A new year means new laws, rules and regulations.  Advertising and consumer protection laws are no exception.  We already posted about New York’s amendments to its auto-renewal statute, and the FDA’s new rule and guidance on direct-to-consumer prescription drug advertising.  But did you know about the new law in California, which was signed in 2021 but just went into effect on January 1, 2024, requiring retailers to provide gender neutral sections for the toys they sell? 

AB 1084 amends the state’s Unruh Civil Rights act to require a retail department store that is (i) physically located in California; (ii) has a total of 500 or more employees across all California retail department store locations; and (iii) that sells childcare items or toys to maintain a gender neutral section or area in which a reasonable selection of the items and toys for children that it sells shall be displayed, regardless of whether they have been traditionally marketed for either girls or for boys.  So, retailers that have typically segregated their Barbies from their Legos now must also maintain a single section for both.  State and local regulators are empowered to bring enforcement actions and violators are liable for a civil penalty not to exceed $250 for a first violation or $500 for a subsequent violation.  There is no private right of action specifically provided for in new section.

Not surprisingly, an argument in support of the legislation was concern about the pernicious effects of gender stereotyping.  One proponent, Equality California, stated “Implying or stating that certain children’s products are only appropriate for certain genders stifles the ability of California’s youth to grow as their authentic selves, reinforces harmful gender stereotypes in the minds of people of all ages and has measurable mental health implications.”  Interestingly, proponents also cited the pernicious effect of the junior pink tax: apparently not only are products and services marketed to adult women priced higher than those marketed to adult men, but toys are too.

The law defines “childcare item” as any product designed or intended by the manufacturer to facilitate sleep, relaxation, or the feeding of children, or to help children with sucking or teething, which means that the stores covered extend beyond traditional toy stores. And “toy” is defined as something intended for those 12 or under to play with. 

The law specifically allows the retailer to label the gender neutral section at its discretion.  And it does not require the retailer to have three toy sections: a retailer could just sell all toys in one gender neutral toy section for all kids.  However, it’s unclear what constitutes a “section or area”: could a retailer segregate the Barbies from the Legos by shelf without triggering the application of the statute?  How big does the toy-dedicated space have to be to constitute a “section or area”: would a few toys at the cash register in a general purpose store constitute a “section” or “area”?  I’m guessing that the state may proceed cautiously in enforcing the new law given some of these ambiguities.

What is clear is that retail stores in California must now recognize what kids have always known: it’s fun to play with all kinds of toys and there’s really no such thing as a boy’s toy or a girl’s toy.  What’s also clear is that a new law like this, as well as NAD’s recent case addressing sexist video game ads, shows both that gender stereotyping is alive and well and that the adults in the room are taking steps to address it.  Will pay equity be next?