Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 63067 

1The 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: http://www.cpsc.gov/pr/ 

statements.html. 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified this rule, when promulgated, 

will not have a significant economic 

impact on a substantial number of small 

entities under the criteria of the 

Regulatory Flexibility Act. The FAA’s 

authority to issue rules regarding 

aviation safety is found in Title 49 of the 

U.S. Code. Subtitle 1, section 106 

discusses the authority of the FAA 

Administrator. Subtitle VII, Aviation 

Programs, describes in more detail the 

scope of the agency’s authority. This 

rulemaking is promulgated under the 

authority described in subtitle VII, part 

A, subpart I, section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This regulation is within the 

scope of that authority as it establishes 

controlled airspace at Greenlee County 

Airport, Clifton/Morenci, AZ. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

■ In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR Part 71.1 of the Federal Aviation 

Administration Order 7400.9U, 

Airspace Designations and Reporting 

Points, dated August 18, 2010, and 

effective September 15, 2010 is 

amended as follows: 

Paragraph 6005 Class E airspace areas 

extending upward from 700 feet or more 

above the surface of the earth. 

* * * * * 

AWP AZ E5 Clifton/Morenci, AZ [New] 

Greenlee County Airport, AZ 

(Lat. 32°57′25′′ N., long. 109°12′40′′ W.) 

That airspace extending from 700 feet above 

the surface within a 6.5-mile radius of 

Greenlee County Airport. 

Issued in Seattle, Washington, on October 

4, 2010. 

John Warner, 

Manager, Operations Support Group, Western 

Service Center. 

[FR Doc. 2010–25835 Filed 10–13–10; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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

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 


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63068 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 

‘‘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 

§ 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 § 1500.92, ‘‘Definition of 

children’s product,’’ is now renumbered 

as § 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’’— 

§ 1200.2(a)(2) (Formerly § 1500.92(a)(1)). 

Proposed § 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 § 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 


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Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 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 § 1500.92(c)(1) (now 

renumbered as § 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’’—§ 1200.2(b)(1) (Formerly 

§ 1500.92(b)(1)). Proposed 

§ 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 


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63070 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 

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—§ 1200.2(b)(2) 

(Formerly § 1500.92(b)(2)). Proposed 

§ 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 thirdparty 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 

§ 1200.2(b)(2), we have finalized this 

section without change. 

4. Factors Considered—§ 1200.2(c) 

(Formerly § 1500.92(c)). Proposed 

§ 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 § 1200.2(c), we have finalized this 

section with a nonsubstantive change. 

5. Manufacturer’s Statement— 

§ 1200.2(c)(1) (Formerly § 1500.92(c)(1)). 

Proposed § 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 § 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—§ 1200.2(c)(2) (Formerly 

§ 1500.92(c)(2)). Proposed 

§ 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 § 1200.2(c)(2), we have finalized this 

section without change. 

7. Express or Implied 

Representations—§ 1200.2(c)(2)(i) 

(Formerly § 1500.92(c)(2)(i)). Proposed 

§ 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 § 1200.2(c)(2)(i), we have finalized 

this section without change. 

8. Product’s Physical Location— 

§ 1200.2 (c)(2)(ii) (Formerly 

§ 1500.92(c)(2)(ii)). Proposed 

§ 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 


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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 § 1200.2(c)(2)(ii), we 

have finalized this section with 

nonsubstantive changes. 

9. Marketing with Other Products— 

§ 1200.2(c)(2)(iii) (Formerly 

§ 1500.92(c)(2)(iii)). Proposed 

§ 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 § 1200.2(c)(2)(iii), we 

have finalized this section without 

change. 

10. Commonly Recognized by 

Consumers—§ 1200.2(c)(3) (Formerly 

§ 1500.92(c)(3)). Proposed 

§ 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 § 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— 

§ 1200.2(c)(3)(i) (Formerly 

§ 1500.92(c)(3)(i)). Proposed 

§ 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 

§ 1200.2(c)(3)(i), we have finalized this 

section without change. 

12. Principal Use of Product— 

§ 1200.2(c)(3)(ii) (Formerly 

§ 1500.92(c)(3)(ii)). Proposed 

§ 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 § 1200.2(c)(3)(ii), and rephrasing the 

provision for clarity, we have finalized 

this section without change. 

13. Cost—§ 1200.2(c)(3)(iii) (Formerly 

§ 1500.92(c)(3)(iii)). Proposed 

§ 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 

§ 1200.2(c)(3)(iii), we have finalized this 

section without change. 

14. Children’s Interactions— 

§ 1200.2(c)(3)(iv) (Formerly 

§ 1500.92(c)(3)(iv)). Proposed 

§ 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 


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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—§ 1200.2(c)(4) (Formerly 

§ 1500.92(c)(4)). Proposed 

§ 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—§ 1200.2(d) (Formerly 

§ 1500.92(d)). Proposed § 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 § 1200.2(d), we have finalized this 

section without change. 

17. Furnishings and Fixtures— 

§ 1200.2(d)(1) (Formerly 

§ 1500.92(d)(1)). Proposed 

§ 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 


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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, http:// 

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—§ 1200.2(d)(2) 

(Formerly § 1500.92(d)(2)). Proposed 

§ 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 § 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, http:// 

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—§ 1200.2(d)(3) (Formerly 

§ 1500.92(d)(3). Proposed 

§ 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, 


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63074 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 

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 § 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—§ 1200.2(d)(4) 

(Formerly § 1500.92(d)(4)). Proposed 

§ 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 


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Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 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—§ 1200.2(d)(5) 

(Formerly § 1500.92(d)(5)). Proposed 

§ 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 childsized 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 

initiative, is adding the words ‘‘art tools’’ 

to the final rule to better describe those 

materials, such as paint brushes, which 

may have a wide audience due to their 

appeal and utility and is adding a fuller 

explanation of distribution strategies 

that might target settings such as 

schools. 

As for classroom science kits, we 

address such products in part B.23 of 

this document and its discussion of 

§ 1200.2(d)(7). 

(Comment 25)—One commenter states 

that duplicative third party testing 

under the CPSIA should not be required 

for products that are covered under the 

Labeling of Hazardous Art Materials Act 

(LHAMA). Accordingly, this commenter 

requests that LHAMA be included as a 

FHSA labeling law in addition to the 

guidance that most art materials are 

general use products. 

(Response 25)—We disagree with the 

comment because we do not believe that 

LHAMA duplicates testing required 

under the CPSIA. LHAMA requires that 

the manufacturer, importer, or 

repackager of art materials have their 

product’s formulation reviewed by a 

toxicologist for its potential to cause 

chronic adverse health effects. A 

conformance statement on the product 

is used to certify that the product has 

been so reviewed. However, the CPSIA 

introduces additional test requirements 

beyond what is required under LHAMA. 

As for the commenter’s request that 

we include LHAMA as a labeling 

requirement under the Federal 

Hazardous Substances Act (FHSA), 

LHAMA does not contain a performance 

standard similar to those in consumer 


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63076 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 

product safety rules but rather requires 

labeling in the form of a conformance 

statement that the product formulation 

has been reviewed by a toxicologist. The 

requirements of LHAMA are similar to 

the labeling requirements of the FHSA, 

of which it is a part. Therefore, third 

party testing to LHAMA is not required. 

An art material designed or intended 

primarily for children 12 years of age or 

younger would have to be tested by a 

third party laboratory to demonstrate 

compliance with CPSIA, but it would 

not require third party testing and 

certification to the LHAMA 

requirements. For the same reasons, no 

general conformity certificate is 

required for general use art materials. 

22. Books—§ 1200.2(d)(6) (Formerly 

§ 1500.92(d)(6)). Proposed 

§ 1500.92(d)(6) would state that the 

content of a book can determine its 

intended audience. The proposed 

interpretative rule would explain that 

children’s books have themes, 

vocabularies, illustrations, and covers 

that match the interests and cognitive 

capabilities of children 12 years of age 

or younger. The proposal also would 

explain that the age guidelines provided 

by librarians, education professionals, 

and publishers may be dispositive for 

determining the intended audience. 

Furthermore, some children’s books 

have a wide appeal to the general 

public, and in those instances, further 

analysis may be necessary to assess who 

the primary intended audience is based 

on consideration of relevant additional 

factors, such as product design, 

packaging, marketing, and sales data. 

(Comment 26)—One commenter asks 

us to clarify whether children’s 

magazines are covered by the CPSIA. 

Another commenter states that sales 

data should not be considered for books 

since adults purchase books for 

children. 

(Response 26)—Children’s magazines 

are evaluated using the same principles 

as those that apply to children’s books 

in the interpretative rule. If intended 

primarily for children 12 years of age or 

younger, magazines must comply with 

the CPSIA requirements for children’s 

products. We only consider sales data to 

be relevant to the extent that it reveals 

where the products are sold, such as in 

a children’s book or toy store. 

23. Science Equipment— 

§ 1200.2(d)(7) (Formerly 

§ 1500.92(d)(7)). Proposed 

§ 1500.92(d)(7) would consider 

microscopes, telescopes, and other 

scientific equipment that would be used 

by an adult, as well as a child, to be 

general use products. The proposed 

interpretative rule would explain that 

equipment with a marketing strategy 

that targets schools, such as scientific 

instrument rentals, would not convert 

such products into children’s products 

if such products are intended for general 

use, regardless of how the equipment is 

leased, rented, or sold. However, the 

proposal would further explain that, in 

general, scientific equipment that is 

specifically sized for children and/or 

has childish themes or decorations 

intended to attract children is 

considered a children’s product. Toy 

versions of such items are also 

considered children’s products. 

(Comment 27)—Several commenters 

state that school supplies, such as 

science equipment, writing devices, and 

musical instruments used in 

educational settings, should be 

considered general use items. They 

argue that many items that are specified 

in these curriculums can be easily found 

at department stores, hardware stores, 

grocery stores, and specialty shops. In 

addition, other commenters state that 

many science and math programs and 

kits are principally designed and used 

as instructional materials for teachers in 

a classroom setting. Accordingly, they 

request that we revise the rule to 

include such items as general use items 

when marketed and sold for the purpose 

of supervised, hands-on educational 

instruction. In addition, a few 

commenters request that pens, pencils, 

and other office supplies be specifically 

included as general use items because 

they are used mainly by the general 

public. 

(Response 27)—We agree with the 

commenters that many math and 

science kits that are sent to schools for 

the purpose of teaching these subjects 

contain materials, such as rubber bands, 

staples, paper clips, and other items, 

that can be found in any hardware or 

grocery store. In determining whether 

these assembled products should now 

be considered children’s products 

because of their new use, packaging, 

and marketing to schools, we consider 

the four specified statutory factors 

together as a whole. If a distributor or 

retailer sells or rents a general use 

product in bulk through distribution 

channels that target children 12 years of 

age or younger in educational settings, 

such as schools or summer camps, 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. Products mainly 

intended for use by the instructor would 

not be considered children’s products. 

Some pens and pencils are designed 

or intended primarily for children 12 

years of age or younger. However, if a 

pen, pencil, or other office supply is not 

designed or intended primarily for 

children 12 years of age or younger, it 

would not be considered a children’s 

product. 

The Commission notes that, in the 

context of science equipment, size may 

be more pertinent to protective gear, 

such as gloves and aprons, in making an 

age determination than it would be to 

the scientific instruments themselves 

and is, on its own initiative, changing 

the final rule to reflect this. 

24. Sporting Goods and Recreational 

Equipment—§ 1200.2(d)(8) (Formerly 

§ 1500.92(d)(8)). Proposed 

§ 1500.92(d)(8)) would consider sporting 

goods that are primarily intended for 

consumers older than 12 years of age to 

be general use items. The proposed 

interpretative rule would explain that 

regulation-sized sporting equipment, 

such as basketballs, baseballs, bats, 

racquets, and hockey pucks, are general 

use items even though some children 12 

years of age or younger will use them. 

However, this section would provide 

that sporting goods become children’s 

products when they are sized to fit 

children or are otherwise decorated 

with childish features that are intended 

to attract children 12 years of age or 

younger. Likewise, this section would 

provide that recreational equipment, 

such as roller blades, skateboards, 

bicycles, camping gear, and fitness 

equipment, are considered general use 

products unless they are sized to fit 

children 12 years of age or younger and/ 

or are decorated with childish features 

by the manufacturer. 

(Comment 28)—Several commenters 

state that sporting equipment intended 

for ‘‘tweens,’’ teens, and young adults 

should not be considered ‘‘children’s 

products.’’ One commenter states that 

‘‘legitimate’’ sporting goods should be 

general use products whether they are 

used by a 9-year-old or 13-year-old and 

that ‘‘size’’ is irrelevant to making the 

determination. The commenter asserts 

that their uses and essential purposes 

are no different than sporting equipment 

used by teens. Another commenter 

states that the cost of testing these 

products was too high and resulted in 

delays in manufacturing. 

(Response 28)—We agree that 

products sized for general use are not 

converted into children’s products 

because they are also used by children 

12 years of age or younger (such as 


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Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 63077 

‘‘tweens’’ whom, based upon the Age 

Determination Guidelines issued by the 

Consumer Product Safety Commission 

staff in September 2002, for purposes of 

this response, we consider to be 

individuals under 13, but not younger 

than 9 years of age). Unless such items 

are specifically marketed to children or 

have extra features that make them more 

suitable for children than for adults, 

they would be considered general use 

products. However, we disagree that 

sizing of the sporting equipment would 

be irrelevant to the age determination. If 

children 12 years or younger would 

mainly use the product because it 

would be too small or inappropriate for 

older children to use, then it likely 

would be considered a children’s 

product. 

As for the comment regarding testing 

costs and manufacturing delays, such 

matters are outside the scope of this 

rulemaking. Comments related to testing 

and certification are addressed in 

separate rulemaking on product 

certification published in the Federal 

Register on May 20, 2010 (75 FR 28336). 

Additionally, the Commission 

recognizes that the use of the term 

‘‘regulation sized sporting equipment’’ 

leaves room for confusion between 

whether the Commission is referring to 

youth regulation size or adult regulation 

size. Accordingly, the final rule is 

modified to reflect this consideration 

and renumbered as § 1200.2(d)(8). 

(Comment 29)—One commenter states 

that the interpretative rule should be 

clear that a product sized for an adult, 

such as a baseball glove, is considered 

a general use product even if there is a 

cartoon character on it. In addition, the 

commenter asserts that a wading pool 

may be a children’s product based on 

size alone, regardless of whether it 

contains additional play features, and 

requests a definition for ‘‘shallow’’ in 

reference to wading pool depth. 

(Response 29)—We agree that the 

presence of a cartoon character on an 

adult-sized product is not sufficient to 

label a product as a children’s product. 

Age determinations take into account 

the principal use patterns of a given 

product; so if a baseball glove is too 

large for children to use, it would not be 

intended for use by children 12 years of 

age or younger and therefore would not 

be a children’s product, no matter how 

it is decorated. 

In response to the comment regarding 

wading pools, we agree that such pools 

generally are intended for children even 

without childish themes or play 

features. The size, decorations, and 

depth of a pool may be sufficient to 

determine that a product is primarily 

intended for use by children. However, 

the Commission does not have 

regulations setting forth the dimensions 

of wading pools. 

25. Musical Instruments— 

§ 1200.2(D)(9) (Formerly 

§ 1500.92(d)(9)). Proposed 

§ 1500.92(d)(9) would consider musical 

instruments suited for an adult 

musician as well as a child to be general 

use products. Instruments primarily 

intended for children can be 

distinguished from adult instruments by 

their size and marketing themes. The 

proposed interpretative rule also would 

explain that products with a marketing 

strategy that targets schools, such as 

instrument rentals, would not convert 

such products into children’s products 

if such products are intended for general 

use, regardless of how the instruments 

are leased, rented, or sold. These 

instruments are intended by the 

manufacturer for use primarily by 

adults, although there also may be 

incidental use by children through such 

programs. However, this section also 

would provide that products that 

produce music or sounds in a manner 

that simplifies the process so that 

children can pretend to play an 

instrument are considered toys 

primarily intended for children 12 years 

of age or younger. 

(Comment 30)—One commenter states 

that the proposed rule should explicitly 

exclude from the definition of children’s 

product electronically-aided musical 

instruments and musical devices that 

are preprogrammed by the user or the 

manufacturer. 

(Response 30)—We agree that the 

preprogrammed sounds and 

demonstration pieces in electronicallyaided musical instruments would be 

considered general use products. 

However, toys that have preprogrammed 

sounds will continue to be considered 

children’s products. Accordingly, we 

have revised the rule to add ‘‘including 

electronically-aided musical 

instruments’’ after ‘‘Musical 

instruments.’’ 

The Commission notes that if a 

distributor or retailer sells or rents in 

bulk, general use musical instruments 

through distribution channels that target 

children 12 years of age or younger in 

educational settings, such as schools or 

summer camps, 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. 

26. Other Issues 

(Comment 31)—One commenter states 

that the effective date should be delayed 

to give manufacturers an opportunity to 

evaluate whether or not their products 

are children’s products pursuant to this 

rule. 

(Response 31)—Because this is an 

interpretative rule, a delayed effective 

date is not required by the 

Administrative Procedure Act (5 U.S.C. 

553(d)). 

(Comment 32)—A few commenters 

raise issues with footwear. These 

commenters state that there is no 

certainty as to whether an article of 

footwear is a children’s product and that 

the issue is confused especially with 

youth footwear. According to the 

commenters, many 12-year-olds wear 

adult footwear and that size does not 

necessarily relate to age. The 

commenters request an objective 

standard of footwear of 24 centimeters 

(cm) or more as being intended for 

adults. 

(Response 32)—We believe that the 

manufacturer is in the best position to 

make an initial determination regarding 

whether footwear is primarily intended 

for children 12 years of age or younger. 

However, we will rely on the statutory 

factors, rather than a single factor since 

it is possible that other features can 

strongly indicate that the footwear is 

intended primarily for children 12 years 

old or younger even though the length 

of the footwear exceeds 24 cm. 

List of Subjects in 16 CFR Part 1200 

Business and industry, Infants and 

children, Consumer protection, Imports, 

Toys. 

■ For the reasons stated above, the 

Commission adds 16 CFR part 1200 to 

read as follows: 

PART 1200—DEFINITION OF 

CHILDREN’S PRODUCT UNDER THE 

CONSUMER PRODUCT SAFETY ACT 

Sec. 

1200.1 Purpose. 

1200.2 Definition of children’s product. 

Authority: 15 U.S.C. 2052(2). 

§ 1200.1 Purpose. 

This part provides guidance on the 

definition of children’s product and the 

factors the Commission will consider 

when making determinations regarding 

children’s products as set forth under 15 

U.S.C. 2052(2). 

§ 1200.2 Definition of children’s product. 

(a) Definition of ‘‘Children’s 

Product’’—(1) Under section 3(a)(2) of 


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the Consumer Product Safety Act 

(CPSA), a children’s product means a 

consumer product designed or intended 

primarily for children 12 years of age or 

younger. The term ‘‘designed or 

intended primarily’’ applies to those 

consumer products mainly for children 

12 years old or younger. Whether a 

product is primarily intended for 

children 12 years of age or younger is 

determined by considering the four 

specified statutory factors. These factors 

are: 

(i) A statement by a manufacturer 

about the intended use of such product, 

including a label on such product if 

such statement is reasonable. 

(ii) Whether the product is 

represented in its packaging, display, 

promotion, or advertising as appropriate 

for use by children 12 years of age or 

younger. 

(iii) Whether the product is 

commonly recognized by consumers as 

being intended for use by a child 12 

years of age or younger. 

(iv) The Age Determination 

Guidelines issued by the Commission 

staff in September 2002 and any 

successor to such guidelines. 

(2) The examples discussed herein 

may also be illustrative in making such 

determinations; however, 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. The term ‘‘for use’’ by 

children 12 years or younger generally 

means that children will physically 

interact with such products based on 

the reasonably foreseeable use of such 

product. Toys and articles that are 

subject to the small parts regulations at 

16 CFR Part 1501 and in ASTM F963 

would 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. 

(b) Definition of ‘‘General Use 

Product’’—(1) A general use product 

means a consumer product that is not 

designed or intended primarily for use 

by children 12 years old or younger. 

General use products are those 

consumer products designed or 

intended primarily for consumers older 

than age 12. Some products may be 

designed or intended for use by 

consumers of all ages, including 

children 12 years old or younger, but are 

intended mainly for consumers older 

than 12 years of age. Examples 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. 

(2) Other products are specifically not 

intended for children 12 years of age or 

younger. These 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, 

products that incorporate performance 

requirements for child resistance are not 

children’s products as 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. 

(c) Factors Considered—To determine 

whether a consumer product is 

primarily intended for a child 12 years 

of age or younger the four specified 

statutory factors must be considered 

together as a whole. The following four 

factors must be considered: 

(1) A statement by a manufacturer 

about the intended use of such product, 

including a label on such product if 

such statement is reasonable. A 

manufacturer’s statement about the 

product’s intended use, including the 

product’s label, should be reasonably 

consistent with the expected use 

patterns for a product. 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, as indicated, for 

example, by decorations or 

embellishments that invite use by the 

child, being sized for a child or being 

marketed to appeal primarily to 

children. 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. The manufacturer’s label, in 

and of itself, is not considered to be 

determinative. 

(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. 

(i) These representations may be 

express or implied. For example, 

advertising by the manufacturer 

expressly declaring 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 by the 

manufacturer showing children 12 years 

of age or younger using the product may 

support a determination that the 

product is a children’s product. These 

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. 

(ii) 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. For example, a product 

displayed in a children’s toy section of 

a store may support a determination that 

the product is a children’s product. 

However, where that same product is 

also sold in department stores and 

marketed for general use, further 

evaluation would be necessary. The 

Commission recognizes that 

manufacturers do not necessarily 

control where a product will be placed 

in a retail establishment and such lack 

of control will be considered. The 

Commission evaluates products more 

broadly than on a shelf-by-shelf or storeby-store basis. 

(iii) 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. 

(3) Whether the product is commonly 

recognized by consumers as being 

intended for use by children 12 years of 

age or younger. Consumer perception of 

the product’s use by children, including 


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its reasonably foreseeable use, will be 

evaluated. Sales data, market analyses, 

focus group testing, and other marketing 

studies may help support an analysis 

regarding this factor. 

(i) Features and Characteristics— 

additional considerations that may help 

distinguish children’s products from 

nonchildren’s products include: 

(A) Small sizes that would not be 

comfortable for the average adult; 

(B) Exaggerated features (large 

buttons, bright indicators) that simplify 

the product’s use; 

(C) Safety features that are not found 

on similar products intended for adults; 

(D) Colors commonly associated with 

childhood (pinks, blues, bright primary 

colors); 

(E) Decorative motifs commonly 

associated with childhood (such as 

animals, insects, small vehicles, 

alphabets, dolls, clowns, and puppets); 

(F) 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; and 

(G) Play value, i.e., features primarily 

attractive to children 12 years of age or 

younger that promote interactive 

exploration and imagination for fanciful 

purposes (whimsical activities lacking 

utility for accomplishing mundane 

tasks; actions performed for 

entertainment and amusement). 

(ii) Principal use of the product—the 

principal uses of a product take 

precedence over other actions that are 

less likely to be performed with a 

product. For example, 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; 

(iii) Cost—the cost of a given product 

may influence the determination of the 

age of intended users; and 

(iv) Children’s interactions, if any, 

with the product—products for use in a 

child’s environment by the caregiver but 

not for use by the child would not be 

considered to be primarily intended for 

a child 12 years of age or younger. 

(4) The Age Determination Guidelines 

issued by the Consumer Product Safety 

Commission staff in September 2002, 

and any successor to such guidelines. 

The 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. 

(d) Examples—To help manufacturers 

understand what constitutes a 

children’s product under the CPSA, the 

following additional examples regarding 

specific product categories are offered: 

(1) Furnishings and Fixtures—General 

home furnishings and fixtures 

(including, but not limited to: Rocking 

chairs, shelving units, televisions, 

digital music players, ceiling fans, 

humidifiers, air purifiers, window 

curtains, tissue boxes, rugs, carpets, 

lamps, clothing hooks and racks) that 

often are found in children’s rooms or 

schools would not be considered 

children’s products unless they are 

decorated or embellished with a 

childish theme 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. Examples of home 

or school furnishings that are designed 

or intended primarily for use by 

children and considered children’s 

products include: Infant tubs, bath seats, 

small bean bag chairs with childish 

decorations, beds with children’s 

themes, child-sized desks, and childsized chairs. Decorative items, such as 

holiday decorations and household 

seasonal items that are intended only for 

display, with which children are not 

likely to interact, are generally not 

considered children’s products, since 

they are intended to be used by adults. 

(2) Collectibles—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. For example, collectible plush 

bears have high cost, are highly 

detailed, with fragile accessories, 

display cases, and platforms on which 

to pose and hold the bears. Children’s 

bears have lower costs and simple 

accessories that can be handled without 

fear of damage to the product. Another 

example of collectible items includes 

model railways and trains made for 

hobbyists. 

(3) Jewelry—Jewelry intended for 

children is generally sized, themed, and 

marketed to children. The following 

characteristics may cause a piece of 

jewelry to be considered a children’s 

product: Size; very low cost; play value; 

childish themes on the jewelry; sale 

with children’s products (such as a 

child’s dress); sale with a child’s book, 

a toy, or party favors; sale with 

children’s cereal or snacks; sale at an 

entertainment or educational event 

attended primarily by children; sale in 

a store that contains mostly children’s 

products; and sale in a vending 

machine. In addition, 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 

including: Advertising; promotional 

materials; packaging graphics and text; 

dexterity requirements for wearing; 

appearance (coloring, textures, 

materials, design themes, licensing, and 

level of realism); and cost. These 

characteristics will help jewelry 

manufacturers and consumers 

determine whether a particular piece of 

jewelry is designed or intended 

primarily for children 12 years of age or 

younger. 

(4) DVDs, Video Games, and 

Computer Products—Most computer 

products and electronic media, such as 

CDs, DVDs, and video games, are 

considered general use products. 

However, CDs and DVDs with encoded 

content that is intended for and 

marketed to children, such as children’s 

movies, games, or educational software 

may be determined to be children’s 

products. CPSC staff may consider 

ratings given by entertainment 

industries and software rating systems 

when making an age determination. In 

addition, electronic media players and 

devices that are embellished or 

decorated with childish themes that are 

intended to attract children 12 years of 

age or younger, are sized for children, or 

are marketed to appeal primarily to 

children, are not likely to fall under the 

general use category where children 12 

years or younger likely would be the 

primary users of such devices. However, 

electronic devices such as CD players, 

DVD players, game consoles, book 

readers, digital media players, cell 

phones, digital assistant communication 

devices, and accessories to such devices 

that are intended mainly for children 

older than 12 years of age or adults are 

products for general use. 

(5) Art Materials—Materials sized, 

decorated, and marketed to children 12 

years of age or younger, such as crayons, 

finger paints, and modeling dough, 

would be considered children’s 

products. 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. Consideration of the 

marketing and labeling of raw materials 

and art tools (such as modeling clay, 

paint, and paint brushes) may often be 

given high priority in an age 

determination because the appeal and 

utility of these raw materials has such 

a wide audience. 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 


emcdonald on DSK2BSOYB1PROD with RULES
63080 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 

1The term ‘‘swap data repository’’ is defined in 

Section 1a(48) of the Commodity Exchange Act 

(‘‘CEA’’ or the ‘‘Act’’) to mean ‘‘any person that 

collects and maintains information or records with 

respect to transactions or positions in, or the terms 

and conditions of, swaps entered into by third 

parties for the purpose of providing a centralized 

recordkeeping facility for swaps.’’ 

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 requirements of the 

Labeling of Hazardous Art Materials Act 

are similar to the labeling requirements 

of the FHSA, of which it is a part. 

Therefore, third party testing to LHAMA 

is not required. An art material designed 

or intended primarily for children 12 

years of age or younger would have to 

be tested by a third party laboratory to 

demonstrate compliance with CPSIA, 

but it would not require third party 

testing and certification to the LHAMA 

requirements. For the same reasons, no 

general conformity certificate is 

required for general use art materials. 

(6) Books—The content of a book can 

determine its intended audience. 

Children’s books have themes, 

vocabularies, illustrations, and covers 

that match the interests and cognitive 

capabilities of children 12 years of age 

or younger. The age guidelines provided 

by librarians, education professionals, 

and publishers may be dispositive for 

determining the intended audience. 

Some children’s books have a wide 

appeal to the general public, and in 

those instances, further analysis may be 

necessary to assess who the primary 

intended audience is based on 

consideration of relevant additional 

factors, such as product design, 

packaging, marketing, and sales data. 

(7) Science Equipment—Microscopes, 

telescopes, and other scientific 

equipment that would be used by an 

adult, as well as a child, are considered 

general use products. Equipment that is 

intended by the manufacturer for use 

primarily by adults, although there may 

be use by children through such 

programs, is a general use product. Toy 

versions of such items are considered 

children’s products. If a distributor or 

retailer sells or rents a general use 

product in bulk through distribution 

channels that target children 12 years of 

age or younger in educational settings, 

such as schools or summer camps, 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. Products mainly 

intended for use by the instructor would 

not be considered children’s products. 

In general, scientific equipment that is 

specifically sized for children, such as 

protective gear, eyewear, gloves, or 

aprons and/or has childish themes or 

decorations and invites use by a child 

12 years of age or younger or is 

marketed to appeal primarily to 

children is considered a children’s 

product. 

(8) Sporting Goods and Recreational 

Equipment—Sporting goods that are 

intended primarily for consumers older 

than 12 years of age are considered 

general use items. Sporting equipment, 

sized for adults, are general use items 

even though some children 12 years of 

age or younger will use them. Unless 

such items are specifically marketed to 

children 12 years of age or younger, or 

have extra features that make them more 

suitable for children 12 years of age or 

younger than for adults, they would be 

considered general use products. If 

children 12 years or younger would 

mainly use the product because it 

would be too small or inappropriate for 

older children to use, then it likely 

would be considered a children’s 

product. Likewise, recreational 

equipment, such as roller blades, 

skateboards, bicycles, camping gear, and 

fitness equipment are considered 

general use products unless they are 

sized to fit children 12 years of age or 

younger and/or are decorated with 

childish features by the manufacturer. 

(9) Musical Instruments—Musical 

instruments, including electronicallyaided instruments suited for an adult 

musician, are general use products. 

Instruments intended primarily for 

children can be distinguished from 

adult instruments by their size and 

marketing themes. The Commission 

notes that if a distributor or retailer sells 

or rents in bulk, a general use musical 

instrument through distribution 

channels that target children 12 years of 

age or younger in educational settings, 

such as schools or summer camps, 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. 

Dated: October 6, 2010. 

Todd A. Stevenson, 

Secretary, Consumer Product Safety 

Commission. 

[FR Doc. 2010–25645 Filed 10–13–10; 8:45 am] 

BILLING CODE 6355–01–P 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 44 

RIN 3038–AD24 

Interim Final Rule for Reporting PreEnactment Swap Transactions 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Interim final rule; request for 

public comment. 

SUMMARY: The Commodity Futures 

Trading Commission (‘‘Commission’’ or 

‘‘CFTC’’) is publishing for comment an 

interim final rule to implement new 

statutory provisions introduced by Title 

VII of the Dodd-Frank Wall Street 

Reform and Consumer Protection Act 

(‘‘Dodd-Frank Act’’). Section 729 of the 

Dodd-Frank Act requires the CFTC to 

adopt, within 90 days of enactment of 

the Dodd-Frank Act, an interim final 

rule for the reporting of swap 

transactions entered into before July 21, 

2010 whose terms had not expired as of 

that date (‘‘pre-enactment unexpired 

swaps’’). Pursuant to this mandate, the 

CFTC is today adopting an interim final 

rule requiring specified counterparties 

to pre-enactment unexpired swap 

transactions to report certain 

information related to such transactions 

to a registered swap data repository 

(‘‘SDR’’) 1 or to the Commission by the 

compliance date to be established in 

reporting rules required under 

Section2(h)(5) of the CEA, or within 60 

days after an SDR becomes registered 

under Section 21 of the CEA, whichever 

occurs first. An interpretive note to the 

rule advises that counterparties that 

may be required to report to an SDR or 

the CFTC will need to preserve 

information pertaining to the terms of 

such swaps. 

DATES: This interim final rule is 

effective October 14, 2010. Comments 


emcdonald on DSK2BSOYB1PROD with RULES