June 17, 2009

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By Eric L. Stone

In a letter from the General Counsel of the Consumer Product Safety Commission (CPSC) dated June 4, 2009, CPSC helps those who have been struggling to understand how the agency interprets the “children’s product” definition in the Consumer Product Safety Improvement Act of 2008 (Public Law 110-314, 122 Stat. 3016, August 14, 2008) (CPSIA). According to the CPSC, mere marketing to children does not convert a pen into a children’s product, nor do novelty features necessarily do so.

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Section 3(a)(2) of the Consumer Product Safety Act as amended by the CPSIA, 15 U.S.C. § 2052(a)(2), defines a “children’s product” as “a consumer product designed or intended primarily for children 12 years of age or younger.” [Emphasis added.] In that section, Congress provided that

“[i]n determining whether a consumer product is primarily intended for a child 12 years of age or younger, the following factors shall be considered:

(A) A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.

(B) Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.

(C) Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.

(D) The Age Determination Guidelines issued by the Commission staff in September 2002, and any successor to such guidelines.

In interpreting this definition, it is useful to start with the meaning of the word “primarily.” Webster’s dictionary tells us that “primarily” means “principally,” “chiefly,” or “for the most part.” The Congress, therefore, wanted the CPSC to regulate only items that were “chiefly” or “for the most part” intended for children. That reading focuses the definition on items like toys, cribs and other durable nursery items, pacifiers, teethers, and the many other items that are mostly used by children, and are traditionally viewed in the marketplace as children’s items. However, the CPSC sometimes seems to read the four factors provided as though they were independent of the “primarily intended for a child 12 years of age or younger” clause, or reverses the test.[1]

Perhaps because of the CPSC’s apparent ambivalence about the definition, the Writing Instrument Manufacturers Association sought an exclusion from the lead ban for ball point and roller ball pens on the grounds that the small amount of lead found in these pen tips presents no risk. Although it denied the request for an exclusion (by a 1-1 vote), the CPSC chose to address the threshold question of whether pens are “children’s products” subject to the lead ban.

In previous guidance on its web site, the CPSC had suggested that pens were at least partially excluded from the children’s product definition: “to the extent that these pens are general purpose items not being marketed to, or advertised as being intended for use by children 12 years or younger, these pens would not be subject to the lead limits under CPSIA.” This statement appeared to suggest that merely marketing or advertising “general purpose” pens for use by children might bring them within the definition of “children’s product.”

However, in its letter on June 4, the CPSC recharacterized its previous guidance: “The Commission staff has already made clear and, by its approval of this letter, the Commission has confirmed that the vast majority of pens and roller ball pens are not primarily intended for children, whether or not they are sold for use in schools.” The CPSC letter recognized that while pens are used by people of all ages, a “substantial quantity of the products [are] sold to school systems and retailers who market these products to children 12 and younger.” It also argued “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’s product under the CPSIA.”

The CPSC opinion also found that novelty features such as colors, decorations, a school name, a cartoon character, or a puzzle may not convert a “general purpose” pen into a “children’s product.” The CPSC opinion seems to establish a new “test” to distinguish “general purpose” products from “children’s products.” “Pens that are as likely to be used by adults as by children do not 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.” [Emphasis added.]

How broadly should we apply this guidance? Does this opinion create a new “as likely to be used by adults as by children” test that should be applied to all “children’s products” determinations? Or--in the wake of invocations of industry and members of Congress to show some common sense in interpreting the CPSIA--is this opinion very limited in its scope and aimed solely at giving relief for pens that appear to present no risk? In other words, would the CPSC interpretation of the “children’s product” definition have been different if the level of risk was higher and the political climate did not encourage CPSC discretion?

Government agencies are reluctant to limit their authority, so it is perhaps not surprising that the CPSC’s jurisdictional guidance on pens still seems broader than the plain language of the statute. As noted above, the CPSIA’s focus on “primarily” suggests Congress only intended to reach items designed and intended “mostly” or “chiefly” for use by children 12 and under. This suggests that any significant market for the product besides children 12 and under might remove the item from the definition of children’s product.

The CPSC’s “as likely to be used by adults” definition still may encompass more products than necessary under the law. That test appears to require roughly the same probability of use by adults as by children. This “50-50” approach still seems to exceed the bounds of the “designed or intended primarily for children 12 years of age or younger” language of the statute. In addition, the language focusing on adult use was not well considered. A school item oriented largely to school students over 12 does not become primarily intended for use by children 12 and under because of some use by children 12 and under. Adult use is not necessary.

On balance, this decision appears to be a welcome narrowing of CPSC guidance. It provides somewhat more certainty to the determination of whether a product is a children’s product. The CPSC recognizes that merely marketing a more “general use” product to children does not change the essential character of the product into a children’s product. CPSC’s guidance also reflects a realization that merely because an item might be attractive to children does not end the inquiry as to whether it is a children’s product.

It is unclear whether the CPSC will continue to apply this guidance when faced with a product that presents a higher risk from lead. However, if it has any sense of the value of its decisions as precedent for future determinations, the CPSC has taken an important step toward giving meaning to the word “primarily” in the definition of “children’s product.”

Eric Stone is a partner in the Washington, D.C. office of K&L Gates, LLP where he counsels a wide range of clients on compliance with CPSC's laws. From 1977 to 2008 he served as an attorney, then Director of the Legal Division, and finally as Acting Director of the Recalls and Compliance Division in the Office of Compliance and Field Operations at CPSC. He can be reached by e-mail at eric.stone@klgates.com or by phone at 202-778-9014.

[1] In the “CPSC Handbook for Resale Stores and Product Resellers,” CPSC suggests “[p]roducts designed or intended primarily for older children or adults are not subject to the lead limits.” (p. 6) While this may technically be correct, it is certainly not necessary that an item be “primarily” for older children or adults to avoid being “primarily intended” for children.