4. When can only the packaging be marked and not the product?
The Commission believes that Section 103(a) sets forth the expectation that, in most
instances, both the packaging and the product will be marked. The statute recognizes,
however, that this might not always be practicable. Some circumstances where the
Commission considers that marking the product itself might not be practicable include:
(1) If a product is too small to be marked. Legislative history recognizes that a product’s
size is a primary consideration in determining if marking only the packaging is feasible.
See H.R. Rep. No. 501, 110th Cong., 1st Sess. 32 (2007).
(2) If a toy is meant to be stored in a box or other packaging, such as games with boards
and small game pieces. There, the board and the box should be marked, but the
individual game pieces do not need to be. This is another example recognized in the
legislative history. See H.R. Rep. No. 501, 110th Cong., 1st Sess. 32 (2007). The
Commission believes that this principle would similarly apply to arts and crafts kits for
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children. Again, only the storage box and one integral part of the kit needs to marked and
not every item in the crafting kit. Where a number of small products such as marbles,
buttons, beads, etc. are packaged together, the Commission believes that marking the
package would be sufficient. For products that are meant to stay with or be contained in
their original packaging, the packaging would be considered part of the “product.”
(3) If a product is sold through a bulk vending machine, the item does not need to be
individually marked but the package or carton in which such products are shipped to the
retailer should be marked. The Conference Report recognized that marking each
individual product in such circumstances may not be practical. See H.R. Rep. No. 787,
110th Cong., 2d Sess. 67 (2008).
(4) If a physical mark would weaken or damage the product or impair its utility.
(5) If a product surface would be impossible to mark permanently such as those made of
elastics, beads, small pieces of fabric (such as jewelry, hair ornaments, etc.), or craft
items like pipe stems, or natural rocks.
(6) If the aesthetics of the product would be ruined by a mark and a mark cannot be
placed in an accessible but inconspicuous location.
