Is it a toy? We may find out soon.

Think you know a toy when you see one?  We should soon find out if the Consumer Product Safety Commission agrees with you.

At last month’s PPAI Product Safety Summit in Denver, CPSC Director of Regulatory Enforcement Mary Toro told attendees that the Commission is working on new guidance regarding toys.   The implication for suppliers in the promotional products industry is significant – whether “executive toys” like stress relievers, puzzles and desktop games will fall under the CPSIA toy definition.  If these products do fall under CPSIA, the law requires that they undergo much more expensive testing than other children’s products.

Ever since the Consumer Product Safety Improvement Act (CPSIA) was signed into law by President Bush in August 2008 there has been controversy about the definitions that Congress wrote into the Act for children’s products and for toys.  For children’s products Congress said that the product had to be “intended primarily for children 12 years of age or younger.”   For toys, Congress left out the word primarily stating simply that “the term children’s toy means 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.”

In September 2008, at the first public meeting CPSC held after the law was enacted, I posed a question to CPSC senior staffers about executive toys and specifically about stress relievers.  Another attendee asked about an executive basketball hoop that mounts on the back of an office door and is distributed as a free gift with Quervo tequila. Neither one of these examples is sold for  young kids, particularly the liquor promotion.   Cheryl Falvey, the chief legal counsel for CPSC, said that the staff would have to consider these questions carefully but noted that because Congress didn’t say they had to be primarily for 12 and under that it would be difficult question.  She also added, “..as a mother I can tell you that it’s likely they’ll end up at home in the toy box.”

More than a year later, at an ICPHSO product safety conference in February 2010, I again posed the same question to Ms. Falvey. She noted that the Commission was working on a new guidance document to help clarify the ambiguities surrounding the term children’s product.  That document, entitled Final Interpretive Rule on Definition of Children’s Products, was released later that year and approved by the Commission in September 2010.  But while it provided guidance on how to determine if a product is a “children’s product” under CPSIA, it didn’t answer the open questions about toys – and particularly about executive toys.

What’s at stake?   Potentially tens of thousands of dollars per year in third party testing for suppliers who have executive toys in their line.   For children’s products, CPSIA requires third party lead testing – relatively inexpensive tests that are usually no more than $50 and sometimes much less.  But for children’s toys, the Act requires more. Toys must comply with the many provisions of a 67 page Toy Safety Standard known as ASTM F963.  This used to be a voluntary standard but in CPSIA Congress made it mandatory. In addition, toys cannot contain more than .1 percent of six different phthalates.   ASTM F963 testing and phthalate testing are not inexpensive like lead tests. F963 testing runs upwards of $500 for a single toy and phthalate testing can be even more.  We typically budget at least $1,500 per toy for testing.

To be sure, there are many suppliers who will commission ASTM F963 testing even if their executive toys are not covered by CPSIA, Prime included.  The toy safety standard includes many tests that confirm the quality and integrity of a product – drop tests, sharp edges, choke hazard, material quality, etc.  But for products marketed primarily to adults, it will give much more flexibility to the industry if suppliers have the choice on a product by product basis to conduct their own risk analysis and determine what to test rather than a government mandate.  Hopefully the Commission will feel the same way.

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