HTA Comments on the Definition of a Children's Product under the CPSIA

The following is our letter to the CPSC regarding their definition of a Children's Product. This definition is important because products which are defined as general use products will not be subject to the same standards and 3rd party testing requirements as a children's product.

July 20, 2010
Office of the Secretary
Consumer Product Safety Commission
Room 502
4330 East-West Highway,
Bethesda, Maryland, 20814
http://www.regulations.gov


Re: Comments Regarding The Definition of a Children's Product Under the Consumer Product Safety Improvement Act (CPSIA) [Docket No. CPSC-2010-0029]

Dear Mr. Stevenson:

On behalf of the Handmade Toy Alliance, an alliance now numbering 442 toy stores, toymakers and children's product manufacturers from across the country who want to preserve unique handmade toys, clothes, and children's goods in the USA, we respectfully submit the following comments regarding the CPSC's definition of a children's product under the CPSIA.

The CPSC and Congressional leadership from both parties have openly acknowledged that the broad sweep of the CPSIA has created unintended consequences for products and industries which had nothing to do with the toy and jewelry safety scare of 2007. We believe that the Commission's task in defining what constitutes a children's product is an important opportunity for the Commission to address and repair some of these unintended consequences and provide relief for several industries whose products have been placed under a cloud of uncertainty and potentially overwhelming costs by the CPSIA.

Although the Commission's draft definition provides helpful and needed relief for several categories of goods, particularly décor, we feel that the Commission should be much more specific in the types of products which will not be considered children's products. We would like to suggest a number of areas where more specificity is needed.

Under the category of Art Materials, the draft definition states: “Crafting kits and supplies that are not specifically marketed to children 12 years of age or younger would likely be considered products intended for general use.” while simultaneously stating that “Materials sized, decorated, and marketed to children 12 years of age or younger...would be considered children's products.” We feel that this emphasis on marketing will lead to contradictions, misunderstandings, and needless compliance costs. The Commission should instead focus on the intended function of a product and the context in which it will be used.

Under the proposed marketing-based framework, for example, the same pair of small knitting needles would be considered a general use product or a children's product depending only upon how they are packaged. It goes against reason to argue that the same product either does or does not require extensive testing based on the type of label it uses, especially when craft stores often sell these products side by side and consumers can easily substitute one for the other.

The importance of this issue was illustrated by one of members, Eric Vought of The Misty Manor, Mercers in Missouri, who manufactures fiber art tools:

We still have questions on the status of many of our products. We operate a fiber farm...But the real trouble spot is that we produce craft tools and educational materials for many of our crafts. For instance, we sell Learn-to-Spin kits consisting of a drop spindle, fiber, and instructions. We also produce Learn-to-Knit kits, tools for weaving and so forth. These products are not targeted at children, but certainly (older) children, parents, and teachers are among those who purchase them. We have no way of knowing the use for which the kits are intended and we make the products, often from recycled materials, specifically to encourage people to try learning a craft before spending a lot of money on expensive tools...Certainly, these are not intended as 'toys' but we would like a clear statement that they are not covered and that we do not need to send reusable materials to the landfill out of fear that someone will chew on them. As written, the CPSIA's broad age range potentially covers an enormous variety of non-toy products.

A more compelling and logical framework is to consider the circumstances under which a child will be using a product. There are hundreds of art and craft supplies which are designed for children, but are intended for instructional purposes under the supervision of an adult. We believe that such instructional products should be regulated as general use products and not as children's products.

Under this framework, we believe the following products should be specifically defined by the Commission as general use products:

• Child-sized craft tools such as knitting needles, child-sized looms, drop spindles, corking tools, leatherworking tools, sewing needles, woodworking tools, etc. Tools that could also be used by an adult and which are meant to be used under adult instruction for the purpose of learning a craft should be considered general use products. Toy versions of these products which are meant for a child to use by themselves should be considered children's products.
  

• Child-sized musical instruments such as guitars, violins, flutes, clarinets, drums, etc., which are substantially similar to adult-sized instruments in everything except scale. These instruments are meant to be used by a child under the instruction of an adult at school or at home, are fully capable of holding a tune, and should be considered general use products. Toy versions of these instruments which are not designed for instructional use should be considered children's products.

• Child-sized saddles and equestrian equipment. Specially-made saddles for children are also used by adults with small stature and, when used by children, are only used under the direct supervision of an adult. They are almost always installed by an adult and should be considered a general use product.

• Classroom science kits which include general use items such as paper clips; rubber bands; electronic components such as resistors, capacitors, transistors, batteries, motors and wires; geological specimens; lenses, etc., which are sold for educational purposes and intended for use in schools or homeschools under the direct supervision of an adult should be considered general use products.

We are arguing that the context in which are product is meant to be used is more important than the packaging in determining whether it is a children's product or a general use product. We feel that an instructional product intended to be used by a child with the help of an adult poses far less risk than a product which is meant to be used by a child on his or her own. Furthermore, these products represent the core of our nation's hands-on learning structures. Learning crafts, music, and science will be made considerably more difficult and expensive if these instructional tools must be subject to the same rules as toys.

Music CDs

We would also like to change the Commission's approach to children's musical CDs, which are sold or distributed by several of our members. The Commission's proposal that “certain CDs and DVDs that contain content for very young children would not be handled or otherwise touched by children because they do not have the motor skills to operate media players and because such products, by themselves, do not have any appeal to children.” The Commision has proposed that such CDs would therefore not be considered children's products while a nearly identical CD encoded with music designed to appeal to an older child would be considered a children's product. Under this logic, a “Baby Loves Mozart” CD is not a children's product, but Dan Zanes album is.

This distinction is entirely false for two reasons. First, as any parent knows, an older child will only be allowed to handle a CD once he or she has learned to hold it by its edges so that it won't be scratched. In short, the child must learn how to touch a CD without actually interacting with it. Since they are not interacting with it, a CD should not be a children's product. Indeed, a child will interact much more with the CD player or computer which plays the CD (which the Commission has ruled to be a general use product) than he or she will with the CD itself.

Second, the Commission's proposed guidelines regarding CDs provide no clear mechanism for manufacturers and distributers to interpret or implement the definition. Children's music is not marketed like toys as “age 3+” or “suitable for under 3”. Any such distinctions in children's music would be entirely arbitrary and meaningless.

We strongly recommend that the commission define all CDs as general use items. Otherwise, the children's music industry, especially small independent labels, will face years of uncertainty and needless costs. Unless this is changed, independent children's music will no longer be published in CD form and will only be available through digital downloads. This would be no win for safety, but would certainly be a win for Microsoft and Apple.

Thank you again for taking the time to read and consider our comments.

Respectfully Submitted,

The Handmade Toy Alliance

A listing of all 442 business members of the Handmade Toy Alliance is available at . http://www.handmadetoyalliance.org/AllianceInfo/OurMembers.aspx