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Advertising and Choking Hazard Warnings Under Current Safety Regulations

The Consumer Product Safety Improvement Act of 2008 (CPSIA) and the Federal Hazardous Substances Act collectively require manufacturers and ultimate product sellers to display warnings and cautionary statements about choking hazards for children's toys and games. The toys and games at issue are those intended for sale to children ages 12 and under. The warnings and statements must be displayed on packages for the toys and games, as well as in some advertising materials. The warnings and statements must also be displayed for online advertisements for applicable products as of Dec. 12, 2008.

Specific Choking Hazard Warning Requirements for Sellers

Sellers need to comply with certain requirements as of Dec. 1, 2008, whether their products are sold in a brick-and-mortar or online environment. In an online environment, sellers need to make a determination as to whether a cautionary statement or choking hazard warning applies to the particular product they are trying to sell. A seller also needs to provide necessary statements to the online service as part of the listing or descriptive material for the product. In some online settings, a seller may be responsible for performing technical functions required to upload the appropriate warning or hazard text.  If you believe a seller has not uploaded a sufficient warning or hazard text, contact a personal injury attorney.

Sellers Must Verify Whether Their Products Require Appropriate Warnings

The responsibility falls upon sellers to verify whether their products require the inclusion of cautionary statements or warnings for choking hazards under the new safety regulations in the post-2008 regulatory environment. The verification process boils down to answering several key questions:

  • Is the product a toy or game? (Note: Books are included if they are packaged with items such as jacks, toys, marbles, balloons, or other small parts, so the product may technically belong to other product categories and still require a warning.)
  • Is the product intended for children?
  • Is the product's target age range for children age 12 years and younger?

Sellers can verify whether a particular product must include the hazard warning and/or cautionary statements by contacting the manufacturer of the product to make a specific inquiry. Sellers can also accomplish the verification process by reviewing the product's packaging to ascertain whether there are any warnings or statements included in or on it. Ultimately, the product manufacturer for a children's toy or game is the party liable and responsible for making the determination of whether hazard warnings or cautionary statements must apply to that manufacturer's product.

Sample Choking Hazard Warning Text

Often, warnings or cautionary statements appear in text boxes in graphics or fonts that are easily visible and legible to customers. For example, a typical choking hazard warning might read:

"WARNING: CHOKING HAZARD – Game contains small parts. Not suitable for children under 3 years."

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