The US Consumer Product Safety Commission (CPSC) published a Final Rule (FR) concerning the advertising of certain toys and games in catalogs and other printed material. Pursuant to the FR, which was promulgated under the authority of the Consumer Product Safety Improvement Act of 2008 (CPSIA), warning statements regarding choking hazards that are currently required to appear on the packaging for certain toys and games, as well as balloons, small balls, and marbles, must also appear in, or adjacent to, advertisements for these items when the advertisement provides a “directs means” for purchasing or ordering the product. Advertising that provides a direct means of ordering a product include catalogs or other printed advertising material that contain order blanks, telephone numbers, or fax numbers for placing orders, and Interest Web sites that enable consumers to purchase a product online or through the use of a telephone or fax number provided on the Internet Web site. A summary of the FR follows.   

Formatting Requirements

The required warnings must be prominently displayed in the primary language used in the advertisement, in conspicuous and legible type in contrast by typography, layout, or color with other material printed or displayed in the advertisement, and in a manner consistent with the formatting requirements set forth at 16 CFR § 1500. The type-size used for an abbreviated warning, however, is only required to be “reasonably related” to the type-size of any other printed matter in the product advertisement. 

Abbreviated Warnings/Labeling Allowances

Abbreviated versions of the required warnings may be used in place of the full warning statement for advertisements appearing in catalogs and printed materials. When an abbreviated warning is used, it must be linked to the corresponding full warning by a statement at the bottom of the page on which the abbreviated warning appears (e.g., “full warning can be found on page__”). In addition, the full text warning must appear either (i) near the beginning of the catalog in front of any product advertisements or (ii) adjacent to the ordering information in the catalog. 

Abbreviated warnings must be formatted in accordance with the requirements established in the FR. For example, an abbreviated warning regarding a “choking hazard” must include the following information, printed from left to right: (i) the triangular “safety alert” symbol; (ii) the phrase “CHOKING HAZARD” written in capital letters; (iii) certain numbers, separated by commas and enclosed within a single set of parentheses, that identify the appropriate full warning(s) applicable to the advertisement and correspond to a chart included in the FR; and (iv) a single prohibited age range (e.g., “Not for under 8 yrs”.).  An example of a properly formatted abbreviated warning for a choking hazard follows below:    

The FR also permits advertisers to use a single, full warning statement in catalogs and printed materials in place of multiple, identical, full or abbreviated warnings when all the products available for purchase in the catalog require the same warning. When a single full warning is used for this purpose, it must be printed on the front cover of the catalog or in an equally conspicuous location. In addition, a statement must be included in the catalog to inform consumers that the warning applies to all products in the catalog. Further, in cases where all product advertisements on one page, or two facing pages, require the same warning, the required full warning may be printed at the top of the page(s) in lieu of repeating the warning in each product advertisement. Again, a statement must be included to inform consumers that the warning applies to all products listed on the page(s).    

Catalog Grace Period

CPSC adopted a grace period of 180 days, or until August 9, 2009, during which catalogs and other printed materials printed prior to February 10, 2009 may be distributed without cautionary statements. All catalogs and other printed materials that are published on or after February 10, 2009, however, must comply with the advertising warning requirements contained in the FR. In addition, all catalogs and other printed materials distributed on or after August 9, 2009 must comply with the FR.

Internet Advertising

Although not addressed in the FR, the CPSIA requires advertisements on Internet Web sites that provide a direct means of purchasing toys and games to include the same advertising warnings that are required for catalogs and other printed materials by December 12, 2008. As with catalogs and printed materials, the required warnings must be prominently displayed in the primary language used in the advertisement and in a manner consistent with the formatting requirements set forth at 16 CFR § 1500. 

Business to Business Catalogs

Catalogs and other printed materials distributed solely between businesses are exempt from the advertising requirements. This exemption does not apply, however, to catalogs distributed to businesses, such as schools, churches and recreational facilities, that could be expected to use the catalogs to purchase products for children.

Should you have any questions regarding the FR, please contact any of the individuals below. 

Related Documents: 

• Final Rule: Labeling Requirement for Toy and Game Advertisements

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

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

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

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

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

James H. Hartten
hartten.james@arenfox.com
202.857.8983