Industry News: CPSC Says Most Pens Not Likely Considered Children's Products


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Industry News: CPSC Says Most Pens Not Likely Considered Children's Products

Issue: 2009jun

The Consumer Product Safety Commission (CPSC) confirmed in a statement Monday that the vast majority of pens are not likely children’s products and would not be subject to related safety requirements under the Consumer Product Safety Improvement Act (CPSIA) requirements.

Writing instruments are among the most popular promotional products, representing 9 percent of total industry sales.

“We are very pleased by the CPSC's commentary and consider it to be a positive result for our industry. Once again, the CPSC is exhibiting a reasonable approach to implementing the CPSIA,” says Steve Slagle, CAE, president and CEO of PPAI.

While the CPSC denied the request to grant an exclusion or stay of enforcement for product safety regulations, it was confirmed that a “general purpose” pen would not need exclusion from the lead limits because such pens are not “children’s products,” according to a statement issued by Cheryl A. Falvey, general counsel for the CPSC.

The Commission's commentary notes that the vast majority of pens and roller ball writing instruments are not primarily intended for children, whether or not they are sold for use in schools.

The commentary addresses a formal request that pen point components be excluded from compliance with Section 101 of the CPSIA. The request was jointly filed by the Writing Instrument Manufacturers Association (WIMA) and PPAI.

The CPSIA makes significant changes to consumer product safety laws and gives the CPSC significant new responsibilities for ensuring the safety of consumer products. Without a well-defined means of application based on sound test standards and science-based exclusions that protect children, the threat to this industry is considered significant.

“In March, we met with Falvey and other CPSC staff to share some of the challenges and concerns unique to the promotional products industry," says Slagle. “At that time we noted that the language of the law assumes situations in which it is clear when a product is intended for children. However, in the promotional products industry, some products that are not designed or intended primarily for use by children 12 and under may be decorated in a way that may make a product appear to be intended for children. What prevails, the intent or the characteristics of the product?”

Monday's ruling should be of interest not only to pen and writing instrument suppliers but to the industry at large because it offers guidance as to what constitutes a children’s product. In this ruling, the CPSC adheres to a strict interpretation of the phrase “intended primarily for children under the age of 12.”

Industry practitioners are urged to take the required actions to make sure their products do not fall in that narrow range of “intended primarily for…” as defined by the CPSC and should consider the following when determining if a consumer product is designed or intended primarily for children:

• A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.
• Whether the product is represented in its packaging, display, promotion or advertising as appropriate for use by children 12 years of age or younger.
• Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.
• The Age Determination Guidelines issued by the CPSC staff in September 2002 and any successor to such guidelines.

In the CPSC commentary, Falvey confirms that “even if a pen were colorful, decorated or embellished, such colors, decorations or embellishments, alone, might not result in a ‘children’s product.’

"For example, a simple ballpoint stick pen with the name of an elementary school embossed on it without any other decorations would appeal to anyone...connected with the school. Just because an ordinary ball point pen might be marketed once a year as a back-to-school item does not convert that pen from a general purpose item to a children’s product under the CPSIA," she says.

In summary, “only pens that are ‘children’s products’--rather than all pens--are required by the commission to be evaluated further to assess whether they contain lead above the lead content limits…general use pens…including those that are sold to school systems and retailers…would not be subject to the lead limits and testing and certification requirements of the CPSIA.”

To see the entire text of the CPSC General Counsel’s letter and to learn more about this commentary and its effect on the promotional products industry, visit PPAI's Product Safety page.

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