The Challenge Of Regulating Fidget Spinners

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The Challenge Of Regulating Fidget Spinners

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Law360

Sarah K. Angelino, Jonathan Judge

Children of all ages — and many adults — can’t keep their hands off fidget spinners, one of the best-selling and hottest 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 some children have hurt themselves with these toys. Regulators, distributors and consumers now face the challenge of helping to keep children safe when using the many varieties of fidget spinners produced by dozens of manufacturers.

What Is a Fidget Spinner?

The fidget spinner is the current “it” toy: it is highly addictive, relatively inexpensive, and easily obtainable. 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 the toys’ 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. Although manufacturers offer a wide variety of fidget spinner options, consumers have made a sport of creating their own homemade copies with guidance from YouTube videos.

Like popular toys of the past, schoolyard buzz quickly piqued children’s desires for fidget spinners before most adults even knew what they were. But fidget spinners are different from other chart-topping toys in two important ways, and both distinctions implicate how the toys are regulated.

First, unlike past fad toys, no single major retailer or manufacturer has branded or promoted the fidget spinner. Manufacturers are not competing with an “original” protected design that kicked off the trend: that is, nobody has a meaningful trademark, copyright or current patent on “fidget spinner.” This is a positive for variety and a negative for accountability. With no “original” manufacturer, and with so many producers on the market, no one company faces adverse reputational effects as a result of product safety concerns. Companies have little incentive to distinguish themselves from other producers based on high quality or name recognition because consumer demand appears to be fueled by variety above safety, quality or brand.

Second, the direct-to-consumer model propelled the toy’s popularity. Mostly sold online after word-of-mouth endorsements, these spinners achieved high demand without much advertising spend. This model is good for cost-conscious consumers, who benefit from the lower cost goods because less has been spent on advertising and eye-catching packaging. However, this sales model also makes it hard for consumers to determine the manufacturer and distributor of the particular product that they own. Consumers who have a safety issue could have difficulty identifying a specific variety of toy made by a specific manufacturer, and even if they could, other consumers may not know whether their toy is affected by the same safety concern.

Why Are Some Calling the Toys Dangerous?

Fidget spinners have small parts and sometimes small batteries. Consumers have reported that small parts can fall out of certain models, which could pose a danger to small children. But it is not clear (i) whether this occurs during proper use, (ii) which manufacturers are involved, or (iii) which specific product is implicated in these reports.

The U.S. Consumer Product Safety Commission has indicated that it is investigating at least two fidget spinner-related incidents. The first incident involved a 10-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. After the CPSC reported that it was investigating these two incidents, news outlets highlighted another incident, in which a nine-year-old choked on a metal bearing that came out of her toy. The girl was treated by her firefighter father and did not need surgery.

Comparing the few reported incidents — all involving products of unnamed manufacturers — to the millions of fidget spinners sold could complicate a safety evaluation. Some fidget spinner manufacturers may offer products that have been appropriately safety tested and labeled. However, the market is flooded by dozens of manufacturers, and it is possible that one or even several manufacturers make toys that could be unsafe. Without knowing whether these three incidents involve the same or different manufacturers, some consumers may conclude that all fidget spinners are unsafe. Other consumers who purchased from a “bad egg” manufacturer may never be made aware that their specific toy is unsafe.

Are Fidget Spinners Regulated for Safety?

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 years old 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, and they might not even know that this is an issue.

Even for those manufacturers that want to comply, regulating fidget spinners is not a one-size-fits-all proposition. 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.

As news of the potential hazards associated with certain fidget spinners has spread, the toys have faced increased scrutiny from regulators worldwide. For example, German customs agents are cracking down on fidget spinners, stating that too many of the toys performed poorly in testing conducted by appropriate market surveillance authorities and were not accompanied by the requisite manufacturer information or instructions for proper use. U.K. officials pulled hundreds of fidget spinners from store shelves after determining that the toys they examined contained no safety information. In Australia, one manufacturer recalled battery-operated fidget spinners after concluding that the unsecured battery compartment could pose a risk to young children ingesting or choking on batteries.

Spinning in the Right Direction?

Despite the increased regulatory attention, fidget spinners seem likely to remain popular with children and adults alike. Regulators, manufacturers, distributors and consumers can all play a role in helping consumers to use fidget spinner toys safely.

Fidget spinner manufacturers can include appropriate age warnings and instructions for proper use with the toys. Manufacturers should also take 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 for manufacturers to monitor reports of incidents involving their products and determine whether there is a pattern of incidents that must be reported to the CPSC. Any company that has received an incident report involving one of their products should consider consulting experienced CPSC reporting counsel.

Distributors in the U.S. 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.