their products are 
children's products long before they reach store shelves, as tracking 
labels must be applied and third-party testing must occur much earlier 
in the chain of commerce. The Commission generally evaluates products 
based on the entire domestic market as opposed to conducting a shelf-
by-shelf or store-by-store analysis. As a result, for instance, 
inclusion in a catalogue focused exclusively on furnishings for babies 
and toddlers does not necessarily convert a product that may have more 
general appeal, such as a plain light blue, yellow, or ivory rug, into 
a children's product.
    Manufacturers may also include a general use item as one of several 
items packaged together, such as a paper clip included in a magnet set 
primarily intended for children ages 7 through 10 years old. The paper 
clip may be a general use item but when included as part of the magnet 
set, it would need to be tested to the applicable children's product 
safety rules since the product is targeted primarily to children 12 
years of age or younger.
    Sometimes a product commonly recognized as primarily intended for 
children is packaged with an adult product complicating the 
determination of the intended recipient. Take, for example, a stuffed 
animal packaged with a candle as a sentimental gift for Valentine's Day 
or some other holiday. The candle is not a children's product and need 
not comply with the requirements for children's products. The stuffed 
animal, on the other hand, is likely to be considered a children's 
product even though it has been combined in a promotion with a general 
use or adult product. The stuffed animal must meet all the applicable 
children's safety rules for the stuffed animal (i.e., small parts and 
sharp edges under 16 CFR 1500.49 through 1500.53, the lead content or 
lead paint limits under section 101 of the CPSIA and 16 CFR part 1303). 
The manufacturer should expect that an adult will use the candle but 
likely might give the stuffed animal to a child. In other words, a 
children's product that is packaged with a general use product is 
likely to remain a children's product.
3. Commonly Recognized by Consumers
    Another factor, at section 3(a)(2)(C) of the CPSA, in determining 
whether a consumer product is designed or intended primarily for a 
child 12 years of age or younger is whether the product is commonly 
recognized by consumers as being intended for use by a child 12 years 
of age or younger. 15 U.S.C. 2052(a)(2)(C). For example, traditional 
board and table games like chess, checkers, backgammon, playing cards, 
or Chinese checkers are commonly recognized as equally attractive to 
children and adults because the level of difficulty increases or 
decreases depending on the player's skill. Versions of these games, and 
similar games commonly considered by consumers to appeal to a general 
audience, are not considered children's products. However, if a 
manufacturer adds marketing portrayals or other features to the game or 
its packaging that make it more attractive to or suitable for children 
than a general use product would normally be, then the game could be 
considered a children's product. Specifically, where a product such as 
a board game exists in junior and regular versions, the junior version 
likely would be considered a children's product and the regular version 
likely would be considered a general use product.
    To assess whether a product is commonly recognized by consumers as 
being primarily intended for a child, a manufacturer should evaluate 
the reasonably foreseeable uses and misuses of a product to determine 
how the product will be perceived and used by consumers of that 
product. Manufacturers could also refer to sales data, market analyses, 
focus groups, or other marketing studies for their analyses of consumer 
perceptions of their products as described further below.

[[Page 20536]]

(i). Features and Characteristics of Children's Products
    A consumer product will commonly be recognized by consumers as 
being intended for use by a child 12 years of age or younger based on 
certain product features or characteristics. Certain childish features 
or characteristics of children's products can be defined generally, 
although there may be exceptions. Features that distinguish children's 
products from adult products include, but are not limited to, such 
factors 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);
     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
     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).
    The more of these types of characteristics that a product has, the 
greater the likelihood that the product is a children's product. For 
example, a pen which is decorated or whose advertising and marketing 
features themes that correspond to obvious children's interests, e.g., 
preschool characters, will greatly influence the purchase for preschool 
children.
    However, there also are ``novelty'' pens that could appeal to 
children 12 years of age or younger as well as older children and 
adults; such novelty pens would not be considered to be primarily 
intended for children. For example, a simple ball point stick pen 
bearing an elementary school's name, without any other decorations, 
would likely appeal to anyone (i.e. students, teachers, parents) 
connected with the school. A pen with a silly head on the top, not 
associated with any particular mass media (and not sold in toy stores), 
may have just as much appeal to adults as it would to children. Pens 
with puzzle features that allow the user to take them apart and 
reconfigure the design also are likely to appeal to children and adults 
alike, and thus, are not likely to be considered children's products 
because they are not primarily intended for children.
(ii). Principal Perceived Uses
    When making a determination about the intended age of a product's 
users, an evaluation of the product's reasonably foreseeable uses and 
misuses should take into account the possible actions that a product 
makes available. In essence, this is an analysis of what uses a 
consumer perceives a subject product affords, even if what the product 
does is unintended. For example, the principal use of a screwdriver is 
turning screws, but it may also be used to stir paint. The principal 
use for a broom is floor cleaning, but a broom may also be used as an 
imaginary knight's lance, a horse, a magical flying vehicle, or another 
role-playing prop. However, in the age determination analysis, the 
principal uses take precedence over other actions that are less likely 
to be performed with a product, so even though a product could present 
some uses that appeal to children, like the broom being used as an 
imagined magical flying vehicle, that fact does not necessarily mean 
that the broom is a children's product. The individual features of a 
product may be weighted in the analysis with more obvious uses given a 
greater weight than less obvious uses.
(iii). Cost Considerations
    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.
(iv). Children's Interaction With the Product
    In making an age determination, the foreseeable use or misuse of 
the product by a child must be evaluated. Most products intended for 
children will involve the child having physical interaction with the 
product. There are a few products that are intended for use in a 
child's environment, but such products are not for use by a child. 
These products are unlikely to be handled by children and children do 
not physically interact with such products. Such products may include a 
nursery-themed lamp or clock, or nursery decorations that are 
manufactured for placement in an infant's room but are not operated or 
handled by children, because such infants lack the motor skills or 
physical capacity to interact with such items. These types of products 
are considered to be home furnishings or decorations primarily intended 
for use by adults, rather than products intended for use by children.
    Home furnishings or fixtures that are embellished with features or 
characteristics that incorporate elements of play value (a toy train on 
a lamp) for an older child, would be evaluated to ascertain the 
appropriate age group for which the product was intended given the 
product's design, marketing and advertising, the child's physical 
interaction, if any, with the product, and consideration of any other 
factors which may be relevant to the age grading determination.
    Other products that are intended for use by adults with children, 
such as diaper bags, diaper pails, wipe warmers, bottle warmers, and 
baby monitors would not be considered children's products because such 
products are primarily designed and intended for use by the adult or 
caregiver.
4. The Age Determination Guidelines (2002)
    The final statutory factor, at section 3(a)(2)(D) of the CPSA, is 
the Age Determination Guidelines (``Guidelines'') issued by the CPSC 
staff in 2002. 15 U.S.C. 2052(a)(2)(D). The Guidelines help answer 
questions regarding children's interactions with consumer products. The 
Guidelines can be downloaded in a searchable file format on the CPSC 
Web site at this link: https://www.cpsc.gov/businfo/corrective.html.
    The Guidelines address questions such as, ``Does the subject 
product appeal to children?'' and ``Can a child properly use the 
subject product?'' The Guidelines describe the capabilities and skills 
that children of various age groups can be reasonably expected to use 
in interactions with consumer products. We consider those actions that 
children of certain ages can successfully perform when making 
determinations about the appropriate user groups for products even if 
the specific product or type of product is not specifically mentioned 
by the Guidelines.

[[Page 20537]]

i. Appeal of the Product for Different Age Groups
    When making an age determination for a given product's intended 
user group, the Guidelines provide information about the primary goals 
of play that are seen for different ages throughout childhood. For 
example, toddlers consistently want to mouth objects because mouthing 
is a primary strategy for exploration of any object at that age. Early 
childhood entails lots of exploration and discovery. High levels of 
detail in their toys are not necessary, and toddlers like bright 
colors. However, during middle childhood, children become very 
interested in role-playing, and they desire increasingly more realistic 
props during their playtime, and more realistic colors become 
important. After a certain age, children do not consider the 
simplistic, brightly colored toys intended for toddlers to be intended 
for them and may find them very unappealing or even insulting. Nine to 
12 year old children are interested in developing new motor skills and 
exercising their increasingly complex problem solving abilities. They 
consistently want to learn and practice new skills to approximate adult 
performances in activities like playing sports, working with hand tools 
and simple machines, and solving complex puzzles. During this age 
range, children progress from concrete to abstract thinking. Their 
consumer behaviors are more heavily influenced than younger children by 
peers and popular mass media celebrities and events. The factors that 
make various objects appealing to children of different ages are 
discussed at length in the Guidelines.
ii. Capabilities of Various Age Groups
    Whether or not a product appeals to a child is just one 
consideration because the child also needs to be able to manipulate and 
operate a product in the manner that takes advantage of most, if not 
all, of that product's features to be appropriate for a child that age. 
The physical, social and cognitive milestones that contribute to a 
child's ability to play with various types of products are described in 
detail in the Guidelines to help match a product with the user group of 
the proper age. For example, a magnifying glass is very attractive to a 
toddler because it is novel, visually intriguing, and has an easily 
grasped handle with easily mouthed edges, but toddlers are usually 
unable to position a magnifying glass in the proper manner to magnify 
objects to their eyes. A toddler's hand-eye coordination and his or her 
visual attention are usually not developed enough for a toddler to find 
the focal point needed to see something magnified in the glass. Despite 
this, a toddler might want to hold and mouth a magnifying glass. This 
appeal does not make the magnifying glass appropriate for toddlers. 
Magnifying glasses are suitable for older children and individuals 
older than 12 years of age who have the necessary hand-eye coordination 
to use the product for magnification without the risk of breaking it. 
Because a magnifying glass is generally marketed to the adult 
population, it would not be considered a children's product.

III. Examples (Proposed Sec.  1500.92(d)(1) through (d)(9))

    To help manufacturers and other interested parties understand the 
concepts discussed above (in part II of this document) for evaluating 
what is a children's product under the CPSA, we provide the following 
additional examples.

(A) Furnishings and Fixtures

    General home furnishings and fixtures, such as rocking chairs, 
shelving units, televisions, digital music players, ceiling fans, 
humidifiers, air purifiers, window curtains, tissue boxes, clothing 
hooks and racks, often are found in children's rooms or schools. The 
Commission will generally consider such furnishings and fixtures to be 
intended for adult use even if they happen to be used in a children's 
room or classroom, as they would be considered general use products. A 
humidifier may be used in a children'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. Similarly, a hook used to hang coats 
is a general use item, even if a child's coat is occasionally hung on 
the hook at home or at school. However, if a manufacturer attaches the 
hook to a children's product, such as a child-sized desk, or 
embellishes the hook with a child's theme (thereby making it clear that 
the hook is intended to be used primarily by a child), then that hook 
would be considered a children's product.
    Some home or school furnishings, such as infant tubs, bath seats, 
small beanbag chairs with childish decorations, bunk beds with 
children's themes, child-sized desks, and child-sized chairs, are 
primarily intended for use by children 12 years of age or younger and 
would need to comply with all applicable children's product safety 
rules.
    Other products may have a childish theme incorporated into the 
product. For example, a lamp featuring a fire station that has posable 
figurines of firefighters has play value and would likely be considered 
a children's product. If a lamp has no features that add play value, or 
any other features that would invite physical interaction with the lamp 
beyond turning the lamp on or off, it would likely be considered a 
general use product, since it would be indistinguishable from a lamp 
for consumers older than 12 years of age. 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.

(B) Collectibles

    Certain products that were originally intended for children may 
become collector's items and find an adult market. However, many 
collectibles are interesting to children, and children 12 years of age 
or younger often have collections. Adult collectibles are intended 
solely for use by adults as display items and are often labeled in such 
a manner that conveys this intention. They may be (but are not always) 
distinguishable from collectibles intended for children by themes that 
are inappropriate for children 12 years of age or younger. Adult 
collectibles also have features that preclude use by children during 
play, such as high costs, limited production, and display features like 
hooks or pedestals, and are not marketed alongside children's products. 
For example, collectible plush bears have highly detailed and fragile 
accessories, display cases, platforms to pose and hold the bear, and 
very high costs. Plush bears intended for children are more affordable 
and have more simple accessories that children can handle without 
damaging the product or the accessory.

(C) Jewelry

    Jewelry intended for children is sized, themed, and marketed to 
children. Many features of adult jewelry may be attractive to children 
12 years old or younger, but potential attractiveness to children, 
alone, does not make a piece of jewelry into a product intended for 
children. One or more of the following characteristics of jewelry could 
cause an item to be considered primarily a children's product:
     Size;

[[Page 20538]]

     Cost--it would be unusual for an adult to wear jewelry 
that is available at very low cost;
     Marketing in conjunction with other children's products, 
such as a child's dress, children's book, or toy;
     Play value;
     Sale at an entertainment or educational event (such as a 
circus) attended primarily by children;
     Use of childish themes, such as animals, vehicles, or 
toys;
     Sale at a store containing 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. These aspects include:
     Marketing, advertising, and promotional materials;
     Packaging graphics and text;
     Size;
     Dexterity requirements for wearing;
     Appearance (coloring, textures, materials, design themes, 
licensing, level of realism); and
     Cost.
    These aspects or characteristics will help inform jewelry 
manufacturers and consumers whether a particular piece of jewelry is 
designed or intended primarily for children 12 years of age or younger, 
or whether it more frequently appeals to consumers older than 12 years 
of age.

(D) DVDs, Video Games, and Computers

    Most computer products and electronic media devices, such as CDs, 
DVDs, and DVD players, are considered general use products. However, 
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. CPSC staff may consider ratings given by entertainment 
industries and software rating systems when making an age 
determination. However, we 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. These types of DVDs or CDs would not 
be considered children's products because they are not used ``by'' 
children and children do not physically interact with such products. 
However, DVDs and CDs 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.
    Video game consoles also are considered general use products 
because a significant portion of the market for such items consists of 
teenagers and young adults. However, handheld video games with software 
intended for children 12 years of age or younger would fall within the 
scope of a children's product if the products are produced without 
software available that is appealing to older children and adults. Such 
products would be more likely to be perceived as intended for children 
12 years of age or younger. Also, the controllers for certain console 
games or other accessories of electronic equipment that are sized for 
or otherwise intended for only children's games could be a children's 
product because of their size (or other childish features), even though 
the game console could be a general use product. Likewise, keyboards, 
computer input devices, and other peripherals that are sized, 
decorated, or otherwise marketed for children 12 years of age or 
younger would be considered children's products, even though the 
computer itself is a general use item.

(E) 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 would likely be considered products intended for general use. 
The marketing and labeling of raw materials (such as modeling clay and 
paint) may often be given high priority in an age determination for 
these art materials because the appeal and utility of these raw 
materials has such a wide audience.

(F) 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. Librarians, education professionals, and 
publishers commonly make determinations regarding the expected 
audiences for books based on vocabulary, grammar, themes, and content. 
Some children's books have a wide appeal to the general public, and, in 
those instances, further analysis may be required to assess who the 
primary intended audience is based on consideration of relevant 
additional factors such as product design, packaging, marketing and 
sales data.

(G) 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 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. This 
equipment is intended by the manufacturer for use primarily by adults, 
although there may be incidental use by children through such programs. 
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.

(H) Sporting Goods and Recreational Equipment

    Sporting goods that are primarily intended for consumers older than 
12 years of age are considered general use items. 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. 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 child consumers.
    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. 
For example, scooters have been made for children and for adults. 
Children's scooters are distinguished by shorter handlebar heights and 
have lower maximum weight limits than adult scooters. Children's 
scooters also may have childish decorations with themes that appeal to 
children.
    Wading pools are primarily intended for children and can be 
distinguished from general use pools by their depth. Children's pools 
are shallow and have extra play features that promote playful 
interactions beyond the primary use of holding water for a bather.
    Aquatic products primarily intended for children can be 
distinguished from general use recreational equipment for deep water, 
such as towables and rafting equipment, by design, cost and intended 
use. Children's aquatic products are

[[Page 20539]]

relatively low cost, small items intended for individual use and 
generally are decorated with childish themes and colors. Recreational 
equipment, such as towables and rafting equipment, have durable 
materials and high-capacity, weight-bearing capabilities.

(I) Musical Instruments

    Musical instruments suited for an adult musician as well as a child 
are general use products. Instruments primarily intended for children 
can be distinguished from adult instruments by their size and marketing 
themes. 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, 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. In general, instruments that are specifically sized 
for children and/or have childish themes or decorations intended to 
attract children are considered children's products.

IV. Request for Comments and Effective Date

    We are providing a sixty (60) day opportunity for public comment, 
although we recognize that, as an interpretative rule, the proposal is 
exempt from the notice and comment provisions of the Administrative 
Procedure Act (15 U.S.C. 553). We believe it is important to invite 
comment from interested parties before issuing a final interpretative 
rule. The Commission also seeks comments on how manufacturers generally 
determine the age of the consumers for whom their products are 
primarily intended. In addition, comments are sought on what other 
criteria, if any, should be considered in determining whether a 
consumer product is a children's product. Because this is an 
interpretative rule, a delayed effective date is not required by the 
Administrative Procedure Act (5 U.S.C. 553(d)). Therefore, any final 
rule based on this proposal would become effective upon publication of 
a final interpretative rule in the Federal Register.

List of Subjects in 16 CFR Part 1500

    Consumer protection, Hazardous materials, Hazardous substances, 
Imports, Infants and children, Labeling, Law enforcement, and Toys.

V. Conclusion

    For the reasons stated above, the Commission proposes to amend 
Chapter II of Title 16 of the Code of Federal Regulations as follows:

PART 1500--HAZARDOUS SUBSTANCES AND ARTICLES: ADMINISTRATION AND 
ENFORCEMENT REGULATIONS

    1. The authority citation for part 1500 continues to read as 
follows:

    Authority:  15 U.S.C. 1261-1278, 122 Stat. 3016.
    2. Add a new Sec.  1500.92 to read as follows:


Sec.  1500.92  Definition of children's product.

    (a) Definition of ``children's product''--Under section 3(a)(2) of 
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 a children's product is determined by considering 
the four specified statutory factors. The examples discussed herein may 
also be illustrative in making such determinations. 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 and misuse of such product.
    (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 mainly for 
consumers older than age 12. Some products may be designed or intended 
for consumers of all ages, including children 12 years old or younger, 
but are intended mainly for consumers older than 12 years of age. 
Examples of general use products may include products that a child 
would not be likely to interact with, or products that consumers older 
than 12 would be as likely, or more likely to interact with. Products 
used by children 12 years of age or younger that have a declining 
appeal for teenagers are likely to be considered children's products.
    (2) Other products are specifically not intended for use by 
children 12 years of age or younger. These products, such as cigarette 
lighters, candles, and fireworks, which 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 
following 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. 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.
    (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 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. Advertising 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

[[Page 20540]]

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 generally evaluates products based 
on the entire domestic market as opposed to a shelf-by-shelf or store-
by-store analysis.
    (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 its reasonably 
foreseeable use and misuse, 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 
year 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--just because an item could be 
used as a children's product, such as when a child pretends that a 
broom is a horse, does not mean the item should be regulated as a 
children's product where the 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 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 
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, 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, have play value, and/or are sized for a child. 
Examples of home or school furnishings that are primarily intended for 
use by children and considered children's products include infant tubs, 
bath seats, small bean bag chairs with childish decorations, bunk 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 distinguishable 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, display features 
(such as hooks or pedestals), and are not marketed alongside children's 
products. For example, collectible plush bears have high cost, are 
highly detailed, with fragile accessories, display cases, 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.
    (3) Jewelry--
    (i) Jewelry intended for children is generally sized, themed, and 
marketed to children. One or more of the following characteristics of 
jewelry may cause a piece of jewelry to be considered primarily 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.
    (ii) 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: marketing; advertising; 
promotional materials; packaging graphics and text; size; dexterity 
requirements for wearing; appearance (coloring, textures, materials, 
design themes, licensing, 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, or whether it more frequently 
appeals to consumers older than 12 years of age.
    (4) DVDs, video games, and computers--Most computer products and 
electronic media devices, such as CDs, DVDs, and DVD players, are 
considered general use products. However, 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. CPSC staff may 
consider ratings given by entertainment industries and software rating 
systems when making an age determination. However, we 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. These 
types of DVDs or CDs would not be considered children's products 
because they are not used ``by'' children and children do not 
physically interact with such products. However, DVDs and CDs and other 
digital media

[[Page 20541]]

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.
    (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. The marketing and labeling of raw materials (such as modeling 
clay, paint and paint brushes) may often be given high priority in an 
age determination for these art materials because the appeal and 
utility of these raw materials has such a wide audience.
    (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 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. This equipment is intended by the 
manufacturer for use primarily by adults, although there may be 
incidental use by children through such programs. 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.
    (8) Sporting goods and recreational equipment--Sporting goods that 
are primarily intended for consumers older than 12 years of age are 
considered general use items. 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. 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 child consumers. 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 suited for an adult 
musician as well as a child are general use products. Instruments 
primarily intended for children can be distinguished from adult 
instruments by their size and marketing themes. 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, 
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. In general, instruments that are specifically sized for 
children and/or have childish themes or decorations intended to attract 
children are considered children's products.

    Dated: April 7, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-8431 Filed 4-19-10; 8:45 am]
BILLING CODE 6355-01-P