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BackgroundTable 1. Criteria in Small Parts Regulation TestsImpactFlexureTorqueTensionCompression10 dropsfrom4.5 ft 0.5 in120 Arc30 Cycles10 lb 0.5 lb2 lbf-in 0.2 lbf-in10 lb 0.5 lb20 lb 0.5 lbOver 18 but Not Over36 Months of Age(16 CFR § 1500.52)4 dropsfrom3 ft 0.5 in120 Arc30 Cycles15 lb 0.5 lb3 lbf-in 0.2 lbf-in15 lb 0.5 lb25 lb 0.5 lbOver 36 but Not Over96 Months of Age(16 CFR § 1500.53)4 dropsfrom3 ft 0.5 in120 Arc30 Cycles15 lb 0.5 lb4 lbf-in 0.2 lbf-in15 lb 0.5 lb30 lb 0.5 lb18 Months of Ageor Less(16 CFR § 1500.51)Age Labeling and DeterminationsAge labeling provides parents and other consumers guidance for selecting proper products forchildren. CPSC staff, therefore, encourages age labeling. However, age labeling must beaccurate. It is to the manufacturer’s or importer’s advantage to determine accurately the intendedage group for their products, and to label, promote, and market those products to that age group.If CPSC staff tests a toy or other article for small parts when the product is not clearly andconspicuously age-labeled, or is age-labeled inappropriately, CPSC staff performs the moststringent test from the two age groups for children under 3 years of age. For example, if a toy islabeled for children spanning more than one age group under 3 years (e.g., “12 to 24 mos.”),CPSC staff subjects it to the most stringent use and abuse tests for children 18 months or less,and over 18 but not over 36 months of age. If CPSC staff determines that the same toy isintended for children under 3 years of age, it is subjected to the Small Parts Regulation,regardless of its age labeling.For a firm to know whether the Small Parts Regulation applies to a particular toy or other article,the firm must determine the age of the child for whom the product is intended. For the SmallParts Regulation, the factors used to assist in determining which toys and other articles areintended for use by children under 3 years of age are found in 16 CFR § 1501.2(b) and involveevaluating: (1) the manufacturer’s stated intent, if reasonable, (2) the advertising, promotion andmarketing, and (3) common recognition. A table containing the exact wording of the abovecriteria appears later in the chapter.5

BackgroundRegarding small parts, CPSC staff performs age determinations in which the variouscharacteristics of a toy or other article are matched to the characteristics of children in aparticular age group to determine whether it is intended for children under 3 years of age. Forexample, children from 12 months through 18 months of age enjoy toys with bright colors,especially yellows and reds, and toys with high contrast and patterns. Therefore, toys withcharacteristics such as these may be considered appropriate for children of this age. As specifiedin the Small Parts Regulation, staff also considers how the toy or other article is labeled,marketed, advertised, and promoted. Although small parts that present a hazard are clearlyinappropriate for children under 3 years of age, the mere presence of small parts does notpreclude the possibility that CPSC staff would determine that product is intended for childrenunder the age of 3. Rather, when evaluating a product for age appropriateness, one ought toconsider whether parents and others would purchase the product for children under 3 years ofage, based on its characteristics and the characteristics of children of this age.Consumer Product Safety Improvement ActIn 2008, Congress passed the CPSIA, 7 giving the Commission new regulatory and enforcementtools for addressing mechanical and chemical safety hazards in consumer products that areintended for children. Most notable for age grading, the law (1) mandated the ASTM F963Standard Consumer Safety Specification for Toy Safety as a consumer product safety standard(incorporated by reference in 16 CFR part 1250), and (2) added a definition of “children’sproduct” in the CPSA. A children’s product is “a consumer product designed or intendedprimarily for children 12 years of age or younger.” 15 USC 2052(a)(2). The definition states fourfactors to consider. A manufacturer’s statement about intended use is one factor, but is notdeterminative. The Age Determination Guidelines are the fourth criterion to consider whendetermining what constitutes a “children’s product” under the CPSA.The CPSIA also added requirements that consumer products that are “children’s products” mustbe labeled with tracking labels and have valid Children’s Product Certificates (CPCs), based onpassing third-party test results from a CPSC-accepted laboratory. According to section 101 of7Consumer Product Safety Improvement Act (CPSIA) of 2008. Pub. L. No. 110-314. Available at:https://cpsc.gov/s3fs-public/pdfs/blk pdf cpsia.pdf6

BackgroundCPSIA, children’s products cannot contain more than 100 parts per million (ppm) of total leadcontent (substrate) or 90 ppm of lead in paint or other surface coatings. Additionally, productsmeeting the “children’s toy” or “child care article” definitions are subject to specified phthalatesprohibitions in CPSIA section 108 and 16 CFR part 1307. The regulation at 16 CFR part 1307made some changes to the list of prohibited phthalates in the CPSIA. Table 2 outlines therelevant statutory and regulatory definitions and evaluation criteria that are applicable to agegrading.ASTM F963 Toy Safety StandardASTM F963 8 Standard Consumer Safety Specification for Toy Safety is a comprehensive safetystandard covering performance requirements and test methods for addressing a wide range ofsafety hazards in toys that are intended for children under 14 years of age (includes 13-year-oldchildren). The status of ASTM F963 as a mandatory standard greatly expanded the scope andneed for age grading by CPSC staff, given the myriad age-specific requirements, wider agerange, and types of toys covered. The standard contains performance specifications to address awide range of mechanical safety hazards (e.g., projectiles, batteries, strings and cords, noise,magnets, and expanding materials), as well as chemical hazards (e.g., lead, cadmium, antimony,arsenic, barium, chromium, mercury, and selenium), in toys. Many of the performancerequirements in the standard have age limits, which were developed in response to known safetyhazards and/or the expected cognitive, physical development, and interests of children in acertain age group. CPSC staff often determines whether a toy meets the following definition inASTM F963 section 3.1.91: “toy - any object designed, manufactured, or marketed as aplaything for children under 14 years of age.” If the product is a toy under the standard, staff mayconduct a more extensive evaluation to determine the most appropriate age group. One referencethat staff consults is Annex A1: Age Grading Guidelines found at the back of ASTM F963. Theannex covers the purpose and objectives of age labeling, criteria to consult, sources ofinformation or “tools,” and how to factor in safety concerns when age grading. Furthermore, theannex references CPSC’s Age Determination Guidelines for age grading8ASTM Standard F963, Standard Consumer Safety Specification for Toy Safety (2017). ASTM International, WestConshohocken, PA, 2003, www.astm.org.7

DefinitionEvaluation Criteria (Variations in bold)Source(s)1) Toy or otherarticle for childrenunder 3 yearsNone“1) The manufacturer’s stated intent (such as on a label) if it is areasonable one;2) The advertising, promotion, and marketing of the article;3) Whether the article is commonly recognized as being intended for childrenunder 3.”16CFR §1501.2(b)2) Toy“Any object designed,manufactured, or marketedas a plaything for childrenunder 14 years of age.”NoneASTM F963-17 §3.1.913) Children’s toy“A consumer productdesigned or intended by themanufacturer for a child 12years of age or younger, foruse by the child when thechild plays.”“(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 of the ages specified.(iii) Whether the product is commonly recognized by consumers as beingintended for use by a child of the ages specified.(iv) The Age Determination Guidelines issued by the Commission staff inSeptember 2002 and any successor to such guidelines.”CPSIA §108(b)(3)(e)(1)(B)4) Child carearticle“A consumer productdesigned or intended by themanufacturer to facilitatesleep or the feeding ofchildren age 3 and younger,or to help such children withsucking or teething.”Same as 3) Children’s toyCPSIA §108(b)(3)(e)(1)(C)5) Children’sproduct“A consumer productdesigned or intendedprimarily for children 12years of age or younger.”‘‘(A) A statement by a manufacturer about the intended use of suchproduct, including a label on such product if such statement isreasonable.(B) Whether the product is represented in its packaging, display, promotion,or advertising as appropriate for use by children 12 years of age or younger.(C) Whether the product is commonly recognized by consumers as beingintended for use by a child 12 years of age or younger.(D) The Age Determination Guidelines issued by the Commission staff inSeptember 2002, and any successor to such guidelines.”CPSA §3(a)(2)16 CFR §1200.2(b)8CategoryBackgroundTable 2. Definitions and Evaluation Criteria

BackgroundChildren’s ToyIn determining whether the prohibited phthalates requirements apply to a particular product,CPSC staff may evaluate whether the product meets the definition of a “children’s toy” underCPSIA section 108(b)(3)(e)(1)(B). The law at § 108(g)(1)(B) defines “children’s toy” as “aconsumer product designed or intended by the manufacturer for a child 12 years of age oryounger, for use by the child when the child plays.” Section 108(g)(2) of the CPSIA lists fourcriteria to determine whether a product meets the definition of “children’s toy.” Staff appliesthose criteria in the same manner as the similar four criteria for the definition of “children’sproduct” in section 3(a)(2) of the CPSA.Child Care ArticleIn determining whether the prohibited phthalates requirements apply to a particular product,CPSC staff may evaluate whether the product meets the definition of a “child care article” inCPSIA. The term “child care article” is defined in section 108(b)(3)(e)(1)(C) of the CPSIA as a“consumer product designed or intended by the manufacturer to facilitate sleep or the feeding ofchildren age 3 and younger, or to help such children with sucking or teething.” Staff uses thesame criteria to make determinations of children's toys in section 108 as it uses to identifyproducts as a “child care article.”Children’s ProductsCPSC staff often evaluates whether a consumer product meets the definition of a “children’sproduct” in section 3(a)(2) of the CPSA, as amended by the CPSIA in 15 USC 2052(a)(2). Thelaw defines a “children’s product” as “a consumer product designed or intended primarily forchildren 12 years of age or younger.” Similar to the criteria in the Small Parts Regulation forevaluating age appropriateness of toys and other articles for children under 3 years of age, thefirst three criteria in the CPSIA definition mention evaluating the manufacturer’s stated intent;marketing, advertising, and promotion; and common recognition. Differences between the SmallParts Regulation criteria and the definition

AGE DETERMINATION GUIDELINES: Relating Consumer Product Characteristics to the Skills,