Last week, the Consumer Product Safety Commission published its final rule on the definition of a children's product, three months after soliciting and receiving input from dozens of stakeholders, including the Handmade Toy Alliance.
This was an opportunity for the CPSC to listen to voices of hundreds of businesses affected by the CPSIA. It was a chance to reduce the law's sweeping impact on thousands of children's products which have never posed any safety risk, including school learning materials, music CDs, riding saddles, and craft tools. This definition is incredibly important because any product which is defined as a children's product is subject to expensive third party lab testing for lead and other elements which does not apply to general use consumer products. All the CPSC had to do was to state clearly that certain classes of products are, by definition, not children's products.
Instead, the CPSC chose to ignore, disregard, or refute virtually every commentator's perspective and issued a 63 page document that does little to define a children's product and creates surging gulfs of ambiguity that threaten to drown entire businesses, especially small businesses who don't have access to teams of lawyers to explain the CPSC's reasoning.
In short, instead of taking the opportunity to create bright lines and clear definitions, the CPSC has created a world in which virtually any product may be considered a children's product depending on how it is decorated, where it is sold, and what consumers' perceptions are.
Under these rules, there is nothing that a manufacturer of a general use product can do to ensure that a product does not fall under the definition of a children's product, including stamping "Not for use by children," all over it or packaging it with a portable flame thrower. This means assuming coverage or facing ex post facto liability. A manufacturer of tools, for example, might have no idea that their product was repackaged by a retailer as part of a kid's tool kit, yet under these rules the manufacturer would still be liable for for third party testing.
That leaves every manufacturer at the mercy of where and how the product is sold (which they often have no control over), whether it appeals to a certain age group (which they often have no control over), how it is perceived by the public (which they have no control over), how it is used or misused by the consumer or their children (which they have no control over), entertainment industry ratings (which they have no control over) and the subjective judgment of the CPSC (which we obviously have no control over). All of the CPSC's "examples" of non-covered items are padded with counter-statements making them ambiguous.
None of this makes a single child more safe.
To highlight the absurdity of this document, consider how the CPSC will determine whether a music CD or DVD is a children's item:
“The...rule states that the CDs and DVDs with content intended for children younger than 4 years old were not determined to be children’s products because children younger than 4 are usually not allowed to use household digital media players. However, having defined use to mean physical interaction with the product, because DVDs and CDs and other digital media may be handled by older children to load and unload DVDs in their appropriate media devices, CDs and DVDs could be considered children’s products if such movies, video games, or music were specifically aimed at and marketed to children 12 years of age or younger and have no appeal to older audiences.”
In order words, a Baby Loves Mozart CD is not a children's product because it is marketed to children under 4 who are unable to operate a CD player, but a Dan Zanes CD is a children's product because it is marketed to children older than 4 but younger than 12.
Music labels will be forced to test each batch of CDs they make, which will be the death knell for independent children's music. Why would any label pay for such testing when they can stop publishing CDs altogether and sell exclusively via iTunes? How will the CPSC explain this to Pete Seeger, who was blacklisted by McCarthy in the 1950's only to have his right to publish children's music curtailed by the government in 2010?
In its wisdom, though, the CPSC had defined iPods, DVD players, CD Players, video game consoles etc., as general use items as long as they aren't decorated with children's themes or marketed to children, even though a child will be “interacting” with these devices much more than with a CD or DVD itself. This is reasoning reminiscent of Lewis Carroll.
We keep hoping that, at some point, the CPSIA will become more understandable and easier for small businesses to manage. Instead, the CPSC continues to add layers of ambiguity and confusion on top of an already overwhelming law. This latest document makes it abundantly clear that businesses who make children's products and the CPSC itself are not ready for enforcement of the third party testing requirement, which is scheduled to begin in five short months. It also makes it clear that Congress needs to correct its mistakes and reign in a safety law that's running amok. Congress has stalled on passing any type of real relief and that in and of itself has limited the CPSC’s ability to make better rulings on the CPSIA.
We keep expecting answers about the CPSIA, but between Congress and the CPSC, all we're getting is more questions.