On June 4th opinion letter, CPSC’s Office of General Counsel attempted to clarify the meaning of children’s product with respect to ball point pens. It appears to be an industry standard to have lead in excess of CPSIA standards. The starting point of analysis, according to CPSC, is that a pen is considered as a general purpose item. It is the marketing and advertisement that may convert the general purpose pen into a children’s product. The opinion letter, then focuses on what type of marketing and/or advertisement would NOT constitute turning of a general purpose pen into a children’s product:
- Once a year “back to school” marketing
- Novelty pens
- Cartoon character pens
Yet, these examples appear as the very type of marketing directed at children. While, there is no one set definition for “novelty,” it seems acceptable to use Wikipedia definition: “small manufactured adornment, especially a personal adornment.” Similarly, one could argue that cartoon characters (notable exception of adult cartoons) is the very type of advertisement directed at children. Obviously, it is very difficult to argue that “back to school” marketing is not directed at children. Here, the Office implicitly acknowledges it, and carves out “once a year” exception. Does CPSC have an authority to create such exceptions?
The letter would provide much more clarity if it were to focus on non-permissive examples rather than permissible ones. Yet, in light of relative newness of CPSIA enactment and the fact that CPSC administrative policy is still in transitional stage, the Office has stricken a political balance at the expense of businesses who source their writing products to younger population.
