Loopholes in Product Safety Law Put Compliance Burden on You

You sell a product to a Little League for distribution to seven year olds.  Would your client expect the product to comply with Federal children’s product standards?

The answer, I suspect, is a resounding “yes” just as you would expect the toys you buy for your own kids to be able to pass the Federal Toy Safety Standard and the food you purchase to be able to pass FDA food standards.

Unfortunately for the promotional products industry, things are not that simple.  The Consumer Product Safety Improvement Act (CPSIA) – the Federal law that governs children’s products – includes a basic definition for children’s products that is ambiguous at best.  The agency that enforces this Act, the Consumer Products Safety Commission (CPSC), came up with an enhanced definition that introduces new issues as it tries to clarify the original.  Take the case of a simple water bottle destined for a second grade Little League team.  If the name of the team is imprinted in a plain type style the bottle is considered a general use item – not a children’s product – because CPSC says it appeals to all ages including the 7 year old Little Leaguers.   Most importantly, general use items don’t have to comply with children’s product standards.   But the identical water bottle decorated with a Winnie the Pooh type character – something that would only appeal to the young children – is considered a children’s product and has to comply with the CPSIA standards.  Same bottle.  Same kids.  Different decoration.  One has to comply, one doesn’t.

Say that your order was for the plain type version – the one that doesn’t have to comply with CPSIA.  And say that the plastic lid of the bottle you sell the Little League happens to contain 1,000 parts per million (ppm) of lead – 10 times the CPSIA limit for children’s products.  Now imagine that some consumer advocacy group gets hold of one of those bottles, tests it and then tells the league it intends to send a press release to the media that Little League is distributing lead-laden bottles to seven year olds.  Do you think the league administrators or the parents would be comforted or placated by your explanation that the product is a general use item that doesn’t have to comply with children’s product standards?  Not likely.

One reason for these challenges in our industry is that most promotional products are not “children’s products” as blank, undecorated products.  Non-children’s blanks only become children’s products if they are decorated with a juvenile design and even then only if the products are “mainly” for children 12 and under and have declining appeal to older kids.

Suppliers deal with this blanks-that-could-become-children’s-products challenge individually.  Some test all of their products to children’s product standards, some indicate on their websites the specific products which have been tested and for some you may have to make a call to find out which products are compliant and have been tested.    The most important point is that the burden is on you to find this information out before you place your order, to avoid selecting a product which has not been tested as compliant.

In summary, when kids are part of the audience for the products you sell, my advice is to ignore the loopholes in CPSIA and insist on choosing products that have been tested by a third party lab as compliant with children’s product regulations.    Just keep reminding yourself, “If children are involved, would my client expect the products I’m recommending to have been tested to children’s product standards?”  Let that be your guide and you’ll never go wrong.

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