Have you ever questioned whether or not symbolic awards such as trophies, plaques and framed commemoratives must meet the requirements of the Consumer Product Safety Improvement Act (CPSIA)? This is a question many suppliers and distributors of symbolic awards are asking these days; for this and many other product categories associated with the CPSIA, there are no clear answers. That being said, understanding the Consumer Product Safety Commission’s interpretation of CPSIA rules can help provide a sound basis for making informed decisions when determining whether CPSIA regulations may or may not apply to a symbolic award based on a given situation.
It first helps to have a basic understanding of the CPSC’s Final Interpretation of a Children’s Product, now codified in 16 CFR 1200 of the CPSIA. This definition of a children’s product states, under section 3(a)(2) of the CPSIA, “a children’s product means a consumer product designed or intended primarily for children 12 years of age or younger. The term ‘designed or intended primarily’ applies to those consumer products mainly for children 12 years old or younger. Whether a product is primarily intended for children 12 years of age or younger is determined by considering the four specified statutory factors. These factors are:
(i) A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.
(ii) Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.
(iii) Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.
(iv) The Age Determination Guidelines issued by the Commission staff in September 2002 and any successor to such guidelines.”
The CPSIA also states, “The determination of whether a product meets the definition of a children’s product depends on factual information that may be unique to each product and, therefore, would need to be made on a case-by-case basis.”
The factors noted do not indicate an either/or scenario. For instance, “a statement by the manufacturer” that a product is not intended for children is not enough by itself to designate that the product is not intended for children. The remaining factors must also be taken into consideration.
In order to effectively use the criteria above in determining whether a product could be deemed a children’s product, we must look not only at the foreseeable use but also at the foreseeable misuse of the product by a child.
Product Intent And Use
Most of us, regardless of age, have received a symbolic award at some point. It may have been for winning a spelling bee, winning a league championship, achieving a professional honor or for simply participating in some activity. Whatever the reason, a symbolic award typically elicits a feeling of accomplishment―recognition for a job well done. There is little difference between the two groups in what ultimately happens with a symbolic award once the ceremonies and celebrations are complete.
Figure 1 (Pacesetter Awards)
Ultimately the symbolic award will generally be placed in a position of distinction within a building or home. Once perched in its place of honor, the award will rarely be removed, interacted with or otherwise handled by the recipient. Many make this case when attempting to make the argument for not classifying symbolic awards as children’s products, even when distributing them to children.
What The CPSIA Says
The CPSC, through the passage of the CPSIA in 2008, established specific criteria for children’s products, articles and toys. It is difficult for anyone to argue with the intent of the CPSIA regulations. However, due to vague definitions and the vast amount of products in our society there have been many misunderstandings and unintended consequences resulting from the passage of this law. The most notable concerns deal with what actually constitutes a children’s product.
Figure 2 (BCH Unique)
When referring to a toy, the regulations are a little easier to understand and apply. Simply walk into the toy department of any retail store and that the intended audience will be fairly obvious. On the other hand, in the award and recognition industry, just as in the promotional products industry, the intended audience and/or planned use of a product are not always clear. While this is where things generally get complicated, it does not necessarily have to be so. With a basic understanding of product safety regulations, solid processes in place and the application of common sense, product safety compliance is within reach.
With the definition of a children’s product in place, let’s look at how to apply the four specified statutory factors to typical symbolic awards.
“A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.”
The purpose is to demonstrate achievement, and the intended audience covers all age groups. Therefore, you must determine:
i. Who is the intended audience?
ii. Will the award be distributed to children?
iii. Where will the award be distributed?
“Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.”
Symbolic awards are represented in a way that typically does not promote or advertise “use” by children based on packaging. However, this can be deceiving as many awards will have a childlike or youthful figure atop the award itself.
“Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.”
Items such as plaques, medals, ribbons and trophies, and plastic, metal or glass figurines, are intended for all audiences. The target audience in each situation, along with the design and the appeal to each specific age group will be determining factors when it comes to symbolic awards. Points to consider:
i. Does the figure located on the award have childlike qualities (does it represent a child or an adult)?
ii. Does the award have play value?
iii. Is the award intended for a youth sports team, elementary school or other youth program?
“The Age Determination Guidelines issued by the Commission staff in September 2002 and any successor to such guidelines.”
Symbolic awards generally have little to no play value. This alone is not enough to make a determination with regard to whether or not a product is intended for children. The Age Determination Guidelines will provide useful assistance in making appropriate decisions with regard to the application of product safety regulations.
Figure 3 (Pacesetter Awards)
Applying CPSIA Regulations To Symbolic Awards
When looking at the above criteria and applying responsible and appropriate filters, it seems possible to say that many symbolic awards may not meet the CPSIA’s description of a children’s product. However, CPSC staff members have said they believe trophies cannot be placed categorically into the general purpose, or non-children’s, product category.
Even though many general-use trophies on the market do not have attributes or features that appeal to children or appear youthful in design, a blanket approach to the category cannot be taken. One would need to “examine the physical characteristics of the trophy figure (i.e., what does the figurine’s body actually look like?)” to determine whether or not an award would be classified as a children’s product. If a trophy has a childlike appeal, even if it does not have a child figurine, it is likely to be viewed as a children’s product.
In order to better understand this concept, use the “four specified statutory factors” listed above, and apply them to the figures provided. Does the award in its most basic state appear to be geared toward children, or toward adults? When you have your answer you will have a better idea of how to proceed.
Figure 4
Like promotional products that begin as general use items, other awards as well as wall plaques are more general in nature which makes it more difficult to make a determination. Many general sports and accolade items, such as those shown in figures 4-7, would be considered general purpose items unless targeted to children 12 years of age and under. Or, if a plaque was somehow interactive, then it would be subject to the same criteria mentioned previously.
Even though symbolic awards are not toys, when children 12 years of age and younger are the target audience, the chances are the award will be subject to CPSIA regulations.
Figure 5
Prop 65 And Other State Laws
In addition to CPSIA, symbolic awards may also be subject to the laws and regulations of specific states, and these regulations could apply to all audiences, children and adults. California Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, lists more than 900 chemicals known by the State of California to cause cancer, birth defects or other reproductive harm and to inform citizens about exposures to such chemicals. Labeling is required if unacceptable levels of any of these chemicals are present in a product that will be distributed in California.
In order to distribute products in California, businesses are required to provide what The Office of Environmental Health Hazard Assessment (OEHHA) considers a “clear and reasonable” warning. The purpose is to inform buyers and/or users of products “before knowingly and intentionally exposing anyone to a listed chemical.” These Prop 65 warning labels should be provided by the “manufacturer, producer, or packager of the consumer product, rather than by the retail seller.”
Figure 6
Distribution applies to persons or businesses conducting business in the state of California and can take several forms, most notably selling the product or handing the product out at an event or place of business. Whenever the known distribution point for a consumer product is California, then compliance with Prop 65 regulations in the form of testing or labeling is required. Products purchased or received outside the state of California by an individual and brought into California for a person’s own personal use or consumption are not currently subject to these regulations.
When providing “clear and reasonable warning,” a variety of means to communicate such warnings to the extent practicable is set forth in the law. These means include labeling a consumer product with stickers, signs or labels, posting signs at a retail environment or workplace, or distributing a notice in other ways as defined by the regulation. Warning labels are not required to be permanently affixed to a product, but they are positioned in such a way as to meet the definition of a “clear and reasonable” warning.
Figure 7
By placing a warning label with a product, an organization is communicating that it “is aware or believes that one or more listed chemicals is present. By law, a warning must be given for listed chemicals unless exposure is low enough to pose no significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm.”
The OEHHA has developed “safe harbor numbers” to assist in determining whether warning labels are necessary. As a matter of best practice, testing to determine the presence of any of the listed chemicals is recommended. As a matter of practicality this is often not economical or feasible. Therefore, according to the OEHHA, “a business may choose to provide a warning simply based on its knowledge, or assumption, about the presence of a listed chemical without attempting to evaluate the levels of exposure.”
Illinois Lead Poisoning Prevention Act
Another state requirement that may be applied to symbolic awards is the Illinois Lead Poisoning Prevention Act. This act is essentially a labeling law that applies lead limits (40 parts per million) to surface coatings and/or painted decoration used toys and children’s jewelry. In addition, this act applies lead limits (600 parts per million) to the surface coating or substrate material of adult items. If any of the limits are exceeded, the following warning label is required: “WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD.”
Consult with your suppliers/manufacturers and testing labs to determine if your product needs labels to meet the requirements of this regulation.
Summary
While product safety on a national level as it relates to symbolic awards has been the primary focus, laws and regulations are especially fluid at the state level, adding to the challenge of regulatory compliance. In addition, myriad factors may affect each given situation to which the points addressed here may not specifically apply. When these situations arise, it is prudent to consult with a qualified testing lab and/or experienced product responsibility attorney.
Disclaimer: This information is being furnished for educational and informational purposes only. The author makes no warranties or representations about specific dates, coverage or application. Consult with appropriate legal counsel about the specific application of the law to your business and products.
Tim Brown, MAS, is the product responsibility manager for PPAI, where he is responsible for product safety, environmental and social responsibility efforts of PPAI including education and awareness outreach. Prior to joining PPAI, Brown worked at distributor Cintas Promotional Products, as the supplier relationship manager where he implemented industry leading supplier management best practices. He has served on the Quality Certification Alliance (QCA) Distributor Advocacy Council, as well as on the board of directors for Tri-State Promotional Products Association (TSPPA) as the 2012 president. He also served as a member of PPAI’s Product Responsibility Action Group (PRAG).
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