[Federal Register: November 17, 2008 (Volume 73, Number 222)]
[Rules and Regulations]               
[Page 67730-67739]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no08-10]                         

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500

 
Labeling Requirement for Toy and Game Advertisements; Final Rule

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Consumer Product Safety Commission (``Commission'' or 
``CPSC'') is issuing a final rule for advertisements of certain toys 
and games. Section 105 of the Consumer Product Safety Improvement Act 
of 2008, Public Law 110-314, 122 Stat. 3016 (August 14, 2008), 
(``CPSIA''), directs the Commission to promulgate regulations to 
effectuate this section with respect to advertising for certain toys 
and games in catalogues and other printed materials not later than 90 
days after enactment. The final rule details requirements regarding the 
size and placement of the cautionary labeling and the use of 
abbreviated warnings. The rule exempts catalogues circulated solely 
between businesses from the rule's requirements, except where the 
recipient business is one that could be expected to be purchasing the 
product for the use of children rather than for resale. There is a 
grace period of 180 days for distribution of catalogues and other 
printed materials printed prior to the effective date of February 10, 
2009.

DATE: The effective date of this rule with respect to catalogues and 
other printed materials is February 10, 2009. The Commission is 
providing a grace period of 180 days, or until August 9, 2009, during 
which catalogues and other printed materials printed prior to February 
10, 2009 may be distributed without the required cautionary statements. 
Catalogues and other printed materials that are printed on or after 
February 10, 2009 must have the required cautionary statements. All 
catalogues and other printed materials distributed on or after August 
9, 2009 must comply with this rule, regardless of when they were 
printed. This rule addresses only catalogues and other printed 
materials; however, the CPSIA extends the requirements to Internet 
advertisements as well. Internet advertisements must comply with 
Section 24 of the Federal Hazardous Substances Act as amended by the 
CPSIA no later than December 12, 2008.

FOR FURTHER INFORMATION CONTACT: Barbara E. Parisi, Project Manager, 
Office of General Counsel, Consumer Product Safety Commission, 4330 
East-West Highway, Bethesda, Maryland; telephone (301) 504-7879 or e-
mail: bparisi@cpsc.gov.

SUPPLEMENTARY INFORMATION: 

A. Background

    Section 24(a) of the Federal Hazardous Substances Act (FHSA) 
prescribes cautionary labeling requirements for toys or games that are 
intended for use by children from 3 to 6 years old and contain small 
parts. The cautionary statement warns potential purchasers that these 
products are not for children under 3 years old due to choking hazards. 
Section 24(b) of the FHSA prescribes similar requirements for balloons, 
small balls, and marbles intended for children 3 years and older, or 
any toy or game which contains such a balloon, small ball, or marble.
    Section 105 of the CPSIA amends section 24 of the FHSA to require 
that, when a product's packaging requires a cautionary statement, 
advertising for the product that provides a direct means for purchase 
or order of the product (including catalogues, other printed materials, 
and Internet Web sites) must bear the same cautionary statement. 
Section 105 provides some guidelines on the format of the cautionary 
statement. Specifically, it must be prominently displayed in the 
primary language used in the advertisement, in conspicuous and legible 
type in contrast by typography, layout, or color with other material 
printed or displayed in the advertisement, and in a manner consistent 
with 16 CFR part 1500.
    Section 105 of the CPSIA also allows the Commission to provide a 
grace period of no more than 180 days for catalogues and other printed 
material printed prior to the effective date. In addition, the 
Commission is directed to determine the applicability of the 
requirements to catalogues and other printed material distributed 
solely between businesses and not to individual consumers.
    Section 105(2) of the CPSIA exempts the Commission from conducting 
Regulatory Flexibility Act and Paperwork Reduction Act analyses for 
this rulemaking. On September 29, 2008, the Commission voted 
unanimously (2-0) to approve the publication in the Federal Register of 
a notice of proposed rulemaking (NPR) for advertising requirements. The 
notice was published Monday, October 6, 2008. 73 FR 58063.

B. Response to Comments

    In response to the Federal Register notice proposing advertising 
labeling requirements, the Commission received approximately 52 
comments.

1. Hazards Required To Be Labeled in Advertisements

    Comments: Several commenters asked that the Commission clarify the 
scope of the advertising requirements. A couple of commenters 
questioned whether, now that the Standard Safety Specification for Toy 
Safety (ASTM F973) is becoming mandatory, the labeling requirements 
therein become part of the advertising labeling requirements.
    Response: Section 24 of the Federal Hazardous Substances Act 
requires that packaging for toys and games intended for use by children 
between the ages of 3 to 6 that contain small balls, marbles, or small 
parts require a precautionary labeling warning that such items present 
choking hazards and are not appropriate for children under 3. Section 
24 of the Federal Hazardous Substances Act also requires that packages 
for balloons have warnings related to the choking and suffocation 
hazards that balloons present to children less than 8 years of age. The 
rule requires that, when a product's packaging is required to have any 
of the cautionary statements regarding choking hazards required by 
section 24 of the Federal Hazardous Substances Act, advertising for the 
product that provides a direct means for the purchase or order by a 
consumer must have the appropriate cautionary statements. Thus, the 
rule only applies to warnings regarding choking hazards presented by 
small parts, small balls, marbles and balloons.
    The labeling requirements of ASTM F963 are not required to be 
included in product advertisements under this rule. Again, the 
cautionary statements required in advertisements by this rule are those 
found in section 24 of the Federal Hazardous Substances Act--
specifically, cautionary statements regarding choking hazards presented 
by small parts, small balls, marbles, and balloons.

2. Permissibility of Additional Safety Warnings

    Comments: Several commenters asked whether businesses could include 
other safety warnings, statements or information in Internet, catalogue 
or other advertising in a form and format in the sole discretion of the 
advertiser.
    Response: This rule does not preclude advertisers from including 
other safety warnings, statements or information in

[[Page 67731]]

their advertisements. Further, additional safety warnings not required 
by the rule need not be in the format prescribed by this rule.

3. Direct Means for the Purchase or Order

    Comments: Some commenters asked whether the rule applies to 
advertising leaflets sent directly to consumers where consumers would 
be required to make the purchase at a store.
    Response: Such an advertisement would not be providing a direct 
means for the purchase or order of the product, since the consumer 
would be required to make a trip to the store to purchase the product. 
Thus, the advertisement would not require the cautionary statements.
    Comments: Others questioned whether a Web site address alone on a 
flyer or free-standing insert would constitute a ``direct means of 
purchase.''
    Response: This would not constitute a direct means of purchase, 
since a purchaser would still need to take the additional step of going 
to the website to purchase the product, wherein the cautionary warnings 
would be present. However, if the flyer or free-standing insert 
directed the purchaser to a specific phone number for order, this would 
constitute a ``direct means for the purchase or order,'' so that the 
flyer or free-standing insert would need to comply with the 
requirements of the rule.
    Comments: A couple of commenters questioned the applicability of 
the rule to coupons and cards that consumers can mail in (e.g., with 
proof of purchase, payment for shipping and handling, sometimes for a 
fee).
    Response: A mail in coupon for a toy or game subject to the 
cautionary statements of section 24 of the FHSA would require the 
cautionary statements adjacent to the description of the toy or game, 
since the coupon would be providing a direct means to purchase or order 
the product in question. If the coupon was one which needed to be taken 
to the store or used for an online Internet purchase, and did not 
include a mail-in option, then it would not need to comply with the 
advertising requirements in the final rule.

4. Type-Size Requirements

    Comments: Several commenters expressed concern about the proposed 
minimum type-size requirements of 0.08 inches, stating that it seemed 
unnecessary. Some commenters suggested that the size of the required 
cautionary statements only be ``reasonably related'' to the size of 
other text in the advertisement, except for the heading, which would be 
consistent with the provisions for literature and descriptive material 
that accompany a product subject to Child Safety Protection Act 
labeling, as specified in 16 CFR 1500.121 and 16 CFR 1500.19.
    Response: The Commission agrees that specifying the type size in 
absolute terms is not necessary if the warning text meets requirements 
that specify the type size relative to the other text in the 
advertisement. The Commission finds that a modified version of the 
type-size requirements for cautionary labeling of accompanying 
literature containing directions for use, specified in 16 CFR 
1500.121(c)(6), is sufficient to satisfy the conspicuousness 
requirement for the advertising warnings. Specifically, the requirement 
reads, ``The type size of abbreviated cautionary statements shall be 
reasonably related to the type size of any other printed matter in the 
product advertisement, and must be in conspicuous and legible type by 
typography, layout, or color with other printed matter in the 
advertisement and separated from other graphic matter.''

5. Placement Requirements

    Comments: Several commenters requested more flexibility in the 
placement of the full cautionary statements so that they are not 
required to appear at the bottom or top of the same page as the 
abbreviated warning or across two facing pages. For example, some 
commenters suggested that the statements be allowed to be located 
elsewhere in the catalogue, such as on the inside cover. One commenter 
suggested the use of a single general warning on the front cover of the 
catalogue stating that some of the products within might contain small 
parts. Another suggested placing the warnings in the catalogue Table of 
Contents to identify entire sections subject to the cautionary 
statements. One commenter suggested that, at the very least, the full 
cautionary statements be permitted anywhere on the same or facing page 
that contains the abbreviated warning.
    Response: The Commission recognizes the concerns expressed by some 
commenters about the large amount of space in print catalogues that 
could be occupied by the full text of the required cautionary 
statements. The Commission's original proposal, which involved 
permitting the use of abbreviated warnings as long as a full cautionary 
statement was included at the bottom or top of the same or facing page 
for each abbreviated warning, was an attempt to address this situation. 
Members of the catalogue industry, however, have provided the CPSC with 
mock-up catalogue pages that approximate how some of their catalogue 
pages would appear if they met the requirements proposed in the NPR, 
and these samples reveal that the required cautionary statements would 
still take up a substantial amount of space, even with the use of 
abbreviated warnings. Thus, the Commission has concluded that, if 
abbreviated warnings are employed, then a single set of full cautionary 
statements must be included either (1) near the beginning of the print 
catalogue, before any pages containing advertisements of products 
available for purchase, or (2) adjacent to the ordering information. 
The bottom of every catalogue page that includes abbreviated warnings 
must provide a reference to the precise location of the full cautionary 
statements. Each full cautionary statement should clearly identify its 
corresponding number code to be referenced in the abbreviated warnings 
(as detailed in the ``Abbreviated Warnings'' section).
    The Commission believes that a single general cautionary statement 
located on the cover of, or elsewhere in, a catalogue would provide 
little to no benefit to consumers if it merely warned that some of the 
products advertised might contain small parts or other choking hazards. 
Under such circumstances, consumers would have no way of identifying 
those products that present the warned-about hazard. The Commission, 
however, does believe that it is appropriate to permit a cautionary 
statement on the front cover, or an equally conspicuous location, of a 
catalogue to replace the corresponding abbreviated warnings within the 
catalogue if that cautionary statement applies to all products 
available for purchase in that catalogue and if this fact is clear to 
consumers. For example, if a catalogue only contained balloons subject 
to FHSA labeling, a single full cautionary statement--specifically, the 
cautionary statement identified in 16 CFR 1500.19(b)(2)--may appear on 
the cover of the catalogue rather than individually labeling each 
product advertisement within the catalogue.
    Similarly, because full cautionary statements will no longer appear 
on each page or two-page spread of the catalogue and because some 
catalogue pages may include products that require identical cautionary 
labeling, the final rule permits the use of a single full cautionary 
statement at the top of a page to replace individual warnings on that 
page, provided that the page contains products that would require the 
same cautionary statement and that this fact is clear to consumers. If, 
for example, a page contains products that would all

[[Page 67732]]

require the cautionary statement related to small parts, the 
abbreviated warnings associated with small parts that would otherwise 
appear in each product advertisement on that page could be replaced 
with the cautionary statement identified in 16 CFR 1500.19(b)(1) 
positioned at the top of the page. This, again, presumes that consumers 
are notified that this cautionary statement applies to all products on 
that page. For example, a full cautionary statement related to small 
parts could be preceded by the statement, ``All products on this page 
contain small parts.'' Because a ``section'' of a catalogue might 
extend over multiple pages, the Commission finds that a single 
cautionary statement at the beginning of a section could be missed by 
consumers and is not appropriate.

6. Abbreviated Warnings

    Comment: Some commenters suggested that the abbreviated warnings 
proposed in the Notice of Proposed Rulemaking, though better than the 
full cautionary statements, were still too lengthy. The commenters 
suggested several alternative approaches, including the use of 
abbreviated warnings without the prohibited age range, the use of a 
safety alert symbol and numbered codes to identify the applicable 
cautionary statements, and the use of icons alone to represent the 
applicable cautionary statements. One commenter also suggested that the 
abbreviated warnings be allowed to be combined in some manner. No 
commenter objected to the use of abbreviated warnings of some kind.
    Response: The Commission recognizes that certain products will 
require multiple cautionary statements and that this could lead to 
substantial redundancy even with the use of abbreviated warnings. For 
example, each abbreviated warning begins with a safety alert symbol; 
thus, an advertisement that requires multiple abbreviated warnings 
would require multiple safety alert symbols. Additionally, three of the 
abbreviated warnings include the phrase ``Not for under 3 yrs.'' 
Advertising for a toy or game that requires more than one of these 
warnings, therefore, would repeat this phrase multiple times. This is 
further complicated by the possibility of the advertisement also 
requiring an abbreviated warning that warns ``Not for under 8 yrs.'' 
Simultaneous warnings that a toy is not for children ``under 3 yrs'' 
and not for children ``under 8 yrs'' could create confusion among 
consumers, and seems unnecessary given that one age range encompasses 
the other. For these reasons, the final rule permits a product 
advertisement that would require multiple abbreviated warnings to 
combine those warnings into a single abbreviated warning.
    Comments: Some commenters suggested the use of a European symbol 
that is intended to communicate that a toy is not suitable for children 
under age three.
    Response: It is unclear whether consumers would correctly interpret 
such a symbol as a warning about a choking hazard rather than simply an 
age recommendation. Moreover, this symbol may not be suitable to warn 
about balloon-related choking hazards to children under eight.

7. Grace Period

    Comments: Most of the comments confirmed that the costs to 
catalogue publishers could be significant if a grace period is not 
granted. One retailer, for example, estimated that if the Commission 
does not provide for a grace period, the cost to reprint, ship, and 
mail new catalogues could be as high as $3.7 million.\1\ Another 
commenter estimated that it could cost his company $1 million to 
republish its catalogues before their normal life cycles ended.\2\ 
Another commenter stated that it is taking some time to obtain the 
information from manufacturers concerning which products require the 
cautionary statements.\3\ Some retailers cannot begin to change the 
layout of their catalogue pages to reflect the cautionary statements 
until they receive this information from the manufacturers.
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    \1\ Comment from Stephanie Lester, Vice President, International 
Trade, Retail Industry Leaders Association (20 October 2008).
    \2\ Terry Clayton, General Manager and COO, Triarco Arts and 
Crafts (14 October 2008).
    \3\ Comment from James H. Rice, CEO and Mary Ann Everett, Vice 
President, Creative Catalog Concepts (15 October 2008).
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    No commenter objected to the allowance of a grace period.
    Response: Although the specific estimates cannot be confirmed, 
based on published estimates that the cost per copy of printing 
catalogues exceeds $1 for most firms (excluding layout and postage),\4\ 
the Commission agrees it is reasonable to expect that some firms could 
face very significant costs if they had to reprint a large number of 
catalogues because a grace period was not provided.
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    \4\ Telephone conversation with Rick Woldenberg and Lisa Guili 
of Learning Resources, Inc. and Sandy Schusteff of ETA/Cuisenaire (8 
September 2008) and Jim Tierney, ``Print, Production and Paper,'' 
Multichannel Merchant (1 November 2007), available at http://
multichannelmerchant.com/printchannel/printchannel/print_
production_paper (last accessed on 10 September 2008).
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    The Commission recognizes that before the passage of the CPSIA, 
many manufacturers did not have this information assembled in a format 
that could be easily provided to retailers. Thus, manufacturers have 
had to assemble this information and develop procedures for providing 
this information to their retailers.
    Comment: Some catalogue publishers stated that a 180 day grace 
period would not be sufficient and requested a grace period exceeding 
180 days in length be provided by the Commission.
    Response: The CPSIA only authorizes the Commission to provide a 
grace period of ``no more than 180 days'' for catalogues and other 
printed material printed prior to February 10, 2009.
    Comment: One commenter requested a grace period for Internet 
advertisements.
    Response: The CPSIA provides that the effective date for Internet 
Web site advertisements is December 12, 2008, and does not provide the 
Commission with any authority to provide a grace period with respect to 
Internet Website advertisements.

8. Applicability of Rule to Television Advertisements

    Comments: Several commenters asked the Commission to confirm that 
this rule does not apply to television advertisements.
    Response: While the CPSIA prescribes an effective date for 
advertisements on Internet Web sites and an effective date with respect 
to catalogues and other printed materials, there is no effective date 
prescribed for television advertisements. This rule addresses only 
catalogues and other printed materials; thus, the requirements of the 
rule are not applicable to television advertisements.

9. Business to Business Catalogues

    Comment: The Commission received two comments opposing the 
requirement that catalogues distributed to schools and similar entities 
contain the cautionary statements. These comments stated that the cost 
to some businesses that supply educational products could be 
significant and that some businesses might have trouble separating 
their ``school or nursery'' customers from other institutional 
consumers.
    Response: The Commission acknowledges that there will be some costs 
to businesses to comply with this requirement, but finds that 
institutional consumers purchasing products for the use of children 
could benefit from knowing which products contain choking hazards and 
are not appropriate

[[Page 67733]]

for some age groups. The flexibility provided in the placement of 
warnings and in the option of using abbreviated warnings should 
alleviate somewhat the costs to businesses.
    Comment: Three comments from the general public opposed exempting 
catalogues distributed solely between businesses. These comments stated 
that the warnings would benefit retailers as well as consumers.
    Response: The information in the cautionary statements may be of 
some benefit to retailers. However, the need that retailers have for 
the information is different from that of consumers. The intent of this 
requirement is to caution parents that a product has small parts, small 
balls, marbles, or latex balloons, and therefore, is not appropriate 
for young children, before the consumer purchases an item through a 
catalogue or the Internet. Retailers need this information to know in 
which section of the store to stock and which items will require 
cautionary statements in their catalogues. The CPSIA requires 
manufacturers to provide this information to retailers. However, there 
may be more effective or less expensive means of providing this 
information to retailers than through the use of warnings designed for 
consumers.
    Comment: One of the comments opposing any exemption for business to 
business catalogues noted that sometimes bulk purchases are made for 
dentists' or physicians' offices, carnivals, and fairs, among other 
places.\5\
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    \5\ Comments of Consumers Union of U.S. Inc., et al. (20 October 
2008).
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    Response: Under the final rule, any catalogue that is distributed 
to these types of entities is required to include the appropriate 
cautionary statements since the businesses could be expected to be 
purchasing products for the use of children.

C. Explanation and Description of the Rule

    Following is a brief explanation and description of the principal 
provisions of the Commission's regulation.

1. Type-Size Requirements

    As discussed in the Response to Comments section (Section B), 
several commenters expressed concern about the proposed minimum type-
size requirement of 0.08 inches, stating that it seemed unnecessary. 
The Commission agrees that specifying the type size in absolute terms 
is not necessary if the warning text also must meet requirements that 
specify the type size relative to the other text in the advertisement. 
The final rule revises the type-size requirement to read, ``The type 
size of abbreviated cautionary statements shall be reasonably related 
to the type size of any other printed matter in the product 
advertisement, and must be in conspicuous and legible type by 
typography, layout, or color with other printed matter in the 
advertisement and separated from other graphic matter.''

2. Placement Requirements

    As noted and more fully discussed in the Response to Comments 
section (Section B), several commenters requested more flexibility in 
the placement of the full cautionary statements so that they are not 
required to appear at the bottom or top of the same page as the 
abbreviated warning or across two facing pages. The Commission 
generally agrees with the concerns expressed by some commenters about 
the large amount of space in print catalogues that could be occupied by 
the full required cautionary statements. Mock-up catalogue pages that 
approximated how some of the catalogue pages would appear if they met 
the requirements proposed in the NPR revealed that the required 
cautionary statements would still take up a substantial amount of 
space, even with the use of abbreviated warnings. The Commission has 
concluded that, if abbreviated warnings are employed, the use of a 
single set of full cautionary statements either (1) near the beginning 
of the print catalogue, before any pages containing advertisements of 
products available for purchase, or (2) adjacent to the ordering 
information, is permissible. The bottom of every catalogue page that 
includes abbreviated warnings, however, must provide a reference to the 
precise location of the full cautionary statements. Also, each full 
cautionary statement must clearly identify its corresponding number 
code to be referenced in the abbreviated warnings (as discussed below).
    The Commission believes that a single general cautionary statement 
located on the cover of, or elsewhere in, a catalogue would provide 
little or no benefit to consumers if it merely warned that some of the 
products advertised might contain small parts or other choking hazards. 
Under such circumstances, consumers would have no way of identifying 
those products that present the warned-about hazard. The final rule, 
however, does permit a cautionary statement on the front cover, or 
equally conspicuous location, of a catalogue to replace the 
corresponding abbreviated warnings within the catalogue if that 
cautionary statement applies to all products available for purchase in 
that catalogue and if this fact is clear to consumers. For example, if 
a catalogue only contained balloons subject to the FHSA choking hazard 
labeling, a single full cautionary statement is permitted--
specifically, the cautionary statement identified in 16 CFR 
1500.19(b)(2)--to appear on the cover of the catalogue rather than 
individually labeling each product advertisement within the catalogue.
    Similarly, because full cautionary statements will no longer appear 
on each page or two-page spread of the catalogue and because some 
catalogue pages may include products that require identical cautionary 
labeling, the final rule permits the use of a single full cautionary 
statement at the top of a page to replace individual warnings on that 
page, provided that the page contains products that would require the 
same cautionary statement and that this fact would be clear to 
consumers. If, for example, a page contains products that would all 
require the cautionary statement related to small parts, the 
abbreviated warnings associated with small parts that would otherwise 
appear in each product advertisement on that page could be replaced 
with the cautionary statement identified in 16 CFR 1500.19(b)(1) 
positioned at the top of the page. This, again, presumes that consumers 
are notified that this cautionary statement applies to all products on 
that page--for example, a full cautionary statement related to small 
parts could be preceded by the statement, ``All products on this page 
contain small parts.'' Because a ``section'' of a catalogue might 
extend over multiple pages, the Commission finds that a single 
cautionary statement at the beginning of a section could be missed by 
consumers and would not be appropriate.

3. Abbreviated Warnings for Catalogues and Other Printed Materials

    Some commenters suggested that the abbreviated warnings included in 
the proposed rule, though better than the full cautionary statements, 
were still too lengthy. The Commission recognizes that certain products 
will require multiple cautionary statements and that this could lead to 
substantial redundancy even with the use of abbreviated warnings. The 
final rule permits a product advertisement that would require multiple 
warnings to combine those warnings into a single abbreviated warning, 
as more fully detailed below.
    In the abbreviated warnings proposed in the notice of proposed 
rulemaking, emphasis was placed on the source of the choking hazard--
for example,

[[Page 67734]]

``SMALL PARTS''--rather than on the choking hazard itself because the 
full cautionary statements would already display the phrase ``CHOKING 
HAZARD'' prominently and would be visible on the same or facing page; 
the source of the choking hazard was one of the easiest ways to 
distinguish among the full cautionary statements on the page. The use 
of the less-than symbol (<) in the original abbreviated warnings also 
was dependent on the full cautionary statements being located on the 
same or facing page.
    The abbreviated warnings in the final rule now consist of three 
parts, in the following sequence:
    (1) The safety alert symbol and the phrase ``CHOKING HAZARD.''
    (2) Number codes, separated by commas, enclosed within a single set 
of parentheses, and ending in a period that identifies the required 
cautionary statements for the product being advertised (see 16 CFR 
1500.20(e)(2)).
    (3) The prohibited age range written in the form ``Not for under X 
yrs,'' where X is either 3 or 8, based on the most restrictive age 
range for all required cautionary statements for that product.
    For example, a product that requires the cautionary statements 
specified in 16 CFR 1500.19(b)(1) and 16 CFR 1500.19(b)(2) could use 
the following abbreviated warning in its advertising:
[GRAPHIC] [TIFF OMITTED] TR17NO08.092

    This approach allows consumers to focus on two key pieces of 
information: The nature of the hazard (choking) and the prohibited age 
range for that product (under 3 years or under 8 years). This is 
reasonably consistent with warnings literature, which generally 
recommends that consumer products with limited available space for 
warning labels select certain information for emphasis, exclude less 
important information, and refer the reader to more complete cautionary 
information elsewhere.\6\ Information about the source of the choking 
hazard, though important, is likely to be less important during the 
purchasing stage than knowing that a choking hazard exists and for whom 
the toy is not appropriate. The Commission also believes that the 
prohibited age range is necessary for those cases in which consumers do 
not seek out the full cautionary statement elsewhere.
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    \6\ Laughery, K.R., & Hammond, A. (1999). Overview. In M.S. 
Wolgalter, D.M. DeJoy, & K.R. Laughery (Eds.), Warnings and risk 
communication (pp. 3-13). Philadelphia: Taylor & Francis. Wogalter, 
M.S., & Leonard, S.D. (1999). Attention capture and maintenance. In 
M.S. Wogalter, D.M. DeJoy, & K.R. Laughery (Eds.), Warnings and risk 
communication (pp. 123-148). Philadelphia: Taylor & Francis. 
Wogalter, M.S., & Vigilante, Jr., W.J. (2006). Attention switch and 
maintenance. In M.S. Wogalter (Ed.), Handbook of warnings (pp. 245-
265). Mahwah, NJ: Lawrence Erlbaum Associates.
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    Those consumers who would like additional details about the choking 
hazards, however, can use the displayed codes to identify which of the 
cautionary statements shown at the beginning of the catalogue or 
adjacent to the ordering information apply. While on first glance, the 
abbreviated warnings appear longer than the abbreviated warnings 
originally proposed in the proposed rule, this is true only for 
products that require a single cautionary statement since the 
abbreviated warnings can now be combined. Furthermore, space on any 
given catalogue page will be regained by permitting the full cautionary 
statements to be moved from the same page as the abbreviated warnings 
to the beginning of the catalogue or adjacent to the ordering 
information.
    The Commission had considered the use of icons rather than 
abbreviated warnings to further reduce the amount of space required for 
warnings in a catalogue, but several issues suggest that abbreviated 
warnings would be superior for consumers at this time. The primary 
criterion for evaluating an icon or symbol is the extent to which 
consumers are likely to understand its intended meaning.\7\ Some 
commenters suggested the use of a European symbol that is intended to 
communicate that a toy is not suitable for children under age three, 
but it is unclear whether consumers would correctly interpret such a 
symbol as a warning about a choking hazard rather than simply an age 
recommendation.
    Moreover, this symbol may not be suitable to warn about balloon-
related choking hazards to children under eight. The commenters have 
proposed no other specific icon designs to distinguish among the 
various choking hazards that must be addressed through cautionary 
labeling, making it impossible to judge whether small unique icons 
would be sufficiently legible to allow consumers to distinguish among 
them. Additionally, developing icons or symbols that would be 
reasonably understandable without consumers first having to learn the 
intended meaning of the icon is highly unlikely; abstract or arbitrary 
icons probably would have to be relied upon. Such icons are likely to 
communicate little to no information about the hazard and, therefore, 
would require consumers to seek out the full cautionary statements to 
obtain this information and to eventually learn the icon's meaning. In 
general, consumers are less likely to use information that is provided 
at the point-of-sale as the effort required to process that information 
increases,\8\ a finding that is consistent with the scientific 
consensus that consumers are less motivated and less likely to perform 
appropriate behaviors, such as complying with a warning, as the effort 
required to do so increases even by a small amount.\9\ Some consumers 
will not put forth the effort to seek out and learn the meanings of 
icons, especially if their safety implications are not obvious. As a 
consequence, these consumers would be unlikely to receive the relevant 
safety information. In contrast, abbreviated warnings would provide 
consumers with basic information about the hazard and prohibited ages 
immediately.
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    \7\ American national standard criteria for safety symbols (ANSI 
Z535.3, Rev. Ed.). (2002). Rosslyn, VA: National Electrical 
Manufacturers Association.
    \8\ Mazis, M.B., & Morris, L.A. (1999). Channel. In M.S. 
Wogalter, D.M. DeJoy, & K.R. Laughery (Eds.), Warnings and risk 
communication (pp. 99-121). Philadelphia: Taylor & Francis.
    \9\ Kalsher, M.J. & Williams, K.J. (2006). Behavioral 
compliance: Theory, methodology, and results. In M.S. Wogalter 
(Ed.), Handbook of warnings (pp. 313-331). Mahwah, NJ: Lawrence 
Erlbaum Associates.
---------------------------------------------------------------------------

4. Internet Warnings

    Section 105 of the CPSIA stipulates that the Commission shall 
promulgate a final rule ``with respect to catalogues and other printed 
material'' by November 12, 2008. The CPSIA does not mandate that the 
Commission promulgate a final rule with regard to requirements for 
Internet advertising. The final rule contains no requirements

[[Page 67735]]

specific to Internet Web site advertising. However, the requirements 
for Internet advertisements in Section 24 of the Federal Hazardous 
Substances Act, as amended by Section 105 of the CPSIA, will go into 
effect on December 12, 2008.

5. Business to Business Catalogues

    The CPSIA directs the Commission to determine the applicability of 
the advertising requirements to catalogues and other printed materials 
that are distributed solely among businesses. In the notice of proposed 
rulemaking, it was noted that although the cautionary statements could 
be of some value to retailers, the value would be lower than the value 
of the cautionary statements in catalogues distributed to households 
and other end users. However, the costs of incorporating the cautionary 
statements into the catalogues distributed solely to businesses would 
be the same as the costs of including the cautionary statements in 
catalogues distributed to retail consumers.
    Several of the comments that endorsed exempting catalogues that are 
distributed solely between businesses confirmed some of the assumptions 
that were included in the analysis contained in the notice of proposed 
rulemaking. These commenters stated that if the goal was to caution the 
ultimate consumer that the products contained small parts, balls, 
marbles or balloons before they purchased the product, then that goal 
would not be served by requiring the warnings in catalogues that are 
never seen by the end consumers.
    They stated the benefit of the cautionary statements to resellers 
is low, but that significant costs could be incurred in including the 
cautionary statements in the catalogues.
    Moreover, several commenters noted that manufacturers are required 
to provide retailers with the information concerning the required 
cautionary statements applicable to any of their products and that 
requiring the cautionary statements in catalogues that are distributed 
solely among businesses would limit the ability of manufacturers to 
convey this information in ways that could be more effective and less 
costly.
    The Commission also expressed concern in the notice of proposed 
rulemaking that exempting catalogues that were distributed to entities 
that could be expected to provide children with direct access to the 
product, such as schools and day care centers, could thwart the intent 
of the law. These organizations share some of the characteristics of 
businesses and many are in fact businesses. However, because the people 
ordering products at these organizations would be ordering products for 
the use of children, they could benefit from knowing which products 
contain choking hazards and are not appropriate for some age groups.
    Several commenters responded to a question posed by the Commission 
in the NPR as to how catalogues distributed solely between businesses 
could be distinguished from those intended for distribution to final 
consumers. Several stated that in many cases there is no clear way to 
distinguish between catalogues distributed solely between businesses 
from those intended for distribution to final consumers, including 
those distributed to entities such as schools, churches, day care 
centers, and recreational facilities. One commenter suggested that this 
is a factual distinction that could best be made through ``inquiry or 
observation of the use of the catalog.'' \10\ In other words, if the 
catalogue is being distributed to households or to entities that 
purchase products for the use of children, it is not a catalogue that 
is distributed solely among businesses.
---------------------------------------------------------------------------

    \10\ Comment from Richard Woldenberg, Chairman, Learning 
Resources, Inc. (16 October 2008).
---------------------------------------------------------------------------

    Other commenters stated that some catalogues that are intended only 
for other businesses do have characteristics that can be used to 
distinguish them from catalogues intended for the general public and 
some manufacturers and distributors have procedures in place that serve 
to limit sales and distribution to resellers. For example, some have 
minimum order quantities that are greater than a typical consumer would 
order. Some manufacturers or distributors require a sales tax 
identification number before taking an order from an entity or 
providing them with a catalogue. This serves to limit their sales to 
resellers. Some manufacturers will only provide catalogues to existing 
customers or those businesses that have registered with it.
    The final rule provides that catalogues that are distributed solely 
between businesses are exempted from the requirements unless the 
recipient business is one that could be expected to be purchasing the 
product for the use of children instead of for resale. Examples of 
businesses that could be expected to purchase products for the use of 
children include schools, day care centers, churches, and recreational 
facilities.

C. Effective Date and Grace Period

    Section 105 of the CPSIA provides that the requirements for 
Internet advertising shall take effect December 12, 2008. It provides 
that the requirements will apply to catalogues and other printed 
materials published or distributed on or after February 10, 2009. This 
includes catalogues that were printed prior to February 10, 2009, but 
not distributed until after February 10, 2009. The CPSIA authorizes the 
Commission to provide a grace period of not more than 180 days for 
catalogues and other printed material printed prior to February 10, 
2009, during which time distribution of such catalogues and other 
printed materials shall not be considered a violation of the standard.
    Based on research and on comments received in response to the 
notice of proposed rulemaking, the Commission has determined that there 
can be relatively long lead times for developing and printing 
catalogues. Some publishers expect to distribute catalogues for as long 
as two years after printing. Thus, it is likely that there are 
catalogues in circulation now, or that have been printed, or will be 
printed over the next several weeks, that do not contain the cautionary 
statements, but that are intended for distribution after February 10, 
2009. Absent a grace period, the retailers, manufacturers, and 
importers who published the catalogues would have to stop distributing 
them on February 10, 2009.
    The catalogues still in stock would have to be discarded and 
replacement catalogues would have to be printed, a cost to the 
publishers both in terms of discarding of the catalogues and in the 
possible loss in sales if the business experienced delays in obtaining 
reprinted catalogues.
    The cost of providing a grace period--that some consumers may 
purchase games or toys from catalogues that they would not have 
purchased had they seen the cautionary labeling-- though difficult to 
quantify, is likely to be small. The same cautionary statements are 
required on the products' packaging, and a parent could return or keep 
the product out of reach until the children are older if need be.
    Even with a grace period of 180 days, all catalogues distributed 
after August 9, 2009, which includes all catalogues distributed in 
anticipation of the 2009 holiday shopping season, will have to contain 
the required cautionary statements.
    Because of the significant lead time involved in printing 
catalogues and the relatively small cost of providing a grace period of 
180 days, the Commission is providing a grace period of 180 days for 
catalogues and other printed materials.

[[Page 67736]]

D. Environmental Considerations

    The National Environmental Policy Act and the Council on 
Environmental Quality Act regulations and CPSC procedures for 
environmental review require the Commission to assess the possible 
environmental effects associated with the advertising labeling rule. As 
a labeling rule, this rule falls within the provisions of 16 CFR 
1021.5(c) which designates categories of actions conducted by the 
Consumer Product Safety Commission that normally have little or no 
potential for affecting the human environment. In the NPR, the 
Commission made a preliminary finding that neither an environmental 
assessment nor an environmental impact statement was required for this 
rule. The only comments received on this issue emphasized the 
importance of providing for a grace period to avoid having to discard 
large stocks of catalogues and print replacement catalogues. The final 
rule does include a grace period for catalogues and other printed 
materials. Because this rule will at most cause a very slight increase 
in the amount of material entering the waste stream annually, the 
Commission finds that neither an environmental assessment nor an 
environmental impact statement is required.

List of Subjects in 16 CFR Part 1500

    Consumer protection, Labeling.

Conclusion

0
Under authority of section 3 and section 105 of the Consumer Product 
Safety Improvement Act, Public Law 110-314, 122 Stat. 3016 (August 14, 
2008), the Commission amends Title 16, Chapter II, Subchapter C, Part 
1500 as set forth below.

PART 1500--HAZARDOUS SUBSTANCES AND ARTICLES; ADMINISTRATION AND 
ENFORCEMENT REGULATIONS

0
1. The authority citation for part 1500 continues to read as follows:

    Authority: 15 U.S.C. 1261-1278.


0
2. Add Sec.  1500.20 to read as follows:


Sec.  1500.20  Labeling requirement for advertising toys and games.

    (a) Scope. This section applies to catalogue and other printed 
material advertisements which provide a direct means of purchase or 
order of products requiring cautionary labeling under sections 24(a) 
and (b) of the FHSA.
    (b) Effective Date. Under the Consumer Product Safety Improvement 
Act of 2008, Public Law 110-314, 122 Stat. 3016 (August 14, 2008), 
(``CPSIA''), the effective date of the CPSIA's amendment to Section 24 
of the FHSA to require cautionary statements in catalogues and other 
printed materials is February 10, 2009. By this rule, the Commission is 
providing a grace period of 180 days, or until August 9, 2009, during 
which catalogues and other printed materials printed prior to February 
10, 2009, may be distributed without such cautionary statements. 
Catalogues and other printed materials that are printed on or after 
February 10, 2009, must have the required cautionary statements. All 
catalogues and other printed materials distributed on or after August 
9, 2009, must comply with this rule. This rule addresses only 
catalogues and other printed materials; however, the CPSIA extends the 
requirements for cautionary statements to Internet advertisements as 
well. Internet advertisements must comply with Section 24 of the FHSA 
as amended by the CPSIA no later than December 12, 2008.
    (c) Definitions. For the purposes of this section, the following 
definitions shall apply.
    (1) Ball means a spherical, ovoid, or ellipsoidal object that is 
designed or intended to be thrown, hit, kicked, rolled, dropped, or 
bounced. The term ``ball'' includes any spherical, ovoid, or 
ellipsoidal object that is attached to a toy or article by means of a 
string, elastic cord, or similar tether. The term ``ball'' also 
includes a multi-sided object formed by connecting planes into a 
generally spherical, ovoid, or ellipsoidal shape that is designated or 
intended to be used as a ball, and any novelty item of a generally 
spherical, ovoid, or ellipsoidal shape that is designated or intended 
to be used as a ball. The term ``ball'' does not include dice, or balls 
permanently enclosed inside pinball machines, mazes, or similar other 
containers. A ball is permanently enclosed if, when tested in 
accordance with 16 CFR 1500.53, it is not removed from the outer 
container.
    (2) Small ball means a ball that, under the influence of its own 
weight, passes in any orientation, entirely through a circular hole 
with a diameter of 1.75 inches (44.4 mm) in a rigid template \1/4\ 
inches (6 mm) thick. In testing to evaluate compliance with this 
regulation, the diameter of opening in the Commission's test template 
shall be no greater than 1.75 inches (44.4 mm).
    (3) Latex balloon means a toy or decorative item consisting of a 
latex bag that is designed to be inflated by air or gas. The term does 
not include inflatable children's toys that are used in aquatic 
activities such as rafts, water wings, swim rings, or other similar 
items.
    (4) Marble means a ball made of hard material, such as glass, 
agate, marble, or plastic, that is used in various children's games, 
generally as a playing piece or marker. The term ``marble'' does not 
include a marble permanently enclosed in a toy or game. A marble is 
permanently enclosed if, when tested in accordance with 16 CFR 1500.53, 
it is not removed from the toy or game.
    (5) Small part means any object which, when tested in accordance 
with the procedures contained in 16 CFR 1501.4(a) and 1501.4(b)(1), 
fits entirely within the cylinder shown in Figure 1 appended to 16 CFR 
part 1501. The use and abuse testing provisions of 16 CFR 1500.51 
through 1500.53 and 1501.4(b)(2) do not apply to this definition.
    (6) Direct means of purchase or order means any method of purchase 
that allows the purchaser to order the product without being in the 
physical presence of the product. Advertising that provides a direct 
means of purchase or order of a product would include catalogues or 
other printed advertising material that contain order blanks, telephone 
numbers or fax numbers for placing orders, and Internet Web sites that 
enable consumers to purchase a product online or through the use of a 
telephone number or fax number provided on the Internet Web site.
    (d) Advertising requirements. Any toy or game that requires a 
cautionary statement about the choking hazard associated with small 
parts, balloons, small balls, or marbles must bear that cautionary 
statement in the product's advertising if the advertising provides a 
direct means to purchase or order the product.
    (1) The advertising for any article that is a toy or game intended 
for use by children who are at least three years old but less than six 
years of age shall bear or contain the following cautionary statement 
if the toy or game includes a small part:


[[Page 67737]]

[GRAPHIC] [TIFF OMITTED] TR17NO08.093

    (2) The advertising for any latex balloon, or toy or game that 
contains a latex balloon, shall bear the following cautionary 
statement:
[GRAPHIC] [TIFF OMITTED] TR17NO08.094

    (3)(i) The advertising for any small ball intended for children 
three years of age or older shall bear the following cautionary 
statement:
[GRAPHIC] [TIFF OMITTED] TR17NO08.095

    (ii) The advertising for any toy or game intended for children who 
are at least three years old but less than eight years of age that 
contains a small ball shall bear the following cautionary statement:
[GRAPHIC] [TIFF OMITTED] TR17NO08.096


[[Page 67738]]


    (4)(i) The advertising for any marble intended for children three 
years of age or older shall bear the following cautionary statement:
[GRAPHIC] [TIFF OMITTED] TR17NO08.097

    (ii) The advertising for any toy or game intended for children who 
are at least three years old but less than eight years of age that 
contains a marble shall bear the following cautionary statement:
[GRAPHIC] [TIFF OMITTED] TR17NO08.098

    (e) Abbreviated warnings for catalogues and other printed 
materials. Abbreviated versions of the required cautionary statements 
are permitted in each individual product advertisement, provided that 
the corresponding full cautionary statements appear in the catalogue 
and a statement referring to the precise location of the full 
cautionary statements--such as the page number on which the cautionary 
statements can be found--is located at the bottom of each catalogue 
page that contains one or more abbreviated cautionary statements. If 
abbreviated cautionary statements are used:
    (1) The full cautionary statements associated with the abbreviated 
cautionary statements shall appear:
    (i) Near the beginning of the catalogue, before any catalogue pages 
that contain advertisements of products available for purchase, or
    (ii) Adjacent to the ordering information or order form in the 
catalogue.
    (2) The full cautionary statements shall be in conspicuous and 
legible type in contrast by typography, layout or color.
    (3) The full cautionary statements shall be clearly numbered 
according to the following scheme:

------------------------------------------------------------------------
              Required cautionary statement                   Number
------------------------------------------------------------------------
16 CFR 1500.19(b)(1) \1\................................               1
16 CFR 1500.19(b)(2) \2\................................               2
16 CFR 1500.19(b)(3)(i) \3\.............................               3
16 CFR 1500.19(b)(3)(ii) \4\............................               4
16 CFR 1500.19(b)(4)(i) \5\.............................               5
16 CFR 1500.19(b)(4)(ii) \6\............................               6
------------------------------------------------------------------------

    (4) The abbreviated cautionary statements shall consist of items 
1500.20(e)(3)(i) through 1500.20(e)(3)(iv):
    (i) A safety alert symbol substantially similar to that shown in 
figure 7.
[GRAPHIC] [TIFF OMITTED] TR17NO08.099

    (ii) The phrase, ``CHOKING HAZARD,'' written in capital letters.
    (iii) Numbers, separated by commas and enclosed within a single set 
of parentheses, that identify the applicable cautionary statements for 
the product being advertised, followed by a period. These numbers shall 
match the numbers used to identify each full cautionary statement, as 
specified in 1500.20(e)(2).
    (iv) A single prohibited age range written as either ``Not for 
under 3 yrs'' or ``Not for under 8 yrs,'' based on the most restrictive 
age range for all required cautionary statements for that product. 
Thus, if an advertised product requires the cautionary statement 
specified in 16 CFR 1500.19(b)(2), the prohibited age range in the 
abbreviated cautionary statement shall be ``Not for under 8 yrs.''
    (v) For example, see Figure 8 for the abbreviated cautionary 
statement for an advertisement of a product that requires the 
cautionary statements specified in 16 CFR 1500.19(b)(1) and 16 CFR 
1500.19(b)(2).

[[Page 67739]]

[GRAPHIC] [TIFF OMITTED] TR17NO08.100

    (f) Alternatives to cautionary statements for individual product 
advertisements in catalogues and other printed materials. Multiple 
identical full or abbreviated cautionary statements may be replaced 
with a single full cautionary statement under the following 
circumstances:
    (1) If all products available for purchase within a catalogue 
require the same cautionary statement, that cautionary statement, in 
full, may appear on the front cover, or equally conspicuous location, 
of the catalogue in lieu of repeating the cautionary statement within 
the catalogue, provided that it is communicated to consumers that the 
cautionary statement applies to all products in the catalogue.
    (2) If all products on one catalogue page or on two facing 
catalogue pages require the same cautionary statement, that cautionary 
statement, in full, may appear at the top of the page or pages in lieu 
of repeating the cautionary statement in each product advertisement, 
provided that it is communicated to consumers that the cautionary 
statement applies to all products on the catalogue page or pages.
    (g) Prominence and conspicuousness of labeling statements. The type 
size of abbreviated cautionary statements shall be reasonably related 
to the type size of any other printed matter in the product 
advertisement, and must be in conspicuous and legible type by 
typography, layout, or color with other printed matter in the 
advertisement and separated from other graphic matter.
    (h) Business to Business Catalogue Exception. The requirements of 
section 24(c)of the Federal Hazardous Substances Act, as amended by 
section 105 of the CPSIA, do not apply to catalogues and other printed 
materials distributed solely between businesses unless the recipient 
business is one that could be expected to be purchasing the product for 
the use of children (instead of for resale, e.g.). Examples of 
businesses that can be expected to be purchasing products for the use 
of children include day care centers, schools, and churches.

    Note: This Appendix will not appear in the Code of Federal 
Regulations.

List of Relevant Documents

    1. Memorandum from Robert Franklin, Directorate for Economic 
Analysis, to Barbara E. Parisi, Attorney, Office of General Counsel, 
``Response to Comments Raising Economic Issues Associated with 
Section 105 of the Consumer Product Safety Improvement Act of 2008 
(Concerning the Inclusion of Cautionary Labeling for Toys and Games 
in Catalogues and Other Printed Materials),'' October 2008.
    2. Memorandum from Timothy P. Smith, Engineering Psychologist, 
Division of Human Factors, Directorate for Engineering Sciences, to 
Barbara Parisi, Regulatory Affairs Attorney, Office of the General 
Counsel, ``Response to NPR Comments and Revised Requirements for the 
Size and Placement of Cautionary Statements Specified in Section 
105, Labeling Requirement for Advertising Toys and Games, of the 
CPSIA,'' October 21, 2008.
    3. Memorandum from Barbara E. Parisi, Attorney, Office of the 
General Counsel, to the Commission, ``Response to Comments Raising 
Questions Regarding the Scope of the Labeling Requirements for 
Advertising Toys and Games,'' October 24, 2008.

    Dated: November 7, 2008.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. E8-26964 Filed 11-14-08; 8:45 am]

BILLING CODE 6355-01-P