kids and laptopsLast week the International Consumer Product Health and Safety Organization (ICPHSO) and ASTM International held a workshop to discuss the recently-updated age determination guidelines from the Consumer Product Safety Commission (CPSC). The age determination guidelines are a resource provided by the Commission to help manufacturers and consumers understand the age ratings on children’s products and toys and to ensure that products are properly labeled. CPSC staff perform age determinations on toy samples to determine the age group for whom the product is commonly recognized. The Commission then devises a categorical list of recommended age ratings. The recommended ratings are used by manufacturers and help determine the type and severity of tests products undergo to detect hazards prior to market release.

The workshop featured remarks from Acting Chairwoman Buerkle as well as other leadership from the Commission and key industry stakeholders. In her opening remarks, Acting Chairwoman Buerkle stressed the importance of receiving comments on the draft guidelines from the public and particularly from those engaged in the marketing and/or manufacture of children’s products and toys. These statements underscore the Chairwoman’s commitment to increasing CPSC’s engagement with the broad stakeholder community.

The draft guidelines released last month update the previous guidelines released in 2002. Since 2002, toy technology has evolved, introducing new types of toys into the market. Additionally, the drafters of the guidelines identify that consumers’ purchasing behavior and children’s access to toys have likely changed as well. The guidelines consist of four levels: play categories, toy subcategories, age groups, and toy characteristics. The play category level serves as the primary structure of the Guidelines and is organized into seven main groups. One play category in particular, “technology play,” accounts for the most significant technological development in toys: audiovisual and digital screen devices.

As part of the research process for updating the Guidelines, CPSC and the National Institute of Child Health and Human Development (NICHHD) conducted parent surveys to gather information about where parents obtain toys for their children and what they consider before giving toys to their children. These surveys indicated that parents rely on internet reviews as the primary source of information about toys. Additionally, 62 percent of respondents indicated that they view toy labels as only “somewhat accurate.” These results suggest that parents look to sources outside of manufacturer advertising. And importantly, these results indicate that the primary source of toy information is outside of CPSC influence. These survey responses suggest that even if the revised guidelines effectively restructure age determinations, this information may not be seen or trusted by consumers.

Not a Comprehensive Discussion

While the workshop was notable for the voices present and the discussion regarding the scope of the changes, perhaps the most notable takeaway was what issues were absent: namely, the issues of new technology, enforcement, and possible international issues.

While the expansion of the “technology play” category was addressed in passing, there was no substantive discussion of classifying emerging technology products such as virtual reality and artificial intelligence devices, advanced technology screen devices, or connected technological devices and toys. This is interesting given the how ubiquitous this technology is. In February, at the NY Toy Show, these “new and improved” toys were everywhere. And next month, the CPSC’s is hosting an entire hearing on Internet of Things (IoT) connected devices. Clearly, CPSC’s approach to the risk, and by extension age-appropriateness, of connected devices is still a work in progress. A more comprehensive approach may be warranted when dealing with these types of products. We have previously covered the upcoming hearing, identifying issues likely to be evaluated by the Commission’s review of connected devices. It will be interesting to see if the age appropriateness of certain devices as it relates to the safety of a product will be discussed at the IoT hearing.

Additionally, the workshop was silent on the issue of enforcement. Stakeholders were not given any indication of how these revised guidelines will be enforced. In particular, there was no discussion about potential solutions to ensure that age-rating information stays with the product once packaging is removed. This is an issue of importance given that the parent surveys indicated that a majority of toys are received as gifts or through second-hand means, indicating that parents often don’t have access to the toy packaging stating the age-rating information. The lack of discussion on solutions to combat this information gap implies that this, too, is on the CPSC’s list of tasks to tackle in the upcoming months. As part of the CPSC’s regulatory process, stakeholders now have an opportunity to comment on these revised guidelines. Those industry stakeholders that have real business experience with solving this problem by communicating the requisite information to consumers while not overly burdening business should provide such solutions to the CPSC as part of this process.

How Does this Affect International Cooperation?

The revised guidelines also present an interesting issue in relation to international cooperation. In February of this year, CPSC, the Department of Health of Canada, and the Consumer Protection Federal Agency of the United Mexican States signed a trilateral Memorandum of Understanding (MOU) committing to increase cross-border cooperation. The MOU intended to memorialize cooperative efforts already under way as well as to facilitate future joint activities, all with the goal of benefiting the flow of consumer products throughout North America.

Next month, CPSC, Health Canada, and the Consumer Protection Federal Agency of Mexico, will hold the 4th North America Consumer Product Safety Summit on May 4, 2018 at the CSPC’s headquarters in Bethesda. The goal of the Summit is to continue momentum in the trilateral cooperation among the three product safety regulators. Stakeholders should watch closely to see if issues around these proposed revised age guidelines are discussed because harmonization of standards and coordinated approaches to safety are key components of these types of discussions.

Next week, members of the Global Advertising Lawyers Alliance (GALA) will host a North American Consumer Product Safety Update webinar on Tuesday, April 24th at 1-2pm. The panel will discuss the upcoming Summit and other issues including: regulatory harmonization on various voluntary and mandatory guidance and standards issues, coordinating multi-jurisdictional recalls, cross-border enforcement efforts, and issues raised by new and emerging technology.

Venable has a team dedicated to consumer protection issues that is continuing to monitor these developments. If your business is potentially impacted by the revised age-grading guidelines, submitting comments on the draft guidelines is an excellent way to communicate your concerns to the Commission. The deadline to submit written comments is June 11, 2018. For more information on this or any other product safety-related issue, please contact our Consumer Product Safety team.