The Consumer Product Safety Commission (CPSC) has issued for public comment a draft guidance document outlining the CPSC staff’s approach for determining which children’s products are subject to the phthalates restrictions under the Consumer Product Safety Improvement Act of 2008 (CPSIA). It also seeks additional information on how the approach could be applied to particular product classes.

Under the CPSIA, the manufacture or sale of any children’s toy or child care article that contains more than 0.1 percent (1000 parts per million (ppm)) of the phthalates DEHP, DBP, and BBP is now banned. The manufacture or sale of any children’s toy that can be placed in a child’s mouth or any child care article that contains more than 1000 ppm of the phthalates DINP, DIDP, and DnOP is also currently banned. Until the draft guidance is finalized, CPSC intends to focus its enforcement efforts on the products most likely to pose a risk of phthalates exposure to children, specifically, bath toys and other small, plastic toys (especially those made of polyvinyl chloride) that are intended for young children and can be put in the mouth. In addition, CPSC staff will sample teethers, rattles and pacifiers to confirm that manufacturers of those items continue their past voluntary practice of not using the phthalates that are now prohibited.

The draft guidance discusses how best to interpret the definitions of the three types of children’s products covered by the new phthalate restrictions: children’s toys, toys that can be put in the mouth, and child care articles.

Children’s toys

Section 108 of the CPSIA defines a children’s toy as a “consumer product designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays” and provides four criteria for determining whether a product is a children’s toy.1 In addition to these guidelines, CPSC proposes to adopt certain aspects of the definition of “toy” in ASTM’s Toy Safety Standard, F963-07. The Standard excludes from the definition of toy such products as bicycles, tricycles, playground equipment, art materials, model kits, hobby items, certain sporting goods and musical instruments, and powered models of vehicles. In line with the Standard, CPSC would exempt age-appropriate regulation baseball equipment or a child-sized violin, for example, but not toy versions of these products. It would also exempt ordinary books, even those for small children, but not plastic books for use in the bath, or books that make sounds.

Toys that can be placed in the mouth

The CPSIA defines a toy that can be placed in the mouth as one that can be sucked and chewed, or one that is less than 5 cm in any one dimension. CPSC believes that inflatable beach and pool toys are included in this definition, because they are commonly available to children in the deflated form. Products that are normally inflated by the manufacturer, such as regulation basketballs and soccer balls, would be excluded.

Child care articles

Determination of what constitutes a “child care article” provides the most extensive discussion in the draft guidance, and appears to be the definition most open to interpretation. The CPSIA defines a “child care article” as “a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething”, without defining the word “facilitate”.2 While products that are used directly by a young child for any of these purposes, such as teethers, pacifiers and crib teething rails, clearly fall within the definition, other products that have direct contact with a child during feeding or sleeping, such as bibs, feeding bottles, sipper cups, high chairs and baby blankets, are also considered child care articles. However, products that are not necessarily in direct contact with a child but are in close proximity during sleeping, such as mattresses and other parts of a crib, fall into a gray area that may or may not be covered by the phthalate ban. While swings and bouncers may help a child fall asleep, that is not their primary purpose, so they may be excluded. A normal stroller may also be excluded, while a reclining stroller, designed to help a child fall asleep, may not. Articles used in child care that are not associated with feeding, sleeping, teething or sucking, but only with bathing or diapering, for example, are not covered (but some may be covered as toys).

Food contact products such as infant bottles, cups and eating utensils are regulated by both the Food and Drug Administration and CPSC.  According to CPSC, these products will also be subject to the phthalate rule because they meet the definition of child care article. 

CPSC is soliciting public comments on its approach to the definition of these three types of children’s products, and is particularly interested in the public’s views as to whether certain products should qualify as toys or child care articles. Comments will be due within 30 days of publication of the draft guidance in the federal register.

Please contact any of the individuals below if you have any questions regarding CPSC’s draft guidance, of if you wish to discuss preparation of comments to CPSC on your behalf.

1 The criteria are as follows:
(1) Whether the intended use of the product is for play, including a label on the product if such statement is reasonable.
(2) Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by the ages specified.
(3) Whether the product is commonly recognized by consumers as being intended for use by a child of the ages specified.
(4) The Commission’s Age Determination Guidelines.

2 To determine whether a particular product is a “child care article”, CPSC staff will consider the following factors:
(1) Whether the intended use of the product is to facilitate sleeping, feeding, sucking, or teething, including a label on the product if such statement is reasonable.
(2) Whether the product is intended for use by children age 3 or younger.
(3) Whether the product facilitates sleeping, feeding, sucking, or teething directly to the child or indirectly through the parent/caregiver.
(4) Whether the product is commonly recognized by consumers as being intended to facilitate sleeping, feeding, sucking, or teething.

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

James R. Ravitz
ravitz.james@arentfox.com
202.857.8903

Scott A. Cohn
cohn.scott@arentfox.com
212.484.3984

Robert G. Edwards, PhD
edwards.robert@arentfox.com
202.857.6346

Amy S. Colvin
colvin.amy@arentfox.com
202.857.6338