Interpretation of Children's Products

April 1, 2010

With their Proposed Interpretative Rule, the Consumer Product Safety Commission (CPSC) is attempting to better define what constitutes a children’s product and how to differentiate a children’s product from a general use item.  With some products, such as toys, there is no question that the item is a children’s product.  But there are many other products that are less clearly identifiable.  The differences in regulatory requirements, and associated testing costs, between children’s products and general use items are vast so the CPSC’s attempt at clarification is most welcome.


The Consumer Product Safety Improvement Act of 2008 (CPSIA) includes four factors to consider in determining if an item is a children’s product, something designed or intended primarily for use by children 12 years of age or younger:

·                    Statement by the manufacturer about the intended use of a product (often in the form of an age grade).

·                    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 children are shown using the product, and the age of the children).

·                    Whether the product is commonly recognized by consumers as being intended for use by a child (a plush animal, for example, is commonly recognized as suitable for use by children, even if not age graded or marketed as a children’s product).

·                    CPSC’s Age Determination Guidelines, which includes several factors to consider in determining the suitability of a product to certain age children.


These factors are a good starting point but more detail is needed.  Much focus has been rightly placed on the word “primarily” in the CPSIA definition of a children’s product.  This can be interpreted to mean that, if an item is as likely to be used by an adult as by a child, the item may not be a children’s product but rather a general use item.  CPSC General Counsel’s response to the Writing Instrument Manufacturers Association regarding pens supports this interpretation. 


Based on the new Proposed Interpretative Rule, the phrase “for use” is also being dissected.  “For use” means that the child physically interacts with the product.  So in addition to being intended “primarily” for children, there needs to be physical interaction with the product by the child in order for it to be deemed a children’s product.  This makes sense to me.  A decorative wall hanging, even if intended for use in a nursery, may never be touched by the child and so, under this proposed interpretative rule, would not be considered a children’s product.  It is intended “primarily” for children – an adult is not going to hang it in their bedroom - but is not “for use” by the child.


Principal Affordance is a term that I think we will all become more familiar with as clarification of the definition of children’s product continues.  Essentially what this means is that an evaluation of the product’s reasonably foreseeable uses and misuses should be taken into account – the possible actions that are afforded by the product.  But then one must consider what the principal affordance is – how the user is most likely to use the product.  The CPSC gave an example of a broom.  The principal affordance of a broom is to sweep the floor.  It is foreseeable that a broom may be used (misused) by a child in role playing activities as a knight’s lance, a horse, or a magical flying vehicle.  But the additional uses of the broom do not make it a children’s product. 


It can be challenging to properly classify products with many potential uses, such as a candy dispenser shaped like a car with moving wheels and a slot on the top for coins once candy is gone.  Is it just a candy container?  Also a toy car?  And a children’s bank?  It’s really all three of these items and thus the most obvious appearance and principal affordance of the product must be considered. 


The CPSC document includes a list of challenging product categories:

·                    Furnishings and Fixtures

·                    Collectibles

·                    Jewelry

·                    DVDs, Video Games, and Computers

·                    Art Materials

·                    Books

·                    Science Equipment

·                    Sporting Goods and Recreational Equipment

·                    Musical Instruments


The CPSC document also includes valuable discussion of the various features of product in each of these categories, and examples of children’s products and general use products in each of the categories. 

Overall, the “Proposed Interpretative Rule: Interpretation of Children’s Product” provides useful additional information in helping to classify product.  It may remove some items from the children’s product category with the focus on the child’s interaction with the product, and provides a common sense approach in ensuring safe children’s products.