Kids' Product Promotions and CPSC Rules

A store that sells toys, baby gear or kids' clothing can run the same offers as any other Shopify store: a free sample, a gift tier, a holiday set. Three federal rules change how to run them. One concerns what counts as a children's product and what must be certified. One concerns choking hazard warnings in an online listing. One concerns collecting an email address from a child. This post goes through each rule from the agency's own text, says what the pages we read do and do not address, and turns them into planning steps for a free item, a holiday offer and a sign-up form. It is not legal advice; confirm with a lawyer or the agency.

What counts as a children's product, and what that requires

The Consumer Product Safety Commission describes a children's product as "a consumer product designed or intended primarily for children 12 years of age or younger." Section 14 of the Consumer Product Safety Act, in the CPSC's words, "requires domestic manufacturers and importers of children's products to certify in a written Children's Product Certificate (CPC)", and the certificate must be based on "test results from a third-party, CPSC-accepted laboratory."

Two points follow from the text. First, the definition turns on design and intended use. It does not mention price, and it does not say the product must be sold. A small toy that you hand out free with an order is, by that wording, still a product designed for children. Second, the certificate duty falls on the domestic manufacturer or importer. A store that buys finished goods from a domestic supplier should ask that supplier for the certificate, and a store that imports them or makes its own is in the group the statute names as issuing it.

The CPSC pages we read do not address promotional giveaways, premiums or retailers by name, so this post makes no claim about how the rules treat them. If your free item is a branded toy you source yourself, ask the CPSC. Its Small Business Ombudsman is named on the agency's small parts page for that kind of question.

Choking hazard warnings in an online listing

The CPSC says children's products intended for use by children under 3 that present a choking, aspiration or ingestion hazard because of small parts are banned under 16 CFR part 1501. For toys and games intended for children who are at least 3 but under 6, 16 CFR 1500.19 requires a cautionary statement if the toy or game includes a small part. A small part is an object that fits entirely within a test cylinder defined in 16 CFR part 1501.

The part that catches online sellers is advertising. Section 1500.20 says that a toy or game that requires a cautionary statement about choking hazards from small parts, balloons, small balls or marbles must carry that statement in its advertising if the advertising gives a direct means to purchase or order the product. The same section defines direct means of purchase to include internet web sites that let consumers buy a product online, and notes that the Consumer Product Safety Improvement Act extends the requirement to internet advertisements. The CPSC's small parts page says the same: any advertising for children's toys subject to the choking hazard labeling requirement must use the same warning label under section 1500.20.

So a product page that lets a shopper add a puzzle with small pieces to the cart is an advertisement with a direct means of purchase. The regulation prints the statements as figures, so read them in the eCFR and copy the wording exactly; do not paraphrase a warning.

Who decides the intended age? Section 1500.19(c) lists the factors: the manufacturer's stated intent if reasonable, the advertising, marketing and promotion of the article, and whether the article is commonly recognized as intended for children in that age group. Your own copy counts. If a product page says "perfect for toddlers" and the item has small parts, the page has stated an intended age, and your marketing is one of the factors.

Email sign-ups and children under 13

The Children's Online Privacy Protection Rule, 16 CFR Part 312, defines a child as an individual under 13, and counts online contact information, including an email address, as personal information. Section 312.3 makes it unlawful for an operator of a website directed to children, or an operator with actual knowledge that it is collecting personal information from a child, to collect it in violation of the rule. Section 312.5 requires verifiable parental consent before any collection, use or disclosure of personal information from children.

Whether your site is directed to children is a facts question. Section 312.2 says the FTC considers subject matter, visual content, use of animated characters or child-oriented activities and incentives, music, the age of models, language and whether the advertising on the site is directed to children. A store of kids' toys with cartoon characters and a "join the club" box next to a game should read that list carefully. The rule also defines a mixed audience site and says any age check must be done in a neutral manner that does not default to a set age or encourage visitors to falsify age information. This post draws no legal conclusion about any store. It shows where the text is.

Offers that stay inside those rules

• A free item with a children's order. Match the free item to the age of the main item. A free sample for a baby product should not be a small-part item. Ask your supplier for the item's Children's Product Certificate, and keep it with the purchase record, the same as for anything you sell.
• A holiday set. The holiday gift set rules in Holiday Gift Set Bundles apply, and each item in the set carries its own warning if it needs one. Put the warning next to the set's contents list, not only on a separate page.
• A birthday or club offer. Write the sign-up for parents: "Parents, join for offers." Do not ask a child's age or name in the form. If you ever learn that a subscriber is under 13, the rule's actual-knowledge language is a reason to stop collecting and ask a lawyer.
• Free wording. Say what the shopper must do to get the item, as the free gift with purchase guide explains.

Supplement Store Promotions covers a different regulated vertical. The two are separate sets of rules.

Building a free sample offer

Start from the Free sample with purchase template in Freebies Engine by Log Studio Lab, described in the catalog as "Every order gets a small free product." Choose a sample that is age-appropriate for the main purchase and has its certificate on file. For a test plan, see Free Sample With Purchase: A Test Plan. Plan requirements are on the pricing page.

This post summarizes federal rules for planning. It is not legal advice, and it does not cover state law.