August 22, 2017

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Spinning Out of Control? Fidget Spinner Regulation and Safety

Children of all ages—and many adults—can’t keep their hands off fidget spinners, the best-selling toys of the spring and one of hottest new fad toys on the market. Schools in some states have banned them, while others find them helpful for children with attention-related difficulties. Predictably, fidget spinner manufacturers and distributors are feeling the heat of the spotlight, as reports emerge that children are hurting themselves with these toys. Regulators, distributors, and consumers now must sort out how the toys should be marketed and used.

What Is a Fidget Spinner?

Each spinner has a bearing in the center, covered by a circular pad, which the user holds while the toy spins. Most spinners have two or three prongs, though some have as many as six. The toys and bearings at their centers are made from various metals and plastics in solid colors or with patterns. Some spinners have a small battery to power a light-up function.

The toys come in a variety of shapes, colors, and designs. This variety is possible for two main reasons:

  1. Unlike fad toys of the past, the fidget spinner was not branded or promoted by one single, major retailer or manufacturer. Manufacturers are not competing with an “original” protected design: that is, nobody has a meaningful trademark, copyright, or patent on “fidget spinner.”
  2. The direct-to-consumer model fueled the toy’s popularity. Mostly sold online, these spinners are already in high demand without much advertising spend.

Why Are Some Calling the Toys Dangerous?

fidget spinnersFidget spinners have small parts and sometimes small batteries. Certain models, including those with only two prongs, are small enough to be swallowed whole. Consumers have reported that small parts can fall out of certain models; whether this occurs during proper use is not clear. Regardless of whether use was improper, when small parts fall off of a toy, children can get hurt.

The U.S. Consumer Product Safety Commission has indicated that is investigating two incidents involving fidget spinners. The first incident involved a ten-year-old who put a small part in her mouth and accidentally swallowed it. In the second, a five-year-old choked on a piece of his fidget spinner, despite his mother’s warning not to put it in his mouth. Both children needed surgery to remove the parts.

Are Fidget Spinners Regulated?

Under federal law, all toys sold in the U.S. must comply with federal product safety standards, including the American Society for Testing Materials’ regulation F963, also known as the “Toy Standard.” The Toy Standard incorporates relevant safety measures already required under federal law, and includes additional guidelines and test methods to prevent injuries from choking, sharp edges, and other potential hazards. Products intended for children three to six years old must be labeled if they contain small parts. Any products intended for children under 12 must be third-party tested to ensure compliance with federal regulations.

But when products are not made in the U.S. or sold through U.S. distributors, ensuring compliance with federal law becomes a challenge. Consumers who purchase directly from manufacturers abroad could receive products made without any consideration of the Toy Standard.

Even for those manufacturers who want to comply, regulating fidget spinners is not one-size-fits-all. Toys with batteries differ from those without; toys of different materials, sizes, and shapes will test differently, and may require different warning labels. The spinners available online and at other toy stores have wildly different warnings. Some stores have indicated that all fidget spinners are intended for ages 12+, while some stores offer products that list no recommended age at all.

Spinning in the Right Direction?

Fidget spinner manufacturers should takes steps to confirm that products comply with the Toy Standard. A Children’s Product Certificate should accompany fidget spinner shipments to confirm that the toys meet the Toy Standard, using CPSC-certified, third-party laboratories. It is also important to monitor incident reports and determine whether there is a pattern of incidents which must be reported to the CPSC.

Distributors should also require Children’s Product Certificates to confirm that the fidget spinners they sell meet the Toy Standard. Brick-and-mortar toy stores and online vendors may wish to provide their own age and use warnings to customers purchasing fidget spinners. Finally, parents and consumers should follow the Toy Association’s guidance on fidget spinners to decide whether the product is a good choice for their own child.

© 2017 Schiff Hardin LLP

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Jonathan judge, Trial, Regulatory Attorney, Analytics
Partner

Jonathan Judge is a trial and regulatory lawyer who believes in the power of analytics to help clients make better decisions.

Jonathan counsels, defends, and tries cases for manufacturers of juvenile, household and industrial products in matters across the United States, drawing from his depth of experience and a devotion to his clients. Whether his client is a product manufacturer seeking regulatory compliance or a corporation facing a substantial lawsuit, Jonathan knows that every client has a story.

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