Interpretation of “Children's Product”, 63067-63080 [2010-25645]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 75, Number 198 (Thursday, October 14, 2010)]
[Rules and Regulations]
[Pages 63067-63080]
From the Federal Register Online via the Government Printing 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: https://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 jmidgett@cpsc.gov.

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, https://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, https://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 in