June 12, 2009

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By Product Safety Letter staff

Does a cartoon character make a product so attractive to children under age 12 that the item must be considered a child’s product and thus be subject to the CPSIA? Not always: price points and marketing can matter too.

In a June 4 letter addressing whether ballpoint pens are subject to CPSIA Section 101 lead provisions, CPSC General Counsel Cheryl Falvey explained that the mere application of a cartoon character to an item does not necessarily trigger the CPSIA, at least for Section 101. She explained (our emphasis):

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The majority of “novelty pens” are not considered to be primarily intended for children. Even if a pen were colorful, decorated or embellished, such colors, decorations or embellishments, alone, might not result in a “children’s product.” For example, a simple ball point stick pen with the name of an elementary school embossed on it without any other decorations would appeal to anyone (i.e. students, teachers, parents) connected with the school. Even a pen with a cartoon character may have mass appeal and not be intened primarily for children if its price point and marketing suggest that it is intended for both adults and children. Pens marketed to executive with puzzle features that allow the user to take it apart and reconfigure the design are also likely to appeal to adults and children alike. Pens that are as likely to be used by adults as by children do no fall within the scope of section 101(a) of the CPSIA because the pens are not marketed to, and used primarily by children, and therefore do not require testing and certification for lead content. Moreover, just because an ordinary ball point pen might be marketed once a year as a back to school item does not convert that pen from a general purpose item to a children product under the CPSIA.

Falvey’s explanation harkens back to a meeting that CPSCers had a few months ago with representatives of the promotional product industry. According to the April 6 edition of our premium sister service Product Safety Letter:

Who bears the responsibility for determining if a product is a child’s product if an item receives a decoration or similar alteration that makes a clearly non-children’s product appear to be something that some people would argue could be intended for children? That is one of the dilemmas facing the promotional product industry.

Visitors to CPSC March 31 from the Promotional Products Association International (PPAI) pointed to two examples of coffee cups that began as identical white mugs – one bore a FedEx logo, while the other bore a picture of a rubber ducky. Some might argue the latter could be a children’s product, but what if the ducky is part of an advertising campaign and the target audience is adults?

The problem faced by the industry, explained PPAI President and CEO Steve Slagle, is that there are multiple players in the promotional product business: manufacturers, suppliers, distributors, and end buyers, the latter being the company or organization that gives the items to consumers. Where and when the decision is made that an item is a children’s product and thus subject to certain CPSIA requirements can become tricky, especially because some participants, such as the line workers charged with filling often-small-run orders, might not have the regulatory and legal sophistication to make such determinations.

It is possible that a supplier could purchase millions of blanks – such as the white coffee mugs – and believe in good faith that they do not require testing and certification. The industry deals with hundreds of thousands of products that begin as similar blanks. The possibility that a blank could be transformed into a seeming children’s product raises the question of whether all blanks – whether originally children’s products or not – would require testing and certification. Requiring manufacturers to do that would mean that the industry would “incur exorbitant and crippling price increases,” the PPAI estimated.

Similarly, explained Slagle, while the industry recognizes that some promotional items are toys and clearly subject to relevant CPSIA rules, it might not be so clear with other items. Certain toy-like items – “executive toys” – are designed to sit on a person’s desk and display a promotional message such as a company’s contact information. Also of concern is an end buyer using an item as part of a promotional campaign aimed at children, but without that being known or even discernable by the supplier. Certainly, that is knowable in some cases – for example, the item bears a message like “second grade reading contest” – but not always.

Small items also pose a problem related to tracking labels – not only is there limited space, the tracking labels compete for that space with the promotional message and in some cases could undermine the message’s effectiveness.

The PPAI asked CPSC to make four clarifications:

• Items are not children’s products if they are not such in blank form, if a majority of orders do not create seeming kids’ products, and if they are not marketed to children.
• Suppliers do not need people professionally trained in age grading to monitor every order to separate occasional orders in which blanks are converted to children’s items.
• Items not designed or intended for children 12 and under, but with characteristics that could be attractive to them (“executive toys”), are not children’s products.
• Suppliers can consider whether a tracking label is practicable under the CPSIA if it interferes with the promotional message.

Portions of this article appeared in the April 6, 2009 edition of our premium sister service, Product Safety Letter. It is just one of the hundreds of similar stories that subscribers read over the course of an annual subscription. Subscription information is here