Packaging with "Play" Value

Increased competition has spurred many makers of consumer products to maximize every available chance to position and grow their brands. That often includes not only enhancements in functionality, but pulling out all the stops to make the package more unique and eye-catching. Particularly with certain types of products intended for children, that sometimes means developing packaging that has independent play value. Examples might include a carton that can be shaped into an origami figure, a colorful package in the shape of a car, or toy-shaped food dispensers. Producers of those types of packaging products may not simply face the usual regulatory requirements and liability risks common to all packaging manufacturers, but enhanced regulatory and liability risk because the package itself is treated or intended to function as a toy.

Toys and articles intended for use by children are subject to special regulations administered by the United States Consumer Product Safety Commission (CPSC) pursuant to its administration of the Federal Hazardous Substances Act (FHSA).1 The FHSA sets forth mandatory standards and tests for toy safety in the United States, and manufacturers of any toy product must be familiar with these requirements. Further, under the FHSA, any toy or other article intended for use by children that presents certain mechanical hazards, e.g., by failing certain prescribed sharp-edge2 and sharp-point tests,3 may be deemed a "banned hazardous substance." If a company's package is treated as a toy or article intended for children and qualifies as such a "banned hazardous substance," the package may be subject to a recall by the CPSC. Recalls typically also include a required public notice campaign about the hazard.4 Additionally, the manufacturer could potentially be subject to civil penalties for introducing such a product into commerce.5

In determining, in the first instance, whether a packaging product (or any household item) constitutes a toy or an article intended for use by children, the CPSC staff generally looks at both the manufacturer's subjective intentions, the advertising and marketing of the product contained in the packaging, and the design and play value of the product (in this case, the packaging) itself. Experts in human factors and child psychologists can often provide guidance on whether it is reasonably foreseeable that a child will interact with the packaging as a toy and, if so, how a child will interact with it, and with what risks. Some questions to be asked include, for example:

• Could the child harm himself by inserting the package or a part of it into his or her body, or by mouthing the package or its surfaces?
• Could the child utilize the packaging in such a manner as to starve himself or herself of air through suffocation, asphyxiation, or strangulation?
• Could the child suffer cuts or lacerations through exposure to sharp edges, sharp points, metal fasteners, or pinch points?

If there is a reasonable possibility that children will treat packaging as a toy or object of play, the manufacturer or packaging vendor, to reduce or eliminate risk, will be wise to have a reputable testing facility test the packaging for conformance with requirements of the American Society of Testing Material's "Standard Consumer Safety Specification for Toy Safety," or ASTM F963, the toy industry's leading voluntary standard. This voluntary standard incorporates various mandatory toy testing requirements already prescribed under the FHSA, as well as other testing requirements. The most relevant of ASTM's F 963's tests would include, for example, those for flammability;6 the harmful presence of lead or other toxic compounds such as arsenic, chromium, and selenium in paint or other surface coatings;7 sharp edges and sharp points, as already mentioned;8 the thinness of films used in packaging to minimize asphyxiation hazards.9

Conformance with these tests does not necessarily insulate a manufacturer from all liability risk that may arise from a child's accident with a toy-like packaging item, but nonconformance makes a manufacturer much more vulnerable.10 Further, conformance with these tests could provide important protection against any adverse regulatory action considered by the CPSC. Consequently, familiarity with these requirements is a must for any packaging producer making products that might be treated as a toy.

FOOTNOTES

115 U.S.C. §1261 et seq.

2See 15 C.F.R. §1500.49 (technical requirements for determining a sharp metal or glass edge in toys and other articles intended for use by children under eight years of age).

3See 15 C.F.R. §1500.48 (technical requirements for determining a sharp point in toys and other articles intended for use by children under eight years of age).

415 U.S.C. §1274(a) & (b). See also 15 U.S.C. §1274(c) (recall authority against toys or objects intended for use by children that are not, strictly speaking, ?banned hazardous substances,? but which contain a defect that creates a substantial risk of injury to children).

515 U.S.C. §1264.

6ASTM F963, 4.2

7ASTM F963, 4.3.5 et. seq.

8ASTM F963, 4.7-4.7.3; 4.9.

9ASTM F963, 4.12.

10Restatement (Third) of Torts: Products Liability, §4.