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Itís cool but what is it?

Date: 1/9/12

INTRODUCTION
Your company’s product development team has just come up with the latest and greatest invention, sure to grab the interest and attention, not to mention the spending money, of young teenagers everywhere. Sure it’s a bit risky, but it sure is fun and, after all, that’s the price for being cool, right? Then, in-house counsel asks the question “What standard did you guys test this product to – a toy standard or sports equipment standard?” This principal inquiry--is it a toy or is it sports equipment-- determines which testing standards apply to confirm the product is safe enough to be placed on the market. New guidance from the European Commission will assist companies in this regard as they look to place their latest blockbusters on the European market.

ARTICLE
The European Commission will soon publish guidelines (“the Guidance Document”) on the application of the Toy Safety Directive 2009/48/EC (the “TSD Directive”) with regard to the distinction between sports equipment and toys.  The Guidance Document lays down concrete criteria to assist manufacturers, retailers, testing labs and government officials in making a distinction which, until now, has often seemed to be more art than science.  More fundamentally, the fact that this guidance is being issued attests to the basic point that sports equipment is essentially different from toys, and that the EU legislator does not want the two groups tested to the same standard.

Indeed, new products intended for use by children pose a constant challenge for the testing labs and national authorities of EU Member States to identify the applicable set of safety standards.  The Guidance Document highlights the fact that the TSD expressly excludes sports equipment from its scope, emphasizing it is not correct to assume that any product intended for children is to be treated as a toy. 

I. Definition of “sports equipment”
With no statutory definition in EU legislation, the Guidance Document cites dictionary definitions of “sports equipment”, and elaborates by referring to the Council of Europe definition of “sport” :  “all forms of physical activity which, through casual or organised participation, aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels”.  Important here is the recognition that “sports equipment” is broader than just equipment designed for use in competition.

II. Which criteria distinguish “sports equipment”?
The Guidance Document sets out four criteria to distinguish sports equipment from toys :  the intention of the manufacturer when placing it on the market, distinctive characteristics of the product, specific instructions or conditions for product use, and price.

The intention of the manufacturer is determined by its declaration of intended use.  That declaration can be supported by the choice of distribution channel, the placement of the product within the store, and by the product’s packaging and advertising.  For example, the Guidance Document recognizes that packaging and advertising emphasizing the fact that the product is built and has features suitable for sports use and the physical challenge of using it successfully is more likely to be considered sports equipment.

Furthermore, sports equipment often have distinctive characteristics, notably in the materials used, compared to toys.  More controversial is the Guidance Document’s reference to “bright, appealing colours with themes designed to attract or entertain children” as a mark of toys.

With regard to specific conditions of use, the Guidance Document cites, as elements characteristic of sports equipment, such factors as learning and coaching, adult supervision, the use of protective equipment, specific rules for children, and use in places specifically intended for that purpose.

The price can also serve as an indicative factor, as sports equipment have distinctive designs and characteristics to enhance proper use and protection, and are often more expensive than toys due to the quality and materials used to provide those characteristics.

III. The applicable safety standards
In the EU, the TSD applies to toys and the applicable testing standard is EN 71 .  For children’s sports equipment, the General Product Safety Directive 2001/95/EC (“GPSD”) applies and the product must comply with the safety standards set in that framework.  However, there are few existing standards for sports equipment.   Otherwise, the manufacturer must develop the appropriate testing protocol to establish that a given piece of children’s sports equipment meets the GPSD safety requirements.

Because children constitute the most sensitive group of consumers, from the EU product safety perspective, the challenge for manufacturers of children’s sports equipment not covered by an existing standard, is to convince the relevant national authorities (and the testing labs) that the mere fact the sports equipment is intended for use by children does not justify application of the EN 71 test standards.  The Guidance Document helps in this regard, highlighting the express exclusion of sports equipment from coverage by the TSD, and identifying many differences between sports equipment and toys justifying the application of different standards.

CONCLUDING REMARKS
Testing to the appropriate standard ensures that a product placed on the market meets the applicable safety requirements.  The new European Commission Guidance Document will help both private operators and national authorities distinguish between “toys” and “sports equipment” so that products will be tested according to the proper standards.  As this assessment is done on a case-by-case basis, considering the specific characteristics of each product, the Guidance Document does not answer all questions.  Nonetheless, it points in the right direction.

Article By:
Laurent Ruessmann, Partner
Crowell & Moring LLP
lruessmann@crowell.com

 

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