10742 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

CONSUMER PRODUCT SAFETY

COMMISSION

16 CFR Part 1500

Final Rule to Ban Small Balls Intended

for Children Younger Than Three Years

of Age and To Require Labeling of

Certain Toys and Games

AGENCY: Consumer Product Safety

Commission.

ACTION: Final Rule.

SUMMARY: The Child Safety Protection

Act of 1994 (CSPA) amended the

Federal Hazardous Substances Act

(FHSA) by adding a new section 24

which, inter alia, imposes labeling

requirements on certain balls, balloons,

marbles, and certain toys and games

intended for use by children three years

of age and older. The amendment also

bans certain balls intended for use by

children younger than three years of

age. Although the requirements imposed

by the amendments are generally selfexecuting, the Commission is

publishing this regulation to incorporate

the requirements of the CSPA into the

Code of Federal Regulations (CFR) and

to interpret or clarify certain provisions

of that legislation.

DATES: This regulation becomes

effective on August 28, 1995 for

products manufactured or imported into

the United States.

FOR FURTHER INFORMATION CONTACT:

Francis Krivda, Compliance Officer,

Office of Compliance and Enforcement,

Consumer Product Safety Commission,

Washington, D.C. 20207–0001;

telephone (301) 504–0400, ext. 1372.

SUPPLEMENTARY INFORMATION:

A. Background

1. Previous Commission Actions

In 1979, the Commission issued

regulations to ban toys and other articles

which are intended for use by children

younger than three years of age and

which present an aspiration, ingestion,

or choking hazard because of small

parts. The small parts regulations are

codified at 16 CFR 1500.18(a)(9) and

Part 1501. Toys and children’s articles

subject to the regulations must be

placed in a truncated cylinder with a

diameter of 1.25 inches (31.7 mm.) and

a depth ranging from 1 to 2.25 inches

(25.4 mm to 57.1 mm). If the product or

any independent or detachable

component of the product fits entirely

within the cylinder, it is banned.

Additionally, a toy or children’s article

is banned if any component or piece of

such a product becomes detached

during ‘‘use and abuse’’ testing. The

‘‘use and abuse’’ tests are codified at 16

CFR 1500.50–1500.53.

The small parts regulations apply

only to toys and articles intended for

use by children younger than three

years of age. Some products, including

balloons, are excluded from the scope of

these regulations because they cannot be

manufactured to function as intended

and still comply with the requirements

of the regulations.

Previously, the Commission received

information indicating that an average

of seven children a year choke to death

on balloons or parts of balloons. The

agency also received reports of children

younger than three choking on small

toys or games, or the parts of such

products, which were intended for

children three years of age and older.

For example, small balls and marbles

are generally considered to be intended

for such older children, but have been

associated with choking fatalities

involving children under three.

In some cases, choking incidents

involving children younger than three

years of age occurred after an adult

purchased a product labeled to indicate

that the article was suitable for children

three years and older, but gave the

article to a child younger than three. In

such cases, it is possible that the

purchaser believed that the labeling

statement was not a safety message, but

instead referred to the age at which the

child could use or enjoy the product.

The origins of the CSPA rest in

rulemaking activities in which the

Commission engaged between 1988 and

1992. In 1988, the Commission

published an advance notice of

proposed rulemaking (ANPR) to initiate

regulatory action to enlarge the

dimensions of the cylinder used to

evaluate whether toys or other articles

intended for children under three

contain small parts that could present a

choking hazard. In 1990, the

Commission terminated that

proceeding. It determined that the use of

the test cylinder specified in the

existing small parts regulation had been

effective in preventing choking deaths

and injuries to children under three

associated with toys intended for that

age group. At the same time, however,

the Commission published four ANPRs

that, inter alia, solicited preliminary

comment on proposals to require

labeling on small balls, balloons,

marbles, and toys and other articles

with small parts intended for children

aged three to approximately six. In

1991, after analyzing the comments

received in response to the ANPRs, the

Commission staff recommended that the

Commission propose rules prescribing

labeling under the FHSA for the

products that later became the subject of

the CSPA. The Commission, however,

terminated all four proceedings because

it felt that it could not make the findings

required by the FHSA.

2. The Child Safety Protection Act

On June 16, 1994, Congress enacted

the CSPA. The legislation establishes

substantially the same labeling

requirements for balloons, marbles,

small balls, and toys and games

containing small parts that the staff

recommended in 1991. The primary

purpose of the legislation is to warn

purchasers of the potential hazards for

children under three that products

intended for older children may present.

The CSPA prescribes labeling

statements for balloons, for balls with a

diameter of 1.75 inches or less (‘‘small

balls’’) and marbles intended for

children three years or over, and for toys

or games that contain such items. The

law also requires labeling for toys or

games that contain small parts and that

are intended for children at least three

years old but not older than six. Under

the CSPA, small balls intended for

children under three are banned. The

statute specifies the text of the required

label statement for each of the

enumerated products and requires that

labeling appear on the principal display

panel of product packages. For

unpackaged, unlabeled items sold in

bulk, any bin in which they are

displayed, and any container for retail

display or vending machine from which

they are sold or dispensed must bear the

required labeling. The law also directs

the Commission to promulgate

regulations to implement the statutory

requirements.

On July 1, 1994, the Commission

published in the Federal Register a

proposed rule (59 FR 33932). The

proposed rule clarified and interpreted

certain provisions of the CSPA. It

included definitions of terms such as

‘‘ball,’’ ‘‘small part,’’ and ‘‘descriptive

material,’’ and established criteria for

determining the age of children for

which a game or toy is intended. It also

clarified the applicability of the type

size and conspicuousness requirements

of the regulation codified at 16 C.F.R.

1500.121 to the products that are subject

to the CSPA. It further contained

provisions to assure that labeling

statements would appear prominently

on product packages.

B. Response to Comments

In response to the proposed rule, the

Commission received almost 300

comments, most from individual

consumers. Major consumer groups

supported many of the provisions of the
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10743

rule as written and recommended

strengthening others. Many individual

members of those organizations

submitted comments supporting the

rule as drafted. Approximately twenty

manufacturers, trade associations, and

firms that test toys commented on the

proposed labeling requirements for toys

and games, while other commenters

addressed issues such as the

applicability of the CSPA to writing and

art materials and to balloons distributed

by individual performers or sold

individually. Other comments raised

issues relating to labeling for

unpackaged products sold or distributed

in bulk or requested clarification of

specific technical requirements

established by the act or the proposed

regulation. Comments on specific parts

of the rule and the Commission’s

responses to the comments are

discussed in the following paragraphs.

1. Relationship of the CSPA to Other

Standards

Representatives of foreign toy

manufacturers commented generally on

the complications the legislation

presents with regard to standardized

labeling statements under the European

toy safety directive and to the

development and use of a graphic

symbol to identify products that are

hazardous to children under three.

Inasmuch as Congress mandated in the

CSPA the precise labeling requirements

that products in the U.S. market must

meet, the Commission has little ability

to address these concerns. Thus, no

changes have been made to the final

rule concerning these issues.

2. Existing Policies With Respect to

Labeling and Toys

A recurring question throughout the

comments is the extent to which the

Commission, in administering the

CSPA, intends to apply its existing

policies and interpretations with respect

to labeling and toys generally. For

example, commenters inquired whether

they can combine the warning

statements required for marbles and for

games with small parts, if they produce

a game that contains both items.

Under the general labeling provisions

of 16 CFR 1500.127, the Commission

permits information relating to a

specific hazard associated with a

hazardous substance to be combined

with information relating to additional

hazards if the resulting statement

contains all the information needed to

deal with each respective hazard. If the

Commission followed its existing

policies, the labeling for the game could

be condensed to reflect the hazard

associated with the small parts and the

marble in one statement.

Similarly, under the Commission’s

small parts testing regulations, toys

reasonably intended to be assembled by

an adult and not intended to be taken

apart by a child are tested only in the

assembled state, if the shelf package and

assembly instructions prominently

indicate that the article is intended to be

assembled only by an adult. The effect

of this exception is to exempt from the

small parts test the hardware used to

assemble the toy. If the Commission

follows this policy with respect to the

labeling required by the CSPA, products

containing such hardware would also be

exempt from the labeling requirements.

The majority of the Commission’s

policies applicable to toys have evolved

over the last ten to fifteen years, while

many of the labeling policies are twenty

to thirty years old. All of the policies

provide standardized points of

reference, both for regulated industries

as well as the Commission staff, and

take into account the requirements of

the law, the objective of protecting the

public, and the practical realities of the

commercial world.

To avoid the confusion associated

with establishing differing requirements

for similar toys and labels, in

administering the labeling provisions of

the CSPA, the Commission will

generally apply its existing policies with

respect to children’s articles and

hazardous substances labeling. This

general rule will apply unless such a

policy (1) conflicts with the express

provisions of the CSPA; (2) is

overridden by a policy decision of the

Commission as expressed in the final

rule or in subsequent guidance to the

staff of the Commission; (3) is

impractical in its application; or (4)

could result in a diminution of the

protection envisioned by the law. The

Commission believes it unlikely,

however, that either of the latter two

exceptions will occur.

3. Upper Age Limit

a. Toys and Games

The CSPA establishes labeling

requirements for any toy or game that

includes a small part and that is

intended for use by children who are at

least three years old but not older than

six. The law permits the Commission to

establish an alternative age to the upper

limit of six years, but that alternative

limit ‘‘may not be less than five years of

age.’’ 15 U.S.C. 1278(a)(1). In the

proposed rule, the Commission declined

to establish an alternative upper age

limit. As explained below, the final rule

adopts an upper age limit of less than

six years.

Consumer advocates supported

maintaining the upper age limit at six

years, arguing that, in the absence of

compelling evidence to the contrary, the

upper age limit specified in the statute

should control. Several industry

commenters, however, objected to

applying the labeling requirements to

toys or games intended for use by

children under seven years of age (i.e

while they are six years old). These

commenters argued that this upper age

limit departed from the original 1991

staff recommendation that the

Commission require labeling on toys or

games intended for children aged from

36 months up to, but not including, 60

months. Most of these commenters

suggested that the Commission select an

alternative upper age limit of not more

than five years, although some

suggested that the Commission adopt

the upper age limit in the original staff

recommendation.

Other commenters argued that the

upper age limit of six is inconsistent

with the Commissions’s Guidelines for

Relating Children’s Ages to Toy

Characteristics which the Commission

uses to evaluate toys or other articles

intended for use by children. According

to these commenters, the inconsistency

arises because the guidelines

differentiate products intended for

children aged 37 through 72 months

from those intended for children 73

through 96 months old. The

commenters contended that, if

manufacturers complied with the

labeling requirements and also followed

the guidelines, the practical effect of

applying the labeling to products

intended for children under the age of

seven would be to require labeling for

products intended for children between

the ages of 73 and 96 months.

At the outset, neither the CSPA nor its

legislative history contain an

explanation of the reason for the

statutory upper age limit of six years or

for the floor of five years on the

alternative age limit. The text of the

legislation, however, expressly

forecloses using the original staff

recommendation to label toys and

games intended for children up to, but

not including, 60 months of age as the

alternative upper age limit. Similarly,

any alleged inconsistency between the

Commission age grading guidelines and

the labeling requirements of the CSPA

arises because the statute itself

establishes a presumptive upper age

limit of six years for labeling that does

not coincide with the age divisions in

the guidelines. The Commission is, of
10744 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

course, bound to follow the

requirements of the law.

The original staff recommendation

did not suggest labeling products for

children five years of age or older

because available data did not support

the need to extend the labeling

requirements to products intended for

that age group. That recommendation

therefore does not itself provide a basis

for specifying a specific alternative

upper age between five and seven years.

However, the Commission believes that

the rationale for the original proposal—

that the products most likely to present

a threat to children under three are toys

and games intended for three and four

year olds, and that the skills, levels of

development and play interests of

children five years of age and older

differ significantly from those of such

younger children—is valid. Thus, the

Commission believes that establishing

an upper age limit lower than six would

not significantly compromise the safety

of children under three.

An upper age limit of 5 years (e.g.,

under 60 months and one day) would

most closely approximate the objectives

of the original staff recommendation.

However, since there is no clearly

defined line between toys intended for

four year olds and those intended for

five years olds, drawing a distinction in

the rule in effect based on the day after

a child reaches his or her fifth year

could create problems for manufacturers

in complying with the law. In contrast,

an upper age limit of less than 6 years

(less than 73 months) would be

consistent with the Commission’s

Guidelines for Relating Children’s Ages

to Toy Characteristics. Those

established guidelines recognize a break

between toys and games intended for

children 37 months through 72 months

old (less than 6 years old), and those

intended for children 73 (6 years old)

through 96 months.

The Commission has therefore

lowered the upper age limit to apply to

toys or games intended for use by

children who are less than six years old.

In addition to the reasons discussed

above, the Commission believes that

limiting the scope of the labeling

requirement will more closely focus

prospective purchasers on the potential

hazards of those toys and games

intended for older children that are

most likely to be purchased for younger

children. Moreover, many toys intended

for children six years of age are also

intended for children seven and eight

years of age. While the great majority of

these products are unlikely to be

purchased for children under three,

labeling all of these products could

dilute the effectiveness of the labeling

on products intended for children from

three up to six years of age that are most

likely to be purchased for younger

children.

b. ‘‘Younger Than Seven Years’’

The preamble to the proposed rule

points out that products intended for

children of a specific age are generally

recognized by consumers as being

suitable for all children of that age.

Thus, a toy labeled for use by children

six years old is typically viewed as

being appropriate for use by children

who have just turned six, as well as for

use by those approaching their seventh

birthday. The proposed rule interpreted

the term ‘‘intended for use by children

who are * * * not older than six years’’

in the CSPA to mean that the labeling

requirements apply to toys or games

intended for children under seven years

of age.

Several commenters disagreed with

this approach. Some contended it was

inconsistent with the Commission’s age

grading guidelines. Others, relying on

the statutory upper age limit of six

years, suggested that the interpretation

in the proposed rule would lead

manufacturers who currently label

products for children age six and up in

accordance with industry standard

practice to revise the age

recommendations to seven and up.

None of the commenters provided a

basis for changing the interpretation.

This approach is the same as that of the

Commission’s small parts regulation

which applies to products intended for

children under three years of age.

Moreover, applying the labeling

requirements to products intended for

use by children who have not yet

reached a specific age—in this case,

six—is consistent with the analytical

approach of the Commission’s age

grading guidelines. For example, a child

does not attain the age of six years until

the completion of the last day of his or

her seventy-second month (i.e., is

beginning the seventy-third month).

Thus, the upper end of 72 months in the

age grouping of 37 to 72 months

specified in the guidelines, in effect,

applies to articles intended for children

who are in the midst of their fifth year

but have not yet reached their sixth

year, i.e. are under six years of age. The

Commission, therefore, declines to

modify the final rule in the manner

requested by the commenters.

4. Prominence and Conspicuousness of

Labeling

Under the CSPA, precautionary

labeling statements must be displayed

in the English language in conspicuous

and legible type in contrast by

typography, layout, or color with other

printed material on a product package,

on any accompanying descriptive

material, on any bin or container for

retail display from which the product is

sold, and on any vending machine from

which it is dispensed. The act also

requires that the labeling statements be

displayed ‘‘in a manner consistent with

part 1500 of title 16, Code of Federal

Regulations.’’ 15 U.S.C. 1278(c)(1)(B).

Title 16, Part 1500.121, contains the

Commission’s policies and

interpretations implementing section

2(p)(2) of the FHSA which requires that

precautionary labeling for hazardous

substances appear prominently and

conspicuously. The proposed rule

incorporated by reference those policies

and interpretations, with modifications

designed to accommodate specific

provisions of the CSPA and the general

differences between toy labels and

hazardous substance labels.

No commenter objected to

incorporating the provisions of 16 CFR

1500.121 by reference in the proposed

rule. Consumer advocates favored

publishing the proposed requirements

in final without change. Several

industry commenters, however, objected

to specific provisions in the proposed

rule modifying 16 CFR 1500.121. Those

objections and the Commission’s

response are discussed below.

a. ‘‘Color-Blocking’’

To assure that the labeling statements

required by the CSPA appear

prominently and conspicuously, the

proposed rule solicited comments on

the desirability of ‘‘color-blocking’’

those statements. Color-blocking would

require the statements to appear on a

background different from the color of

the background of the area of the

package on which it appears, from the

color of any printed matter in proximity

to the required statements, and, if the

package were a see-through package,

from the color of the article contained

in the package. As the proposed rule

explained, the packages of products

subject to the CSPA generally contain

many visual messages, some in printed

product descriptions and depictions,

others in see-through features that

display actual products. All of these

features have the potential to obscure

labeling statements which, if they

generally followed the provisions of 16

CFR 1500.121, would otherwise be

regarded as conspicuous.

Several commenters objected to the

‘‘color-blocking’’ proposal, contending

that it is more stringent than the current

conspicuousness requirements

contained in 16 CFR 1500.121. They

also contended that requiring color-
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10745

blocking would unnecessarily increase

the size of blister packaging used for

small products and hinder tri-lingual

labeling under the North American Free

Trade Agreement (NAFTA). The

commenters argued that applying the

existing provisions of 16 CFR 1500.121

to products subject to CSPA labeling

would be adequate to assure that the

labels are conspicuous.

The CSPA requires that the labels it

prescribes must be displayed

conspicuously in a manner consistent

with part 1500 of title 16 of the Code of

Federal Regulations. The law does not

require that the conspicuousness

requirements for the labels of toys and

games be identical to any similar

requirement in the existing regulations.

Accordingly, while the proposed

regulation incorporated certain

provisions of 16 CFR 1500.121, it also

contained variations that take into

account the requirements of the

legislation itself and the lithography and

design features of packages for toys and

games. The ‘‘color-blocking’’ proposal

was one variation.

The conspicuousness of a labeling

statement depends on a variety of

factors, including the location of the

statement on the package and the types

of printed material in proximity to it.

While ‘‘color-blocking’’ is one technique

to assure that labeling is conspicuous,

the Commission believes that the use of

this method in all cases may be

unnecessary to accomplish the

objectives of the CSPA. As is discussed

below, two provisions of the existing

conspicuousness regulations provide

adequate assurance that labels required

by the CSPA will be conspicuous

without requiring the use of colorblocking.

The Commission’s existing policy in

16 CFR 1500.121(b)(2)(ii) requires that

labeling statements that appear on a

principal display panel be blocked

together within a square or rectangular

area with or without a border. The

statements must be separated on all

sides from other printed or graphic

matter by a space no smaller than the

minimum allowable height of the type

size for precautionary labeling other

than signal words and statements of

principal hazard (e.g. the statement

‘‘Not for children under three yrs.’’ in

the CSPA). If not separated by that

distance, the labeling statements must

be surrounded by a border line. With

regard to other cautionary material, 16

CFR 1500.121(d)(2) specifies that the

label design, the use of vignettes, or the

proximity of other labeling or lettering

shall not be such that any cautionary

labeling statement is obscured or

rendered inconspicuous.

The Commission has revised the final

regulation to eliminate the requirement

for color-blocking. Instead, the labeling

must also conform to the spacing/

borderline requirements of 16 CFR

1500.121(b)(2)(ii) for principal display

panel labeling. This means that, if a

border line is used, it must be

rectangular or square in shape. If no

border line is used, other printed or

graphic material should be separated

from the cautionary labeling statements

in a manner that makes the

precautionary statements appear in a

square or rectangular area. If other

printed or graphic material appears on

less than four sides of the cautionary

material, the other printed or graphic

material on any side should be laid out

in a manner that creates the appearance

of a vertical or horizontal line of

separation, as appropriate, between that

material and the cautionary labeling.

The Commission believes that the

latter measures will adequately assure

the conspicuousness of labeling for

almost every product subject to the

CSPA. Recognizing, however, that it is

impossible to anticipate the design or

lithography of every package, the final

regulation includes a provision similar

to that of 16 CFR 1500.121(d)(2) relating

to interference with precautionary

labeling by label design, the proximity

of other labeling, or vignettes. The

practical effect of this provision is that

all labeling mandated by the CSPA must

appear on a solid background, although

the color of that background need not

differ from the background color of the

rest of the package label as long as the

precautionary statements appear

conspicuously. The inclusion of this

provision will also permit the

Commission to take action, should the

spacing/borderline provisions be

inadequate in a specific case to make

the labeling required by the CSPA

conspicuous.

b. Principal Display Panel/Multiple

Type Sizes

The proposed rule established

minimum type sizes for the various

labeling statements required by the

CSPA based upon the area of the display

panel upon which those statements

appear. For smaller packages with

display panels of less than 100 square

inches, the regulation followed the type

size charts of Table 1 of 16 CFR

1500.121(c)(2) which generally apply to

the labels of hazardous substances

packaged in containers up to one gallon

in volume. For larger packages, the

regulation followed the minimum

lettering heights of 16 CFR 1505.3(d)(2)

which apply to labels on packages for

electrically operated toys.

1. See-Through Features: Several

commenters requested clarification of

the definition and the measurement of

the area of principal display panels. A

number argued that the measurement of

the area of the principal display panel

should exclude the area of see-through

features, contending that including this

area in the measurement would result in

labels that are too large. The

Commission declines to accept this

recommendation.

The Commission’s existing policies

require that the area of a see-through

feature be included in measuring the

area of a principal display panel. This

is because see-through features are

incorporated into packages to permit

consumers to see the item for sale in

conjunction with the labeling that

accompanies the item. Such a feature

often includes background graphics

designed to promote specific attributes

of the item that is visible through the

feature or to show the item in an action

setting. Like written descriptions or

printed depictions of the products that

generally appear on the packages of toys

or games, see-through features

communicate to prospective purchasers

details about the products contained

therein. Accordingly, the Commission

views see-through features as

functioning as part of the label of the

product. To assure that the

precautionary statements required by

the CSPA are conspicuous and that a

see-through feature does not direct a

prospective purchaser’s attention away

from those statements, the area of the

see-through feature is included in

computing the area of the principal

display panel to determine the proper

type size.

The Commission, however,

distinguishes packages with see-through

features from peg-board packages

consisting of a cardboard header with an

attached plastic bag containing the item

for sale. In the latter instance, all of the

graphic material typically appears on

the cardboard header separated from the

item, making the header the principal

display panel of the package. If a

manufacturer chooses to place

precautionary labeling on the header,

the area of the surface of the header

designed to face outward at retail

controls the type size of the labeling. If,

however, a manufacturer chooses to

place precautionary labeling on the

plastic bag, the bag itself becomes part

of the principal display panel and its

area is included along with that of the

header in determining the appropriate

type size. For peg board packages

consisting of a header and a plastic bag

which contains multiple individually

packaged products, some of which may
10746 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

require labeling, labeling each

individual package that contains a

product requiring labeling is sufficient

to comply with the law, as long as the

label is visible through the outer bag

and is conspicuous. The type size of the

statement would be based on the area of

the individual bag containing the item,

rather than on the area of the outer

plastic bag.

2. Vending Machine Display Panels:

Representatives of vending machine

interests questioned what the principal

display panel of a vending machine is,

noting that, generally, labeling may

appear either on the glass or clear

plastic container of the machine or on

a display card intended to be inserted in

a holder in the machine. The

commenters suggested that, if the

machine has a display card that

contains graphic material, the card itself

constitutes the principal display panel.

In the absence of such a card, the front

of the container would be the principal

display panel. The type size of the

required labeling statements would

depend on the area of the surface treated

as the principal display panel. The

Commission agrees that this approach is

appropriate and has revised the final

regulation accordingly.

3. Type Size for Large Packages: Some

commenters objected to the use of letter

sizes specified in the electrical toy

regulation for large packages. The

commenters contended that the type

sizes prescribed for packages with an

area in excess of 30 square inches

(approximately the size of a gallon

container) in 16 CFR 1500.121(c)(2) are

adequate for larger packages, including

those with an area in excess of 400

square inches. One commenter argued

that the larger type sizes prescribed in

the proposed regulation are

inappropriate for products subject to the

CSPA which, unlike electrical toys, do

not present a hazard to the intended

user. That commenter also submitted

mock-up labels which purported to

represent how the labels would actually

appear if they complied with the larger

type size requirements of the proposed

regulation. It also submitted other mockup labels purporting to demonstrate that

the use of smaller type size on large

packages could still result in

conspicuous labels. As was argued with

color-blocking, other commenters

contended that the use of larger type

sizes would increase the size of blister

packaging for small products and would

hinder tri-lingual labeling under

NAFTA.

The Commission believes that the

commenters’ objections and concerns

are unfounded and has adopted the

proposed type size requirements in the

final rule. Labeling cannot be effective

unless it attracts the attention of

consumers. Both 16 CFR 1500.121 and

the labeling provisions of the electrical

toy regulation follow the established

principle that scaling the size of type to

the display panel area on which it

appears is essential to accomplish this

objective. The type size requirements of

16 CFR 1500.121 are designed to

accommodate the relatively small

packages used for products such as

household cleaners. The electrical toy

regulation, which has been in effect for

over twenty years, expressly addresses

the issue of the size of labeling for larger

packages similar to those in which

many products covered by the CSPA are

marketed. The commenters did not

adequately explain why the

Commission should accede to smaller

type sizes for products in large packages

which could, in many cases, make

labeling statements required by the

CSPA inconspicuous. The Commission

notes that the commenters’ attempt to

distinguish the electrical toy labeling

requirements from those required by the

CSPA on the basis of hazard to the

intended user is not persuasive. The

labeling required by the electrical toy

regulation states in part ‘‘CAUTION—

ELECTRIC TOY: Not recommended for

children under lll years of age

* * *’’, a statement which has

substantially the same purpose as the

labels prescribed by the CSPA.

With respect to the ‘‘mock-up’’ labels

submitted by one commenter, the

proposed regulation only specified the

minimum height of the letters in a

precautionary labeling statement.

However, the conspicuousness of a label

statement also depends on the style of

type used, as well on the ratio of the

height of the letters in the statement to

their width and the spacing between the

letters. The ‘‘mock-up’’ labels that the

commenter submitted to demonstrate

that the type size in the proposed rule

for packages with a display panel in

excess of 100 square inches was ‘‘too

large’’ used a heavy, bold-faced type,

with an approximate two-to-one heightto-width ratio for the letters, and normal

spacing between the letters. In contrast,

the labeling requirements of 16 CFR

1500.121(c)(3), incorporated by

reference in the proposed rule, only

require that the height-to-width ratio not

exceed three to one, and are silent on

type style and letter spacing. Thus,

while a manufacturer is free to use a

label similar to the ‘‘mock-up’’ labels

presented by the commenter, the

regulation does not require it, nor would

following the provisions of the proposed

rule with respect to large packages

necessarily produce the result displayed

by the mock-up labels that the

commenter viewed as undesirable.

The same commenter also submitted

other mock-up labels purporting to

demonstrate that the use of smaller type

size on large packages could still result

in conspicuous labels. Again, in

addition to letter height, type style,

height-to-width ratio, and spacing all

play a major role in making labels

conspicuous. The Commission agrees

that certain combinations of these

factors coupled with sharply contrasting

colors may tend to make smaller type

more conspicuous. However, in the

absence of requirements in the

regulations specifying type style,

spacing, etc., there is no assurance that

the use of smaller type will result in a

conspicuous label.

With respect to the allegation that the

type sizes specified in the rule for large

packages will require that the size of

blister packaging for small products be

increased, those type sizes have, for

years, been accepted as striking a

reasonable balance to assure that

warnings are conspicuous while

providing ample space for other graphic

material. In the Commission’s view,

while changes in lithography may be

required to meet the requirements of the

CSPA, there is no evidence that

compliance will require increasing

package sizes.

4. Blister Cards: One commenter

suggested that the Commission permit

blister cards to be labeled either on the

front of the card or the back, reasoning

that parents are just as likely to read the

information on the back of the card as

they are the information on the front.

The Commission declines to accept this

suggestion. The law requires that the

principal display panel—the front of a

blister card—be labeled. Moreover, the

intent of the CSPA is to provide pointof-purchase warnings. There is no

evidence that parents will read the back

of a blister card prior to purchase.

Moreover, in the case of articles like

dolls or toy cars which are generally not

accompanied by instructions, the

Commission believes it unlikely that

purchasers will read the back of the card

at all.

c. Multiple Label Statements

Several commenters expressed

concern that the proposed rule would

require a toy or game that contained

multiple articles subject to the labeling

requirements of the CSPA to bear the

complete text of each label specified in

the act addressing the hazard associated

with each article. The proposed

regulation did not address this issue.

For clarity, the Commission has revised
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10747

the final regulation to incorporate a

provision similar to 16 CFR 1500.127(b)

which permits labeling information

relating to multiple hazards to be

condensed as long as the resulting

statement contains all of the information

necessary to deal with the specific

hazard presented by each article. The

Commission notes, however, that the

message contained in the balloon label

specified in the CSPA differs

substantially from those in the labels for

balls, marbles, and toys and games with

small parts. Therefore, the label of a

package that contains a balloon and

another item subject to the CSPA may

only have a combined signal word and

statement of hazard. The remaining

statements required by the act with

respect to each of the products in the

package must appear on the label of the

package.

d. Label Justification, Layout and

Spacing

The proposed rule required that labels

required by the CSPA appear in the

same format and layout as that

prescribed in the legislation itself.

Several commenters objected to this

requirement, noting the Senate Report

on the legislation would have permitted

labels to vary from the precise format

specified in the law. One commenter

questioned whether the statutory format

requirements included margin

justification.

The requirement in the proposed rule

was based on the precision with which

the law identifies the text and format of

the various labeling statements. The rule

construed that precision as an express

indication of how Congress intended

those statements to appear on package

labels. However, when taken in

conjunction with the Congressional

mandate that the Commission’s

regulations for the conspicuousness of

labeling required by the CSPA be

consistent with 16 CFR 1500.121, the

Commission believes that a more valid

reading of the legislation would treat the

format and layout of the various labeling

statements in the law as exemplary,

rather than mandatory.

While the label format set forth in the

law is more than adequate to meet the

Commission’s existing conspicuousness

regulations, it does not take into account

variations in packaging design and

lithography that the Commission can

expect to encounter for products subject

to the CSPA. On balance, the existing

policies implementing the labeling

requirements of the FHSA have proven

adequate to ensure that labels are

prominent and conspicuous. Thus, the

Commission has revised the proposed

rule to delete the requirement that

manufacturers follow the precise format

in the statute and instead will follow its

existing labeling policies with respect to

format and layout. The Commission

however notes that one existing policy

states that labeling statements shall

appear blocked together within a square

or rectangular area. This means that the

labeling statements required by the act

must appear on at least two lines. Since

the resolution of the overall issue of

format also resolves the question of

margin justification, no response to that

comment is necessary.

5. Descriptive Material

The CSPA requires the statutory

warnings to appear on descriptive

material accompanying a product that

requires labeling under the act. The

proposed regulation defined the term

‘‘descriptive material’’ as ‘‘any

instruction (whether written or

otherwise) for the use of the product,

any depiction of the product, and any

promotional material, advertisement, or

other written literature that describes

any function, use, warnings, user

population, or other characteristic of the

product, including its suitability for use

with or relationship to other games,

products, or toys.’’ The proposed

regulation also noted that descriptive

material ‘‘accompanies’’ a product when

it is packaged with the product or is

intended to be distributed with the

product at the time of sale or delivery

to the purchaser. As is discussed below,

the final rule retains much of the

definition, but clarifies that catalogs and

marketing materials that describe

products other than a regulated product

generally need not be labeled.

a. Meaning of ‘‘Accompanies’’

Several commenters expressed

concern that the definition of the term

‘‘descriptive material’’ in the proposed

regulation might require multiple labels

on product packages such as blister

cards that, for example, contain

instructions for use or recommended

age labeling on the back of the cards. As

the discussion of the term

‘‘accompanies’’ in the proposed rule

indicates, the Commission believes that

Congress intended labeling

requirements for descriptive material to

apply to material separate from the

package of the article itself, such as an

instruction sheet. The final regulation

clarifies this point.

Another commenter questioned

whether material such as mail order

catalogs or newspaper advertisements

depicting items subject to the CSPA are

required to bear the required warning

statements. The act only requires

descriptive material which accompanies

a regulated product to be labeled.

According to the proposed regulation,

descriptive material ‘‘accompanies’’ a

product when it is packaged with the

product or when it is intended to be

distributed with the product at the time

of sale or delivery to the purchaser. A

catalog or advertisement that does not

meet either of these criteria would not

require labeling.

b. Instructions for Use

Several commenters contended that

the definition of the term ‘‘descriptive

material’’ in the proposed rule was too

expansive. Some requested that the

definition be limited to material

containing instructions for use.

Section 2(n)(2) of the FHSA expressly

requires that labeling required by the act

appear ‘‘* * * on all accompanying

literature where there are instructions

for use, written or otherwise.’’ Inasmuch

as the CSPA follows the general labeling

scheme of the FHSA, the Commission

believes that the use of the term

‘‘descriptive material’’ without the

limitation contained in section 2(n)

indicates a Congressional intention that

CSPA labeling not be limited to material

containing instructions for use.

Accordingly, the Commission declines

to adopt the revision requested by the

commenter to limit the labeling

requirements to written material

containing instructions for use.

The Commission notes that the great

majority of material that accompanies

the products subject to the CSPA

contains instructions for use, either with

or without other descriptions. Moreover,

each discrete piece of material

accompanying a regulated product need

only have one label. Thus, if a piece of

accompanying literature contained, for

example, instructions for use, a

statement of the age of the children for

whom an item is intended, and a

depiction of the product, only one

precautionary statement would be

required. Therefore, the Commission

believes that defining the term

‘‘descriptive material’’ broadly to

include the variety of ways that

accompanying material can describe or

depict a regulated product should have

little practical effect.

c. Catalogs and Marketing Materials

Many industry commenters

contended that catalogs and marketing

materials depicting other products, as

well as the regulated products that such

materials accompany, should be exempt

from the labeling requirements. Under

their rationale, the purpose of such

catalogs is to focus the attention of the

purchaser on the other products rather
10748 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

than on the regulated product he or she

has just purchased.

First, the law only applies to

descriptive material that accompanies a

product that requires labeling. A catalog

that accompanies an unregulated

product need not bear any labeling,

even though the packages of other

products described in the catalog might

require labeling.

The status under the CSPA of a

marketing material such as a catalog that

depicts or advertises other items in

addition to the regulated product that

the catalog accompanies is a question of

interpretation. Although a depiction of

a regulated product in a catalog would

appear to meet the plain meaning of the

term ‘‘descriptive material,’’ the

Commission believes that requiring

labeling in such a circumstance will do

little to increase the protection provided

by the point-of-purchase warning on the

product’s label. Accordingly, the

Commission has excluded such catalogs

and similar marketing materials from

the definition of ‘‘descriptive material,’’

unless they contain additional

information, such as instructions for use

of the regulated product it accompanies

or a list of accessories intended to be

used solely with that product.

d. Descriptive Material Intended for Use

by Children

Some commenters recommended that

descriptive material intended for use by

children not require precautionary

labeling, if the warnings are included on

a separate package insert intended for

adults. The commenters, citing the

Senate report, reasoned that the

statutory warnings are intended for

adult purchasers and that young

children would be unable to understand

and appreciate the hazards. Consumer

advocates, however, favored requiring

that such material be labeled, noting

that the material is often read by adults

even though it is intended for children

and that many children are capable of

reading and understanding the

warnings.

The Commission believes that the

inclusion of a properly labeled insert in

addition to instructions for children is

adequate to satisfy the objectives of the

legislation without compromising

safety. The final rule exempts from the

labeling requirements descriptive

material intended solely for use by

children, provided that the package of

the product also contains a properly

labeled insert intended for adults that is

prominently identified as a warning for

parents.

6. Definition of Package

The proposed regulation defined the

term ‘‘package’’ as the immediate

package in which a product subject to

labeling is sold or is intended to be

stored, as well as to any outer container

or wrapping. Commenters expressed

concern that this definition could

require labeling to appear on shrink

wrap or cellophane applied over an

immediate package, as well as on

components of toys such as doll houses,

toy medical bags, etc. that are

themselves used to store other

components. One commenter also

suggested that the labeling requirements

not apply to containers used to ship

packaged products to retailers because

consumers generally do not see or read

information on such containers.

In response to the latter comment, the

Commission notes that the CSPA only

applies to retail packages intended to be

distributed to consumers or to

containers used to display bulk

unpackaged and unlabeled items at

retail. The Commission also notes that,

for unpackaged, unlabeled products

sold in bulk, unlabeled shrink wrap film

intended to keep a toy clean or plastic

‘‘eggs’’ designed to permit toys to be

dispensed from vending machines is not

‘‘packaging’’ which would require

labeling under the CSPA.

With respect to the other comments,

the reference to the outer container or

wrapper of a product in the proposed

rule tracks section 2(n) of the FHSA

which requires that any labeling

required under that act shall appear on

the outside container or wrapper of a

hazardous substance, unless the labeling

is easily legible through the outside

container or wrapper. This provision is

equally applicable to the labeling

required by the CSPA. With respect to

functional components of toys that are

used to store other components, the

CSPA only requires that packaging

intended for retail inspection must bear

labeling. Thus, while cardboard boxes

for games may require labeling if they

have a surface that functions as a

principal display panel, the

Commission believes that Congress did

not intend labeling to be applied

directly to toys or components of toys

that already bear labeling on their

packaging or that are not part of the

retail display. However, if such items

are displayed at retail without any

packaging, the items themselves would

have to bear a hang tag containing the

required labeling. The final regulation

has been revised to clarify both of these

issues.

7. Definition of ‘‘Toy or Game’’

The proposed rule did not include a

definition of ‘‘toy’’ or ‘‘game.’’ However,

commenters requested that the

Commission clarify the scope of these

terms, questioning whether arts and

crafts materials, such as paint sets or

bead stringing kits, are subject to the

labeling requirements. Representatives

of the Art and Creative Materials

Institute cited a decision of the United

States Court of Appeals for the Second

Circuit to support the proposition that

art materials are not necessarily

included in the definition of a toy. This

decision, however, addressed the issue

of whether a flammable children’s

article was an educational material that

was exempt from the banning

requirements of the FHSA.

Past Commission actions have

generally addressed the hazards

associated with articles intended for use

by children, including toys and games.

The agency, therefore, has not

previously undertaken to define either

term. In the absence of a regulatory

definition, however, the Commission

generally looks to common dictionary

definitions of terms for guidance. For

example, a toy is ‘‘an object for children

to play with; especially something made

for the amusement of a child or for his

use in play.’’ A game is ‘‘an article for

use in a physical or mental competition

conducted according to rules in which

the participants play in direct

opposition to each other.* * *’’ (In the

Commission’s view, the latter definition

also includes games in which children

compete with an item itself rather than

other children.) The Commission has

elected not to include definitions of the

terms ‘‘toy’’ and ‘‘game’’ in the final

rule, but will continue to draw upon on

common dictionary definitions of these

terms for guidance in administering the

CSPA.

With respect to the specific

applicability of the term ‘‘toy’’ to arts

and crafts sets intended for children

three to five, these products are

primarily intended for use in play and

for the amusement of such children. The

Commission therefore considers them to

be ‘‘toys.’’ Such items would require

labeling under the CSPA, even though a

child, in the course of play, might

produce a ‘‘functional’’ item for display

or use. However, items such as pens and

pencils for general use which might

incidentally be used in play would not

be considered toys.

The Commission has also received

inquiries concerning the status of

‘‘hybrid’’ items, such as children’s

toiletries which include toys or other

items subject to the CSPA. If any part of
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10749

such an item is an article subject to the

CSPA, the package of the item requires

labeling.

8. Educational Materials and Mail Order

Sales

a. Sales to Educational Institutions

One commenter questioned whether

packages of toys or games sold

exclusively to schools through catalogs

require labeling. The primary purpose of

the CSPA is to provide a point-ofpurchase warning of the hazards that

products intended for older children

present to children under three.

Inasmuch as children under three are

not typically present in a traditional

school setting, requiring labeling on toys

and games sold by mail solely to

educational institutions such as

kindergartens and elementary schools

for use exclusively in those institutions

would not accomplish the purposes of

the CSPA. Accordingly, such items are

excluded from the scope of the

regulation, as long as the items are

intended for children five and up. This

age limitation is specified because

products intended for three and four

year old children may be sent to preschools or institutions such as day care

centers where children under three may

be present.

b. Mail Order Sales

A few commenters questioned

whether the CSPA applies to products

distributed to consumers through the

mail, and, if so, whether it is sufficient

to label just the mailing wrapper or

whether both the product package and

outer wrapper require labeling. Products

exclusively distributed by mail are

subject to the CSPA. Since the CSPA

contemplates point-of-purchase

inspection, firms can comply with the

law by conspicuously labeling either the

immediate product package or the outer

wrapper. Such labeling need not be

lithographed or printed on the wrapper.

The use of a stamped label will suffice.

The Commission notes that, if a product

sold by mail is also sold in retail outlets,

the retail package itself must be labeled.

9. Practices Under the Small Parts

Regulation

The Commission’s regulations

addressing the choking hazards

associated with toys and articles

intended for children under three that

contain small parts establish tests to

determine whether such products will

emit small parts under reasonably

foreseeable conditions of use or abuse.

They also exempt from the banning

provisions specific items including

writing materials (such as crayons,

chalk, pencils and pens), books and

other articles made of paper, modeling

clay, and finger paints, watercolors, and

other paint sets. Commenters

questioned whether these policies apply

to items regulated under the CSPA.

a. Use and Abuse Testing

The proposed rule did not include a

requirement for ‘‘use and abuse’’ testing

of toys and games. The rule noted that

the Commission lacked sufficient

information to establish the need to

apply use and abuse tests to toys and

games intended for children between

three and six years of age, or on the

costs associated with imposing such

requirements. In addition, the decision

not to require use and abuse testing was

based on the language of the CSPA

which referred to toys or games that

‘‘include’’ a small part.

Commenters split on the issue of

applying use and abuse tests to toys and

games. Consumer advocates favored

requiring such tests, arguing that the

failure to do so might mislead parents

into believing a product without

labeling is safe, even though small parts

might detach from the product during

play. Industry commenters, arguing

against the requirement, contended that

hazard and injury data do not support

the need to impose such testing.

Given the absence of data relating to

the costs of imposing such requirements

and any potential benefits, the final rule

retains the position expressed in the

proposed rule and does not require use

and abuse testing. Moreover, the

Commission continues to believe that a

reasonable reading of the phrase

‘‘includes a small part’’ provides a basis

for concluding that Congress did not

intend to require use and abuse testing.

The Commission notes that

commenters exhibited confusion about

the applicability of use and abuse tests

to solid items that are intended to be

removed or separated from toys or

games during play or use, such as

accessories for action figures and battery

covers that are not screwed shut, or to

items such as strip magnets that are

designed to be divided into individual

components. Under the Commission’s

existing policies, such items are

evaluated by detaching them without

applying use and abuse testing and

placing them in the test cylinder.

Similarly, if, as is discussed infra., the

Commission decides that products that

are currently exempt from the small

parts regulation require labeling, items

such as modeling clay and play dough,

which separate into multiple pieces of

varying sizes during use, will be

evaluated without compression in the

form and shape in which they are sold

at retail.

b. Exempt Products

The proposed rule was silent on the

applicability of the CSPA to products

that are exempt from the small parts

regulation under 16 CFR 1501.3.

Furthermore, there is no express

reference in the CSPA or its legislative

history to the status of products that are

exempt from the small parts

requirements. Commenters argued that

the inclusion of balloons, which are

expressly exempt from the small parts

regulation, in the CSPA could be

construed as an indication that Congress

knew how to include exempt products

within the scope of the statute when it

wanted to. Since Congress only singled

out balloons for coverage, other exempt

products would not require labeling.

Others contended that requiring

products exempt from small parts

testing to be labeled would also create

an apparent inconsistency. For example,

a felt tip marker intended for children

between three and six years of age with

a cap that is a small part would require

labeling (assuming, of course, that the

item is a toy), but the same item would

require neither labeling nor compliance

with the small parts regulation if it were

intended for children under three.

Other commenters noted that the

purpose of the exemptions to the small

parts regulation was to avoid banning

functional products which could not be

produced in compliance with the small

parts requirements. These commenters

argued that labeling provides a

reasonable alternative to alert parents

purchasing toys and games for older

children to the potential hazards such

products may present to younger

children. Furthermore, unlike the small

parts performance requirements,

labeling such items would not affect

their ability to be produced and sold.

In its vote on the final rule, the

Commission divided on the issue of

whether toys and games that are exempt

from the small parts regulation, if they

are intended for children under three,

require labeling under the CSPA, if they

are intended for children three through

five years of age. Accordingly, that issue

will remain unresolved until such time

as a majority of the Commission concurs

on its resolution. Pending that

resolution, toys and games that are

exempted from the requirements of the

small parts regulation by 16 CFR 1501.3

are not required to bear labeling under

the act. However, even if the

Commission elects to require labeling

for exempt products, paper punch-out

toys and games will still be exempt from

the labeling requirements, since there is
10750 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

no data to indicate that such items

present a risk to children under three.

10. Bulk Sales

The CSPA requires that labeling

appear not only on retail packages, but

also on bins from which unpackaged

and unlabeled regulated products are

sold in bulk, containers for the retail

display of such items, and vending

machines from which they are

dispensed. The labels must appear

conspicuously. Administering labeling

requirements of this nature is a matter

of first impression for the Commission,

since the FHSA and its regulations

require an unpackaged hazardous

substance to bear a label on the item

itself or on a hang tag attached to the

item.

a. Obligation to Apply Labels

One commenter questioned whether

retailers are required to label store

displays of items subject to the CSPA

which are sold in bulk and without

packaging. The CSPA requires labeling

on bins, containers for retail display,

and vending machines from which

unpackaged items subject to the act are

sold or dispensed. A retailer who fails

to comply with these requirements may

be subject to penalties for violating

section 4(c) of the FHSA. To assist

retailers in complying with the CSPA,

the Commission suggests that

manufacturers include, in the shipping

containers for bulk products, labels for

the retailer to post. For example, an 7′′

× 5′′ card containing the required

labeling in the type size specified by 16

CFR 1500.121 would generally suffice to

assure that large bins are conspicuously

labeled. Smaller cards, e.g. 3′′ × 5′′, 2′′

× 4′′ would generally be adequate for

smaller containers for bulk display. To

provide an incentive for displaying the

cards, such cards could include an area

for displaying the price of the item. As

an alternative to providing such labels,

the invoice that accompanies bulk

products or the shipping container of

such products could contain a clear

statement of the requirements of the

law.

b. Definition of Bin or Container for

Retail Display

The applicability of the CSPA to

traditional dump display bins, gold fish

bowls, and similar containers that

contain loose merchandise to be

inspected and selected by purchasers

themselves is clear. However, many

commenters questioned whether the law

applies to a showcase or counter at

which items are displayed for

inspection by purchasers but are

selected by a clerk or sales person at the

direction of the purchasers. Examples

include arcades in which premiums are

redeemed for coupons, carnival booths,

and fast food outlets.

In the absence of any clear indication

in the legislation or its history that

Congress intended to cover display

cases and similar counters, the

Commission interprets the CSPA as

requiring labeling only for those bins

and containers from which consumers

select items displayed in bulk. The final

rule reflects this determination.

11. Small Balls and Marbles

a. Implied Upper Age Limit—Small

Balls and Marbles

The CSPA requires that packages of

small balls and marbles intended for

children three years of age or older, and

of toys and games containing such balls

and marbles, bear precautionary

labeling. The proposed rule tracked the

statutory language. Several commenters

requested that the Commission establish

an upper age limit for the purposes of

labeling such products. Some suggested

that an upper age limit of eight years (96

months) would be consistent with the

provisions of 16 CFR 1500.53 which

establishes use-and-abuse testing

requirements for toys intended for

children in this age group. Another

comment recommended twelve or

fourteen years as the upper limit, based

on the age at which children reach

puberty.

Individual small balls or marbles are

generally used in play by children of all

ages—that is, they are as likely to be

used by five to seven year olds as they

are by nine to eleven year olds. Because

there is no distinction between the ages

of the children who will use them, all

such products require labeling under

the CSPA.

The Commission, however,

distinguishes balls and marbles

contained in toys and games from those

intended for general use. The former are

often intended for children of a

specified age based on the level of

intellectual or physical development of

children in that age group. Even in the

absence of precautionary labeling, the

Commission believes it highly unlikely

that a parent would consider purchasing

a toy or game containing a small ball or

marble intended for a child over eight

years of age for a child under three. For

example, as the Commission’s age

grading guidelines recognize, nine to

twelve year olds have developed

sufficient fine motor coordination for

labyrinth or maze games that require

maneuvering a marble along a pathway

and for games requiring careful shooting

or aiming of markers. Such games,

however, would have virtually no play

value for children under three. The final

rule therefore only requires labeling for

toys and games containing a small ball

or marble that are intended for children

under 8 years of age. This age limit also

follows the maximum age limit

specified in the Commission’s

regulations prescribing tests to

determine whether a children’s article

presents a hazard during reasonably

foreseeable use or abuse.

b. Balls for General Use in Sports

One commenter questioned whether

ping pong balls and golf balls require

labeling under the CSPA, reasoning that,

since children utilize such products, the

products qualify as a toy or game

intended for children under seven years

of age. The commenter, however, did

not address the issue of status of these

items as small balls under the CSPA.

The Commission believes that the

CSPA was not designed to cover balls

generally intended for use in sports

such as golf or ping pong which might

incidentally be used by children over

three. If, however, such a ball is labeled

or marketed as being intended for

children or is part of toy, game, or

equipment set specifically intended for

children over three years of age but less

than eight years old, the labeling

requirements apply.

c. Definition of Ball

The proposed rule defined a ‘‘ball’’ as

a spheroid, ovoid, or elliptical object

that is designed or intended to be

thrown, hit, kicked, rolled, or bounced.

One commenter requested that the

definition of the term ‘‘ball’’ be

expanded to include items that are

dropped, commenting that some toys or

games incorporate such a feature. The

Commission believes that this comment

has merit and has revised the final rule

accordingly. Another commenter

questioned whether tethered balls are

subject to the CSPA only if they fail use

and abuse testing. Unlike small parts

which only present a hazard when they

detach during use or abuse, small balls

present a choking hazard even when

tethered. Thus, tethered balls are subject

to the labeling requirements, regardless

of whether they pass use or abuse tests.

A third commenter questioned how to

determine whether a ball is permanently

enclosed in a maze. As discussed

previously, the rule does not require use

or abuse testing to determine whether

small parts are present for the purposes

of CSPA labeling. However, the final

rule does reflect a limited exception to

this determination. The determination

of whether a ball is permanently

enclosed in a maze or similar container
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10751

is made by subjecting the container to

the appropriate test in 16 CFR 1500.52

or 53 simulating the use and abuse of a

toy or article intended for use by

children under three, in the case of

banned small balls, or three or over for

labeling purposes.

d. Marbles

Since marbles are primarily intended

for use by children, the labeling

requirements generally apply to all

packages, games, or toys containing

marbles. Marbles that are not intended

for children include collectors’ marbles

and marbles for ornamental or industrial

use. In addition, the Commission has

excepted from the labeling requirements

marbles that are permanently enclosed

in a game or toy. As is the case with

small balls, the determination of

accessibility can be made by applying

the tests of 16 CFR 1500.53.

e. Template for Testing Balls

The proposed regulation bans any ball

intended for children under three years

of age that, under the influence of its

own weight, passes, in any orientation,

through a circular hole with a diameter

of 1.75 inches in a rigid template. One

commenter questioned whether the

template must have the same

dimensions as the template used to test

rattles. The pacifier regulation, 16 CFR

1511 provides a better point of reference

for testing than the rattle regulation,

since the procedure for testing pacifiers

is similar to that used to test small balls.

While the final rule does not

incorporate all of the external

dimensions of the pacifier test fixture, to

assure that the template is rigid, the rule

indicates that the depth of the template

for testing small balls must be at least

1⁄4 inch (6mm.), consistent with that of

the pacifier test fixture.

12. Balloons

The CSPA requires that the packaging

of any latex balloon and any descriptive

material which accompanies such a

balloon bear specific labeling statements

warning that uninflated balloons or

pieces of balloons can choke or

suffocate children under eight years of

age. In the case of bulk sales of balloons,

the bin, container for retail display, or

vending machine from which the

balloons are sold or dispensed must

bear the required labeling statements.

a. Unpackaged Balloons Distributed

Individually

One commenter expressed concern

that the CSPA may require performers,

such as professional magicians, who

distribute individual unpackaged

balloons to members of their audiences

either to label the individual balloons or

wear a tag or sign containing the

required warnings. The law imposes

neither requirement feared by the

commenter.

Packages of balloons must bear

precautionary labeling. However, the

bulk sale requirements of the law are

designed to require labeling on

containers in which multiple products

are held for retail sale. The Commission

does not believe that Congress intended

these provisions to extend to

individuals who distribute unpackaged

balloons that are not held in some form

of container for retail display. Thus,

unpackaged individual balloons

distributed as part of a professional

performance are not subject to the

requirement. The same is true for

balloons used in commercial birthday

programs which are blown up prior to

arrival of the children and are used to

decorate the table and party area, even

though individual balloons may be

given to the children as they leave.

If, however, a performer receives

packages of balloons that are unlabeled

and distributes the packages to the

public, the performer must take steps to

assure that the packages are properly

labeled. A performer can comply with

these requirements by purchasing

packages of balloons that are properly

labeled or by placing a sticker label

containing the required labeling on

unlabeled balloon packages prior to

distributing them to the public.

b. Books and Videos

The same commenter questioned the

applicability of the labeling

requirements to books and videos

describing balloon sculpture.

Descriptive material such as a book or

videotape would only require

precautionary labeling when that

material is packaged with a package of

balloons or when the material is

intended to be distributed at the same

time such a package is sold or delivered

to a purchaser. The fact that a consumer

who receives an instructional videotape

or book may subsequently purchase

balloons does not bring the tape or book

within the ambit of the law. If an

individual or company packages or

distributes to the public a package of

balloons together with a videotape,

instruction sheet, or book that is

classified as descriptive material, that

individual or company has the

obligation to assure that the descriptive

material is properly labeled.

13. Exports

Some commenters questioned

whether the CSPA requirements apply

to products manufactured in the United

States exclusively for export. Products

intended for export that are labeled in

accordance with the specifications of

the foreign purchaser and with the laws

of the country to which they are to be

exported do not require labeling under

the CSPA, as long as the shipping

container is clearly marked that the

product is for export and the product is,

in fact, exported. 15 U.S.C. 1264(b)(3).

However, under existing Commission

policy, the manufacturer or exporter of

the product must comply with the

export notification requirements of 15

U.S.C. 1273(d) and 16 C.F.R. 1019.

14. Products Manufactured Outside the

United States

The CSPA includes an alternative to

labeling descriptive materials for

products manufactured outside the

United States and shipped directly to

consumers. Under the alternative, if the

shipping container contains other

accompanying material that is labeled

conspicuously, the descriptive material

need not be labeled. One commenter

requested clarification that products

packaged abroad and shipped to a U.S.

affiliate for shipment to consumers be

included in the scope of this exception.

The commenter noted that the Senate

Report contemplated this type of

arrangement. The Commission accepts

this suggestion and has revised the final

regulation accordingly.

15. Effective Date

Several commenters requested that

the Commission delay the effective date

of the final rule to permit package labels

to be redesigned and printed. Some

suggested a delay of six months, while

others requested a year. However, no

commenter provided a detailed

breakdown of the time frames involved.

Based on its experience with

administering the prominence and

conspicuousness requirements of 16

CFR 1500.121, the Commission agrees

that a delayed effective date is

appropriate. Accordingly, the final

regulation becomes effective with

respect to products manufactured in or

imported into the United States six

months after publication of the final

rule. However, since the effective date

of the law was January 1, 1995, the

labeling statements required by the act

must appear on the principal display

panel of product packages in advance of

publication of the final rule. In

recognition of this fact, packages with

labels lithographed or printed before the

effective date of the rule may be used for

a period of up to six months after the

effective date if they display the specific

statements prescribed in the statute on

the principal display panel in a manner
10752 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

that is generally conspicuous. This

approach will permit packages

containing labeling that may not meet

some of the more technical aspects of

the rule, but are in substantial

compliance with the requirements of the

law, to be exhausted. It will also save

the unnecessary expense associated

with destroying such packaging,

without compromising safety.

C. Impact on Small Businesses

In accordance with section 3(b) of the

Regulatory Flexibility Act, 5 U.S.C.

605(b), the Commission certifies that

this regulation will not have a

significant economic impact upon a

substantial number of small entities.

Any obligations imposed upon such

entities arise under the express

provisions of section 24 of the FHSA.

This regulation simply clarifies the

obligations imposed by that law on

certain toys, games, balloons, marbles,

and balls. The regulation itself,

therefore, will have no significant

economic impact on small businesses,

either beneficial or negative, beyond

that which results from the statutory

provisions.

D. Environmental Considerations

The proposed rule falls within the

provisions of 16 C.F.R. 1021.5(c) which

designates categories of actions

conducted by the Consumer Product

Safety Commission that normally have

little or no potential for affecting the

human environment. The Commission

does not believe that the rule contains

any unusual aspects which may

produce effects on the human

environment, nor can the Commission

foresee any circumstance in which the

rule proposed below may produce such

effects. For this reason, neither an

environmental assessment nor an

environmental impact statement is

required.

List of Subjects in 16 CFR Part 1500

Business and industry, Consumer

protection, Hazardous materials, Infants

and children, Labeling, Packaging and

containers.

E. Conclusion

Therefore, pursuant to the authority of

the Child Safety Protection Act of 1994

(Pub. L. 103–267), sections 10(a) and

24(c) of the Federal Hazardous

Substances Act, (15 U.S.C. 1269(a) and

1278(c)), and 5 U.S.C. 553, the

Consumer Product Safety Commission

amends Title 16 of the Code of Federal

Regulations, Chapter II, Subchapter C,

Part 1500 as set forth below.

Part 1500—HAZARDOUS

SUBSTANCES AND ARTICLES;

ADMINISTRATION AND

ENFORCEMENT REGULATIONS

1. The authority for Part 1500 is

revised to read as follows:

Authority: 15 U.S.C. 1261–1278, 2079.

2. Section 1500.18 is amended by

revising paragraph (a) introductory text

and adding paragraph (a)(17) to read as

follows:

§ 1500.18 Banned toys and other banned

articles intended for use by children.

(a) Toys and other articles presenting

mechanical hazards. Under the

authority of sections 2(f)(1)(D) and 24 of

the act and pursuant to the provisions

of section 3(e) of the act, the

Commission has determined that the

following types of toys or other articles

intended for use by children present a

mechanical hazard within the meaning

of section 2(s) of the act because in

normal use, or when subjected to

reasonably foreseeable damage or abuse,

the design or manufacture presents an

unreasonable risk of personal injury or

illness:

* * * * *

(17) Any ball intended for children

under three years of age that, under the

influence of its own weight, passes, in

any orientation, entirely through a

circular hole with a diameter of 1.75

inches (44.4 mm.) in a rigid template 1⁄4

inches (6 mm.) thick. In testing to

evaluate compliance with this

paragraph, the diameter of opening in

the Commission’s test template shall be

no greater than 1.75 inches (44.4 mm.).

(i) For the purposes of this paragraph,

the term ‘‘ball’’ includes any spherical,

ovoid, or ellipsoidal object that is

designed or intended to be thrown, hit,

kicked, rolled, dropped, or bounced.

The term ‘‘ball’’ includes any spherical,

ovoid, or ellipsoidal object that is

attached to a toy or article by means of

a string, elastic cord, or similar tether.

The term ‘‘ball’’ also includes any multisided object formed by connecting

planes into a generally spherical, ovoid,

or ellipsoidal shape that is designated or

intended to be used as a ball, and any

novelty item of a generally spherical,

ovoid, or ellipsoidal shape that is

designated or intended to be used as a

ball.

(ii) The term ‘‘ball’’ does not include

dice, or balls permanently enclosed

inside pinball machines, mazes, or

similar outer containers. A ball is

permanently enclosed if, when tested in

accordance with 16 CFR 1500.52, the

ball is not removed from the outer

container.

(iii) In determining whether such a

ball is intended for use by children

under three years of age, the criteria

specified in 16 CFR 1501.2(b) and the

enforcement procedure established by

16 CFR 1501.5 shall apply.

* * * * *

3. A new section 1500.19 is added, to

read as follows:

§ 1500.19 Misbranded toys and other

articles intended for use by children.

(a) Definitions. For the purposes of

this section, the following definitions

shall apply.

(1) Ball means a spherical, ovoid, or

ellipsoidal object that is designed or

intended to be thrown, hit, kicked,

rolled, dropped, or bounced. The term

‘‘ball’’ includes any spherical, ovoid, or

ellipsoidal object that is attached to a

toy or article by means of a string,

elastic cord, or similar tether. The term

‘‘ball’’ also includes any multi-sided

object formed by connecting planes into

a generally, spherical, ovoid, or

ellipsoidal shape that is designated or

intended to be used as a ball, and any

novelty item of a generally spherical,

ovoid, or ellipsoidal shape that is

designated or intended to be used as a

ball. The term ‘‘ball’’ does not include

dice, or balls permanently enclosed

inside pinball machines, mazes, or

similar outer containers. A ball is

permanently enclosed if, when tested in

accordance with 16 CFR 1500.53, it is

not removed from the outer container.

(2) Small ball means a ball that, under

the influence of its own weight, passes,

in any orientation, entirely through a

circular hole with a diameter of 1.75

inches (44.4 mm.) in a rigid template 1⁄4

inches (6 mm.) thick. In testing to

evaluate compliance with this

regulation, the diameter of opening in

the Commission’s test template shall be

no greater than 1.75 inches (44.4 mm.).

(3) Latex balloon means a toy or

decorative item consisting of a latex bag

that is designed to be inflated by air or

gas. The term does not include

inflatable children’s toys that are used

in aquatic activities such as rafts, water

wings, swim rings, or other similar

items.

(4) Marble means a ball made of a

hard material, such as glass, agate,

marble or plastic, that is used in various

children’s games, generally as a playing

piece or marker. The term ‘‘marble’’

does not include a marble permanently

enclosed in a toy or game. A marble is

permanently enclosed if, when tested in

accordance with 16 CFR 1500.53, it is

not removed from the toy or game.

(5) Small part means any object

which, when tested in accordance with

the procedures contained in 16 CFR
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10753

1501.4(a) and 1501.4(b)(1), fits entirely

within the cylinder shown in Figure 1

appended to 16 CFR part 1501. The use

and abuse testing provisions of 16 CFR

1500.51 through 1500.53 and

1501.4(b)(2) do not apply to this

definition.

(6) Package or packaging refers to the

immediate package in which a product

subject to labeling under section 24 of

the act is sold, as well as to any outer

container or wrapping for that package.

(7) Descriptive material means any

discrete piece of written material

separate from the label of the package

that contains an instruction (whether

written or otherwise) for the use of a

product subject to these labeling

requirements, any depiction of the

product, and any written material that

specifically describes any function, use,

warnings, user population, design or

material specification, or other

characteristic of the product. A catalog

or other marketing material or

advertisement that depicts other

products in addition to the product it

accompanies is not ‘‘descriptive

material’’ unless it contains additional

information, such as instructions for use

of the product it accompanies or lists of

accessories exclusively for use with that

product, that are designed to focus the

purchaser’s attention on the product.

Descriptive material ‘‘accompanies’’ a

product subject to the labeling

requirements when it is packaged with

the product or when it is intended to be

distributed with the product at the time

of sale or delivery to the purchaser.

‘‘Descriptive material’’ does not include

statements that appear on the package of

a product subject to the labeling

requirements. ‘‘Descriptive material’’

does not include material intended

solely for use by children if the package

it accompanies contains a separate

package insert prominently identified as

a warning for parents that contains the

required precautionary statements.

(8) Bin and container for retail display

mean containers in which multiple

unpackaged and unlabeled items are

held for direct selection by and sale to

consumers.

(b) Misbranded toys and children’s

articles. Pursuant to sections 2(p) and 24

of the FHSA, the following articles are

misbranded hazardous substances if

their packaging, any descriptive

material that accompanies them, and, if

unpackaged and unlabeled, any bin in

which they are held for sale, any

container in which they are held for

retail display, or any vending machine

from which they are dispensed, fails to

bear the labeling statements required in

paragraphs (b) (1) through (4) and

paragraph (f)(3) of this section, or if

such labeling statements fail to comply

with the prominence and

conspicuousness requirements of

paragraph (d) of this section.

(1) With the exception of paper

products such as punch-out games and

similar items, any toy or game that is

intended for use by children who are at

least three years old but less than six

years of age shall bear or contain the

following cautionary statement if the toy

or game includes a small part:

BILLING CODE 6355–01–P

BILLING CODE 6355–01–C

(2) Any latex balloon, or toy or game

that contains a latex balloon, shall bear

the following cautionary statement:

BILLING CODE 6355–01–P

(3)(I) Any small ball intended for children three years of age or older shall bear the following cautionary statement:

BILLING CODE 6355–01–P
10754 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

BILLING CODE 6355–01–P

(ii) Any toy or game intended for children who are at least three years old but less than eight years of age that

contains a small ball shall bear the following cautionary statement:

BILLING CODE 6355–01–P

BILLING CODE 6355–01–C

(4)(i) Any marble intended for children three years of age or older shall bear the following cautionary statement:

BILLING CODE 6355–01–P

BILLING CODE 6355–01–C
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10755

(ii) Any toy or game intended for

children who are at least three years old

but less than eight years of age that

contains a marble shall bear the

following cautionary statement:

BILLING CODE 6355–01–P

BILLING CODE 6355–01–C

(c) Age of intended user. In

determining the ages of the children for

which any toy or article subject to this

section is intended, the following

factors are relevant: the manufacturer’s

stated intent (such as the age stated on

a label) if it is reasonable; the

advertising, marketing, and promotion

of the article; and whether the article is

commonly recognized as being intended

for children in this age group. In

enforcing this provision, the

Commission will follow the procedures

set forth in 16 CFR 1501.5.

(d) Prominence and conspicuousness

of labeling statements. The

requirements of 16 CFR 1500.121

relating to the prominence and

conspicuousness of precautionary

labeling statements for hazardous

substances shall apply to any labeling

statement required under § 1500.19(b)

and (f), with the following clarifications

and modifications.

(1) All labeling statements required by

§ 1500.19(b) and (f) shall be in the

English language. The statements

required by paragraph (b) need not

appear in the format and layout

depicted in paragraph (b). The

statements required by 16 CFR

1500.19(b) and (f) shall be blocked

together within a square or rectangular

area, with or without a border. This

means that the statements must appear

on at least two lines. The statements

shall be separated from all other graphic

material by a space no smaller than the

minimum allowable height of the type

size for other cautionary material (e.g.,

the phrase ‘‘Not for children under 3

yrs.’’). If not separated by that distance,

the labeling statements must be

surrounded by a border line. Label

design, the use of vignettes, or the

proximity of other labeling or lettering

shall not obscure or render

inconspicuous any labeling statement

required under § 1500.19(b) and (f). This

means that such statements shall appear

on a solid background, which need not

differ from the background color or any

other color on the package label.

(2) The words ‘‘WARNING’’ or

‘‘SAFETY WARNING’’ required by

section 24 of the FHSA shall be

regarded as signal words.

(3) The statement ‘‘CHOKING

HAZARD’’ shall be regarded as a

statement of the principal hazard

associated with the products subject to

this section.

(4) All other remaining statements

required by this section shall be

regarded as ‘‘other cautionary material’’

as that term is defined in 16 CFR

1500.121(a)(2)(viii).

(5) The principal display panel for a

bin, container for retail display, or

vending machine shall be the side or

surface designed to be most prominently

displayed, shown, or presented to, or

examined by, prospective purchasers. In

the case of bins or containers for retail

display, the cautionary material may be

placed on a display card of a reasonable

size in relationship to the surface area

of the bin or container. The area of the

display card shall constitute the area of

the principal display panel. In the case

of vending machines that contain a

display card, the cautionary label may

be placed either on the display card, on

the coinage indicator decal, or on the

glass or clear plastic of the machine. If

there is no display card inside a vending

machine, the size of the principal

display panel will be calculated in

accordance with 16 CFR 1500.121(c)

based on the size of the front of the

container from which items are

dispensed, exclusive of the area of metal

attachments, coin inserts, bases, etc.

Any other side or surface of such a bin,

container for retail sale, or vending

machine that bears information, such as

price or product description, for

examination by purchasers shall be

deemed to be a principal display panel,

excluding any side or surface with

information that only identifies the

company that owns or operates a

vending machine.

(6) All of the labeling statements

required by this section, including those

classified as ‘‘other cautionary

material,’’ must appear on the principal

display panel of the product, except as

provided for by § 1500.19(f). Any signal

word shall appear on the same line and

in close proximity to the triangle

required by section 24 of the act.

Multiple messages should be provided

with sufficient space between them,

when feasible, to prevent them from

visually blending together.

(7) All labeling statements required by

this section shall comply with the

following type size requirements. 16

CFR 1500.121(c)(1) explains how to

compute the area of the principal

display panel and letter height.

Area sq. in .......................................... 0–2 +2–5 +5–10 +10–15 +15–30 +30–100 +100–400 +400

Type Size ........................................... ................. ................. ................. ................. ................. ................. ................. .................

Sig. Wd ............................................... 3⁄64′′ 1⁄16′′ 3⁄32′′ 7⁄64′′ 1⁄8′′ 5⁄32′′ 1⁄4′′ 1⁄2′′

St. Haz ................................................ 3⁄64′′ 3⁄64′′ 1⁄16′′ 3⁄32′′ 3⁄32′′ 7⁄64′′ 5⁄32′′ 1⁄4′′

Oth. Mat ............................................. 1⁄32′′ 3⁄64′′ 1⁄16′′ 1⁄16′′ 5⁄64′′ 3⁄32′′ 7⁄64′′ 5⁄32′′

(8) Labeling required by this section

that appears on a bin, container for

retail display, or vending machine shall

be in reasonable proximity to any

pricing or product information

contained on the principal display
10756 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

panel, or, if such information is not

present, in close proximity to the article

that is subject to the labeling

requirements.

(9) Descriptive material that

accompanies a product subject to the

labeling requirements, including

accompanying material subject to the

alternative allowed by § 1500.19(f), shall

comply with the requirements of 16 CFR

1500.121(c)(6) relating to literature

containing instructions for use which

accompanies a hazardous substance. If

the descriptive material contains

instructions for use, the required

precautionary labeling shall be in

reasonable proximity to such

instructions or directions and shall be

placed together within the same general

area (see 16 CFR 1500.121(c)(6)).

(10) In the case of any alternative

labeling statement permitted under

§ 1500.19(e), the requirements of 16 CFR

1500.121(b)(3) and 1500.121(c)(2)(iii)

shall apply to statements or indicators

on the principal display panel directing

attention to the complete cautionary

labeling that appears on another display

panel.

(11) Any triangle required by this

section shall be an equilateral triangle.

The height of such a triangle shall be

equal to or exceed the height of the

letters of the signal word ‘‘WARNING’’.

The height of the exclamation point

inside the triangle shall be at least half

the height of the triangle, and the

exclamation point shall be centered

vertically in the triangle. The triangle

shall be separated from the signal word

by a distance at least equal to the space

occupied by the first letter of the signal

word. In all other respects, triangles

with exclamation points shall conform

generally to the provisions of 16 CFR

1500.121 relating to signal words.

(e) Combination of labeling

statements. The labels of products that

contain more than one item subject to

the requirements of this section may

combine information relating to each of

the respective hazards, if the resulting

condensed statement contains all of the

information necessary to describe the

hazard presented by each article.

However, in the case of a product that

contains a balloon and another item

subject to the labeling requirements,

only the signal word and statement of

hazard may be combined.

(f) Alternative labeling statements for

small packages. Any cautionary

statement required by section 1500.19(b)

may be displayed on a display panel of

the package of a product subject to the

labeling requirement other than the

principal display panel only if:

(1) The package has a principal

display panel of 15 square inches or

less,

(2) The full labeling statement

required by paragraph (b) of this section

is displayed in three or more languages

on another display panel of the package

of the product, and

(3)(i) In the case of a toy or game

subject to § 1500.19(b)(1), a small ball

subject to § 1500.19(b)(3), a marble

subject to § 1500.19(b)(4), or a toy or

game containing such a ball or marble,

the principal display panel of the

package bears the statement:

BILLING CODE 6355–01–P

BILLING CODE 6355–01–C

and bears an arrow or other indicator

pointing toward or directing the

purchaser’s attention to the display

panel on the package where the full

labeling statement appears, or

(ii) In the case of a balloon subject to

§ 1500.19(b)(2) or a toy or game

containing such a balloon, the principal

display panel bears the statement:

BILLING CODE 6355–01–P

BILLING CODE 6355–01–C

and bears an arrow or other indicator

pointing toward or directing the

purchaser’s attention to the display

panel on the package where the full

labeling statement appears.

(g) Alternative for products

manufactured outside the United States.

In the case of a product subject to the

labeling requirements of § 1500.19(b)

which is manufactured outside the

United States and is shipped directly

from the manufacturer to the consumer

by United States mail or other delivery

service in an immediate package that

contains descriptive material, the

descriptive material inside the

immediate package of the product need

not bear the required labeling statement

only if the shipping container of the

product contains other accompanying

material that bears the required

statements displayed in a prominent

and conspicuous manner. Products

shipped from abroad to a U.S. affiliate

for shipment to consumers are included

within the scope of this exception.

(h) Preemption. Section 101(e) of the

Child Safety Protection Act of 1994

prohibits any state or political

subdivision of a state from enacting or

enforcing any requirement relating to

cautionary labeling addressing small

parts hazards or choking hazards

associated with any toy, game, marble,

small ball, or balloon intended or

suitable for use by children unless the

state or local requirement is identical to

a requirement established by section 24

of the FHSA or by 16 CFR 1500.19.

Section 101(e) allows a state or political

subdivision of a state to enforce a nonidentical requirement relating to

cautionary labeling warning of small

parts hazards or choking hazards

associated with any toy subject to the

provisions of section 24 of FHSA until

January 1, 1995, if the non-identical

requirement was in effect on October 2,

1993.

Dated: February 17, 1995.

Sadye E. Dunn,

Secretary, Consumer Product Safety

Commission.

[FR Doc. 95–4484 Filed 2–24–95; 8:45 am]

BILLING CODE 6355–01–P