Intent, marketing, and common recognition
On this page11
The regulation applies to articles intended for use by children under three
Thirty six months, stated in the text alongside the years, and the question of what is intended for them is answered by three factors rather than by one.
The first factor is what the manufacturer says, with a condition
The manufacturer’s stated intent, such as on a label, if it is a reasonable one. So a label is evidence and not a determination, and an unreasonable claim does not bind.
That qualifier is the interesting part
Without it, an age marking would settle the question and anybody could print their way out of the regulation. With it, the marking has to be plausible against the article itself.
The second factor looks at how the article is sold
The advertising, promotion, and marketing of the article. Which is the same mechanism the lead paint ban uses when it exempts coatings marketed solely for model aircraft: a rule turning on positioning rather than on composition.
And the third looks outward
Whether the article is commonly recognized as being intended for children under three. A test against general understanding rather than against anybody’s statement.
Then the scope paragraph closes the obvious argument
The regulation does not apply to all articles to which children under three might have access simply because of presence in a household.
Which is the same sentence the lead paint ban uses
That part says its children’s article limb does not include all articles to which children might have access simply because they are present in a household. Two different Commission parts, the same device, closing the same argument.
Finding one rule reuse another’s sentence is worth noting
It means the access argument was raised often enough to be worth forestalling twice. And it tells a reader that intent, not proximity, is the consistent position of this body of regulation.
The scope list is long and concrete
Squeeze toys, teethers, crib exercisers, crib gyms, crib mobiles, pull and push toys, pounding toys, blocks and stacking sets, bathtub and wading pool and sand toys, rocking and spring and stick horses, chime and musical balls, jacks-in-the-box, stuffed and plush and flocked figures, preschool toys and games and puzzles, riding toys, infant and juvenile furniture, dolls, and toy vehicles.
And it is explicitly open
Such articles include, but are not limited to, that list, and then also any other toys or articles intended, marketed or labeled to be entrusted to or used by children under three.