In its draft Proposed Interpretative Rule: Interpretation of Children’s Product, the Consumer Product Safety Commission (“CPSC”) staff attempts an interesting bit of prestidigitation, converting the word “primarily” into the words “significant proportion” and re-weighting the statutory factors for children’s product determinations. Although many of the examples given by the staff in its interpretation are helpful and fully consistent with the term “primarily,” the effect of the CPSC definitional language and some of the other examples is to stretch the legislative definition of “children’s product” beyond the confines usually imposed by the English language.
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Under the Consumer Product Safety Improvement Act of 2008 (Public Law 110-314, 122 Stat. 3016, August 14, 2008) (“CPSIA”), the definition of “children’s product” is crucial to a series of regulatory requirements including the lead limits, third party testing, and tracking label requirements. Put another way, the scope of that definition affects the obligations and costs of compliance for thousands of products.
Section 3(a)(2) of the Consumer Product Safety Act (“CPSA”) 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. [Emphasis added.]
The CPSC draft takes this congressional language and reinterprets it as follows:
The term “designed or intended primarily” applies to those products designed and commonly recognized as intended for use by a population of consumers constituted by a significant proportion of children 12 years old or younger. Products intended for use by children 12 years or younger applies to those products children will physically interact with based on the reasonably foreseeable use and misuse of such products. [Proposed 16 CFR 1500.92(a), emphasis added.]
In drafting this language, CPSC staff appears to be trying to move the definition of children’s product closer to the “intended for use by children” standard used under the small parts requirements, 16 CFR 1501.2(b), with a heavy emphasis not on the balanced assessment of the factors set forth by Congress but on intent measured primarily by what is “commonly recognized.” However, Congress did not choose to define “children’s products” merely as items “intended for use by children” 12 and under. Although it incorporated the various criteria for age determinations from the small parts ban, including the “commonly recognized” criterion, Congress made a significant addition to its definition of children’s products under the CPSIA: it added the word “primarily.” 2
The plain meaning of the word “primarily” is not “sometimes.” Webster’s dictionary tells us that “primarily” means “principally,” “chiefly,” or “for the most part.” Congress, therefore, instructed the CPSC to regulate only items that were “chiefly” or “for the most part” intended for children. That reading focused 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 articles. In using the word “primarily” Congress distinguished traditional children’s items from general use products that might be used by a “significant” number of children.
As the CPSC knows, courts typically look first to the plain meaning of a legislative provision, and its interpretations have been overturned when they violate that rule. National Resources Defense Council v. U.S. Consumer Product Safety Commission, 597 F. Supp. 2d 370 (S.D.N.Y. Feb. 5, 2009). Yet, in its proposed draft, the CPSC staff seems to use the plain meaning not as the backbone of its guidance, but as a point of departure. The staff redefines the widely understood word “primarily” to “significant proportion.” Similarly, the staff converts the “primarily intended” analysis in the statute, which requires consideration of four statutory factors, to a consideration of one: “commonly recognized.”
Not only does the staff definition fly in the face of the plain language of the statute, but it is inconsistent with the legislative history. Congress understood that mere access or use, even in large numbers, to general purpose products did not mean that those products were “primarily intended” for children. The Report of the House Committee on Energy and Commerce (December 19, 2007) on HR 4040 that created the “primarily intended” language explained that the term drew a distinction between general household and children’s products:
. . .the Committee wishes to exclude common household products that may be used by children but are not intended primarily for children and would not reasonably be considered children’s products. Examples would include door knobs, metal bed posts on full-size beds, and metal clothes hangers. H. Rep. 110-501.
The CPSC staff’s reinterpretation of the meaning of the word “primarily” may have been intended to give the agency broader authority to address lead, or other issues, in products that might be used by some children. However, it appears that Congress chose not to regulate general purpose products even if children might interact with them “significantly.”
The staff’s words “significant proportion” create a vague standard. The term “significant proportion” is not defined and clearly could be broader than “mostly” or “chiefly.” This suggests that even if a fairly small proportion of the users of a product are children 12 and under, the product might be viewed by the staff as “primarily intended” for use by children. In other words, even a product that is primarily intended for use by adults could be a “children’s product” under the CPSC staff’s draft language based on the labeling, marketing, and “commonly recognized” factors.
Despite the staff’s attempt to harmonize this novel interpretation with the CPSC’s “pen letter” of June 4, 2009, this new interpretation is a departure from the standard used by the Commission in that opinion. In the pen letter, the CPSC General Counsel stated 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.” That opinion proposed a different test: “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.]
As pointed out at the time, even that opinion narrowed the plainly understood meaning of the term “primarily” to an apparent 50-50 test. However, the essence of the opinion was that because something is used by children in “substantial quantity” does not mean it is “primarily intended” for children. As the staff points out in their draft rule, a general purpose product such as pens could be converted into children’s products if they were sized, decorated, and/or marketed in a manner that makes them “primarily” for children 12 and under. But in reality, the staff is applying a “mostly” or “chiefly” standard for “primarily.” This is because their new interpretation of the word “primarily” is inconsistent with their concession that general purpose pens are not children’s products merely because they are marketed in back to school sales or distributed in schools and used in “significant numbers” by younger children even though clearly a “significant proportion” of the users are intended to be children.
The dichotomy between the “significant proportion test” and the examples given in the proposed rule is often significant. If instead of determining whether a product is mostly for children, the staff is making “significant proportion” determinations, who is to say how little attractiveness to children might cause future staffers to decide a general purpose consumer product is really a “children’s product.”
The CPSC’s excessive reliance on what is “commonly recognized as being intended for use by children” to determine intent suggests that they intend that factor to trump the very careful weighing of factors that Congress said “shall be considered.” The CPSC staff’s discussion of stuffed animals on page 9 of the draft illustrates this problem. The CPSC’s analysis of “commonly recognized” seems to favor looking at the attractiveness of a product to a child to the exclusion of the other factors. The staff saw no problem in stating unequivocally that stuffed animals are “primarily intended for children” because they are attractive to children and might be given to children even if they are packaged with razor blades. In the real world, there may not be anyone marketing teddy bears and razors, but there are firms that market teddy bears for Valentine’s Day, Mother’s Day, and Father’s Day, and other adult events with themes and advertising campaigns aimed purely at adults. Apparently, the CPSC staff would override all the marketing and labeling evidence of intent to the contrary because of the attractiveness of the product to children and the possibility that they would be given to children. Is this thumb on the scale approach what Congress meant by “primarily intended for use by children”?
The CPSC staff’s definition is problematic for very practical reasons as well as for the legal reasons discussed. In the real world, adults may be as attracted to some of the same cartoon characters, sporting logos, celebrity likenesses, and designs as children. In the example of a general use product such as a pen, notebook, or other desktop product, or a drinking glass, picture frame, or many other items, if it has a cartoon character, and is seasonally sold in back to school sales will the staff say it is “primarily intended” for use by children, even if it is as widely distributed for use by adults and young adults? Will some staff member decide its attractiveness to children is sufficient to meet the “significant proportion” test even if half or more of the products are sold for the use of people older than 12?
Many other general use items are “attractive to children” and many, such as the doorknobs, hangers, and bedposts Congress meant to exclude, and televisions, video equipment, sound systems, cell phones, and many other household items may receive more day-to-day use from children than a teddy bear sent to a wife on Valentine’s Day. All are “intended for use by children” and a “significant proportion” of their users are likely to be children. All potentially could present risks from regulated chemicals. Yet, Congress meant to exclude such items by adding the word “primarily” to intended and set forth four criteria to be considered in making that determination. Congress intended to regulate as children’s products only items that were intended “mostly,” “chiefly,” or “for the most part” for children, not products that might be used in a “significant proportion” by children.
This draft rule is intended to help industry make calls and provides many examples. However, can a firm safely predict in advance when CPSC staff will decide something is a “children’s product” under the staff’s “commonly recognized” and “significant proportion” approach? If not, do firms need to treat all general use products that might be marketed to, used by, or attractive to children as “children’s products”? Do they have to hire third party testing firms to test everything they make, manufacture everything to comply with the lead content requirements, and label everything with tracking labels?
While the CPSC staff may argue that this is an interpretative rule and firms will have an opportunity to challenge the CPSC’s determinations in future enforcement actions, as a practical matter that leaves most regulated firms with no real remedy. It is nearly impossible for manufacturers, distributors, and retailers to know what should and should not be tested under this standard if their products are not specifically covered by the examples. Although most of the CPSC examples suggest the CPSC is really mostly concerned about traditional children’s products, the overly broad definitional language belies that intent.
Regulated firms rightly fear a situation where the CPSC staff on a case-by-case basis can determine whether items they are importing or selling are sufficiently attractive to children that they meet this “significant proportion” test. Many potential consequences flow from such a staff determination, including possible seizures, recalls, damaging public notices, and finally penalties. Firms have limited ability to challenge the staff determinations because the staff almost never changes its mind. Further, to challenge the staff may be perceived as “bad behavior”, can involve tremendous costs, including the hiring of lawyers and human factors experts, and—in the likely event the staff is not convinced—include the cost of litigation.
Even if a manufacturer ultimately challenges the staff and wins a legal “victory”, such a victory would likely be a pyrrhic one. Victory would probably occur only after the CPSC had destroyed the reputation of the product and the manufacturer through bad publicity. Further, it is possible the staff would target such a “bad” firm for special enforcement treatment by U.S. Customs and the CPSC.
Luckily, the CPSC has time to evaluate and change this staff language even before it issues a proposed interpretative rule. The draft indicates a relatively short comment period and suggests a final rule take immediate effect. Therefore, fixing this draft before issuing it for comment is critical to avoid placing an additional burden on manufacturers and importers. In addition, quick action to repair this detour from the CPSIA definition should prevent the significant enforcement and advisory burden this language creates for the Commission and its staff.
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 This article is not intended to provide legal advice.
2 It also dropped the word “use” that was present in the small parts requirement. Although the “use and interaction language” in the staff draft makes sense from a hazard point of view, it incorporates a concept of use into the interpretation that was not expressly included in the CPSIA definition.
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