Law Offices of Steven W. Hansen

Notice of Stay of Enforcement Pertaining to Bicycles and Related Products

2009-07-01T07:58:00.000-07:00

Record of Commission Action

Commissioners Voting by Ballot*

Commissioners Voting: Acting Chairman Thomas H. Moore

Commissioner Nancy A. Nord

ITEM: Stay of Enforcement of Lead Content Limits for Bicycles and Related Products (Briefing Package dated May 21,2009, OS No. 5724)

DECISION:

The Commission voted unanimously (2-0) to issue the Federal Register (FR) notice as drafted. The FR notice announces a stay of enforcement of the lead content provisions of section 101 (a) of the Consumer Product Safety Improvement Act of 2008, Public Law 110-314, for certain component parts and materials pertaining to bicycles, jogger strollers and bicycle trailers primarily intended for children 12 years and younger. Acting Chairman Moore and Commissioner Nord issued the attached statements with their votes.

* Ballot vote due June 3, 2009 (Received June 19 and 22, 2009)

STATEMENT OF THE HONORABLE THOMAS H. MOORE ON THE NOTICE OF STAY OF ENFORCEMENT OF THE LEAD CONTENT LIMITS FOR BICYCLES AND RELATED PRODUCTS

June: 19,2009

From its inception, the Consumer Product Safety Commission focused its attention on bicycles. The bicycle was one of the earliest products for which the Commission issued mandatory regulations. At the time, bicycles ranked number one on the Commission's product hazard index and the agency determined that many of the injuries children and adults were sustaining on bicycles were attributable to mechanical and structural problems. Anything that could potentially affect the structural or mechanical integrity of children's bicycles would still be an issue of the highest concern at the agency.

I have been watching for some time now what appears to be a growing number of bicycle recalls involving cracking frames, breaking handlebars and stems, and breaking forks. There have been almost 35 in the last 8 years. Because these were voluntary recalls, our staff was not called upon to analyze the causes of the failures. Thus we do not know if there was a common flaw in these cases. Many of these bicycles were higher end models, and, therefore, likely lighter weight bikes made from composite materials. It may be that the lower amount of lead in these products had nothing whatsoever to do with their failures, but it is worrisome enough for me not to proceed to a reduction of lead in certain components of children's bicycles until all the necessary testing is done to ensure that the substitutes for lead do not compromise the structural or mechanical integrity of these bicycles. Therefore I am voting to approve a two-year stay of enforcement to give the bicycle industry additional time to do the development and testing work that will be required to resolve this issue. As:a result of the stay all bicycles currently on the market (whether new or used) can be sold or otherwise distributed, new bicycles can continue to be manufactured, and repairs to bicycles can proceed as usual

STATEMENT OF COMMISSIONER NANCY NORD ON THE STAY OF ENFORCEMENT OF THE LEAD CONTENT LIMITS FOR BICYCLES

Junc~ 22, 2009

The Notice of Stay of Enforcement of the lead provisions of the Consumer Product Safety Improvement Act (CPSIA) with respect to children's bicycles is our latl~st effort to bring common sense to a law having unintended and adverse consequences on both consumers and product sellers. Although there is no evidence that riding bicycles presents a credible risk of lead poisoning, the inflexible nature of the CPSIA jeopardizes children's access to new and used bicycles.

From the standpoint of the consumer, enforcement of the law as written by the Congress would limit the availability and increase the costs of a product that is almost synonymous with childhood. But most importantly, because lead adds to the strength of the metal used and has other useful attributes, enforcement of the law could adversely impact the safety of children"s bicycles, leading to more deaths and injuries. A stay of enforcement is our only option to protect children.

While the stay of enforcement will allow children's bicycles to continue to be sold over the next two years, the stay also contemplates that manufacturers develop plans to reengineer their products to remove the lead from the metal used in children's bicycles. In other words,. we are requiring that manufacturers use scarce resources in challenging economic times to attempt to address a risk that children just do not encounter.

It is very troubling that the commission has had to resort to using stays of enforcement to avoid the unexpected, and, in some cases, the dangerous consequences that would result from enforcement of the CPSIA. Such a result does not increase consumer confidence and creates uncertainty in the marketplace. There are those who would add that, at some point, regular use of stays opens the agency up to legal challenge for not enforcing the law.

I have characterized such stays of enforcement as 'time out' for Congress and for the agency, together, to take deliberate steps to amend this law. Clearly the agency needs more flexibility to address real safety issues and should not be required to use its limited resources to regulate products that do not present safety risks to consumers. I hope Congress and the agency will profit from this 'time out' to make the CPSIA truly effective for the consumer. CPSC Hotline: 1-800-62i8-CPSC (2772). www.cpsc.gov

CONSUMER PRODUCT SAFETY COMMISSION

Notice of Stay of Enforcement Pertaining to Bicycles and Related Products

AGENCY: Consumer Product Safety Commission.

ACTION: Stay of enforcement.

SUMMARY: The Consumer Product Safety Commission (“CPSC” or “Commission”) is announcing its decision to stay enforcement of section 101 (a) of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) with regard to certain parts of bicycles, jogger strollers, and bicycle trailers designed or intended primarily for children 12 years of age or younger. The Commission is staying enforcement of the specified lead level as it pertains to certain parts of these products, specifically components made with metal alloys, including steel containing up to 0.35 percent lead, aluminum with up to 0.4 percent lead, and copper with up to 4.0 percent lead.

DATES: This stay of enforcement is effective on June 30, 2009 and will remain in effect until July 1, 2011. The Commission may, based on evidence submitted to the Commission as described in the SUPPLEMENTARY INFORMATION portion of this document, decide to continue the stay for an additional period of time.

FOR FURTHER INFORMATION CONTACT: John “Gib” Mullan, Assistant Executive Director for Compliance and Field Operations, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814; e-mail jmullan@cpsc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On August 14, 2008, Congress enacted the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), Public Law 110-314, 122 Stat. 3016. Section 101(a) of the CPSIA phases in declining limits on allowable lead content in children's products (defined as a consumer product designed or intended primarily for children 12 years of age or younger), starting on February 10, 2009 with 600 ppm and decreasing to 300 ppm on August 14, 2009. On August 15, 2011, the lead limit will be 100 ppm unless the Commission determines that a limit of 100 ppm is not technologically feasible for a product or a product category. The law does contain certain exclusions from the lead limits. One is for component parts that contain more than the allowable lead content, but where the component is not accessible to a child through normal and reasonably foreseeable use and abuse. The Commission can also determine, for certain electronic devices, that it is not technologically feasible for them to comply immediately with the lead limits and shall establish a schedule by which such devices shall be in full compliance unless the Commission determines that full compliance will not be technologically feasible for such devices within a schedule set by the Commission. The Commission also, under section 101 (b)(1) of the CPSIA may exclude a specific product or material that exceeds the lead limits if the Commission determines on the basis of the best available, objective, peer-reviewed, scientific evidence that lead in such product or material will neither: (1) Result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing, breaking, or other children's activities, and the aging of the product; nor (2) have any other adverse impact on public health or safety.

On March 11, 2009, the Commission issued a final rule on procedures and requirements for seeking, inter alia, an exclusion under section 101(b)(1) of the CPSIA for materials and products that exceed the lead content limits. 74 FR 10475. The final rule set forth: (1) That a request for exclusion must be accompanied by evidence that will meet the statutory test for the exclusion outlined above; and (2) that the Office of Hazard Identification and Reduction (“EXHR”) staff would evaluate the evidence and provide a scientific recommendation to the Commission as to whether the party submitting the request had met this statutory test.

The Bicycle Product Suppliers Association (“BPSA”) filed a petition to exclude a class of materials for certain parts of bicycles, jogger strollers, and bicycle trailers intended for children ages 12 and younger under section 101(b)(1) of the CPSIA. The petition was submitted prior to March 11, 2009, the date of the issuance of the final rule on procedures or requirements for seeking an exclusion under section 101(b)(1) of the CPSIA. The Commission has decided to treat this petition as a request for exclusion under these procedures. The petitioners sought exclusion for components made with metal alloys, including steel containing up to 0.35 percent lead, aluminum with up to 0.4 percent lead, and copper with up to 4 percent lead. Specified components include, but are not limited to: Tire valve stems, spoke nipples, brake levers, and brake lever bushings.

The petitioners submitted an exposure study, extrapolated from the “best-available existing data” based on an analysis of the lead in metal jewelry (for an aluminum and a brass alloy) and a faucet (for a brass alloy). This study concluded “estimated lead intakes from bicycle and related product components are well below background intakes of lead from food and water, and * * * such intake will not result in a measurable impact on blood lead levels in children * * * .” Exposure Evaluation of Manufactured Components in Consideration for Exclusion from the Consumer Product Safety Improvement Act (CPSIA), Gradient Corporation (January 26, 2009).

The petitioners also asserted that steel, aluminum, and copper alloys containing lead are necessary for the functional purpose of the equipment and replacement-part components. For support, they point to the European Union's End-of-Life Vehicles (ELV) Directive exemptions for lead in steel, aluminum and copper alloys ([Ouml]ko-Institut e.V., Final Report: Adaptation to Scientific and Technical Progress of Annex II, Directive 2000/53/EC, Sec. Sec. 4.2, 4.4, and 4.5, (Jan. 16, 2008)), and the Restriction of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS) Directive (EU Directive 2002/95/EC, January 27, 2003), which are based on the contribution of lead to the machinability, strength and corrosion resistance, and the availability (or lack thereof) of substitute materials that do not contain lead.

The Commission denied the petitioners' request for exclusion under section 101(b)(1) of the CPSIA. However, for the reasons discussed below, the Commission has decided to issue a temporary stay of enforcement.

II. Discussion

The petitioners provided data suggesting that the components in children's bicycles and related products contain lead in amounts not greater than those permitted under the RoHS and ELV Directives. As noted earlier in Part I of this document, the petition was filed before the Commission issued its final rule on procedures and requirements, and therefore, before the petitioners knew how the Commission would interpret the language in section 101(b)(1) of the CPSIA. Thus, they presented information that the lead exposure from their components would neither result in any measurable increase in blood lead level (a conclusion that the Commission has since determined is not dispositive of the absorption analysis in section 101(b)(1), although certainly important to scientists considering the risk of lead exposure), nor have any adverse impact on public health and safety. The exposure study was not based on actual measurements or analysis of the component parts of children's bicycles and related products and the materials may or may not be sufficiently similar to the bicycle component parts to serve as a reasonable basis for the evaluation. Children riding these bicycles and related products will touch the brake levers, and may also touch the tire valve stem and with other component parts. The petitioners' study did conclude that some lead would be ingested by a child who touched component parts containing lead in the amount the report determined to be comparable to a child handling a bicycle's brake levers and valve stems. The Commission staff has looked at this modeling data and has stated that if ingestion of lead occurs, some portion of the ingested lead will be absorbed into the body, however small the absorbed amount. Because the petitioners' study indicated that children's use of a bicycle or related products could result in intake of lead,and therefore absorption, the petition did not meet the statutory requirement for exclusion set out in section 101(b)(1)(A) of the CPSIA.

The petitioners also analogized their situation to the technological feasibility criterion in the electronics device exclusion for their reliance on the ELV and RoHS exemptions for certain metal alloys and components. However, no such criterion is specified in section 101(b). The ELV and the RoHS Directives are focused on reducing hazardous waste in landfills and encouraging recycling of these hazardous waste products and thus have quite different purposes than the lead provisions of the CPSIA, which focus on protecting children from exposure to lead through contact with it in children's products. Nevertheless, the Commission recognizes that, unless it takes some action with regard to the information provided by the petitioners, the riders of these bicycles--children 12 and younger--could likely face a more serious and immediate risk of injury or death. Therefore, the Commission is today announcing a time-limited stay of enforcement with regard to certain components of children's bicycles and related products.

The petitioners allege, and the Commission believes it could bear out, that if any period of time passes in which youth bicycles are not available for sale, some parents would allow their children to ride adult bicycles. The Commission recognizes that correctly sizing the bicycle to the rider is an important safety consideration and includes this recommendation in its bicycle safety messages. Children who cannot comfortably reach the pedals or who have to use the more complicated braking and gear shift mechanisms found on adult bicycles are at greater risk of injury than children riding properly sized and equipped bicycles. In a comprehensive study of bicycle riding done by the Commission staff in the early 1990s, several reasons were cited for the higher rates of injury among child riders. The primary reasons were cognitive and physical immaturity. The study also found that one of the factors in children's injuries was “riding the wrong size bicycle.”

This safety dilemma applies equally to bicycles that have already been made and are in inventory with dealers or have already been sold and are in the hands of resellers or consumers. If parents with children aged 12 and younger are unable to buy youth-sized bicycles (whether new or used) they may very well choose to allow their children to ride adult bicycles. Bicycles need periodic maintenance and repair. An inability to obtain certain replacement parts could lead to these bicycles becoming inoperable, or being ridden with worn parts. If no substitute parts are available, this would similarly lead to some parents consenting to their children riding adult bicycles before they are physically and mentally capable of safely operating them. While it might be possible to change out some of the non-complying components on existing bicycles, for many of the components that is simply not an option. Thus replacement parts that have the same amount of lead content (or less) as the original part are included in our enforcement stay.

The petitioners allege that a certain amount of lead is needed in some component parts of their vehicles for machinability, strength, corrosion resistance and functionality. The petitioners point to the ELV Directive for their support of this contention. However, the ELV Directive's exemption for steel for machining purposes containing up to 0.35% lead by weight seems to rest more on the easier machining properties of leaded steel than on safety considerations. The ELV report deals with leaded steels versus unleaded steels, rather than an analysis of how much lead is actually needed for any particular application. Galvanized steel does, according to the report, have advantages in corrosion resistance, which could have safety implications. The exemption for aluminum for machining purposes with a lead content up to 0.4% by weight was granted due to its higher resistance to corrosion and to the extent it is used in brake systems and perhaps certain other applications, such an exemption would appear to be safety related. The granting of the exemption for copper alloy containing up to 4% lead by weight, like steel for machining purposes, appears to be chiefly because the lead makes the copper more easily machinable. The ELV report noted that the presence of lead did not significantly affect the strength or corrosion resistance of the copper alloy. The petitioners do state that the enhanced machinability of copper alloys “permits the creation of deep grooves in threaded parts such as valve stems that are needed to ensure secure cap and air valve fitment for safety reasons.” See Petition for Temporary Final Rule to Exclude a Class of Materials Under Section 101(b) of the Consumer product Safety Improvement Act, dated January 28, 2009, at 11. For the last ELV review, the copper industry was asked to indicate the applications in which the unavoidable use of lead had safety implications, but their response had not been received at the time the report was written. Thus the report's conclusion on copper alloys was that they were not able to carry out an in-depth evaluation based on the information that was made available to them and that the exemption should continue until a full assessment is carried out.

Another argument advanced by the petitioners and also supported by the ELV report is that, for certain alloys, no acceptable substitutes exist or if they exist, they do not exist in sufficient quantities to satisfy the global requirements. In addition, at a public meeting with the BPSA held on March 11, 2009, petitioners claimed that new bicycles “still need to rely on recycled materials for frame, brake levers, associated components, etc.” and that, “recycling that material allows for an uncontrollable potential for trace amounts of lead greater than the CPSIA limits, especially as the limits step down to 300 parts per million.” See Statement of John Nedeau, President, BPSA, at the March 11, 2009, Public Meeting on Bicycles. The meeting is available for viewing at

The Commission staff had very little time to assess these issues independently. Therefore, the ELV report's analysis, which was strictly limited to the technological feasibility of a substitute for lead and not on the higher cost of a viable substitute, is instructive. The ELV report found, for example, that there was as yet no technologically feasible way to remove lead from aluminum. To the extent that these alloys are required for safety reasons related to functionality, greater durability, or corrosion resistance, removing the lead from those alloys could result in a bicycle that is more prone to structural breakage, premature brake failure, or other defects that could present a risk of injury that should be evaluated to ensure such substitutions do not result in unintended or unforeseen defects. For example, failure of a less durable brake lever may result in an inability to stop or control a bicycle and could result in an injury to the child operating the bicycle. In contrast, Congress has eliminated the risk analysis associated with the absorption of lead. Yet, while we acknowledge that there are adverse health effects associated with lead poisoning or elevated blood lead levels, we also must acknowledge that, there may be a greater risk of injury to children if the removal of lead from these components results in structural weakness or other defects, such as brake or frame failure, which can cause the rider to lose control of the bicycle and/or crash which are more significant than any risks associated with the possible absorption of lead. To the extent jogger strollers and bicycle trailers designed or intended primarily for children 12 years of age or younger contain components made with the same metal alloys needed for durability and corrosion resistance, the failure of these components would present similar risks of injury to the children riding in them as would a component failure in a bicycle. In such circumstances, enforcement discretion is the only means for the Commission to protect children.

The petitioners did not address what level of lead is necessary for their various components to meet acceptable functionality, durability and corrosion criteria. The industry, at the March 11, 2009 public meeting indicated that in terms of the uncontrollable variability of the lead content in the metal alloys they buy, “the ongoing challenge is the variability in the recycled materials and the upcoming 300 ppm standard” in August of this year. “We're concerned that even though we specify this and even though we check for it, inevitably some of it may get through.” Comments of Bob Burns and John Nedeau, March 11, 2009, Public Meeting on Bicycles.

The petitioners appeared to be in various stages of attempting to comply with the lead limits. They stated at the March 11, 2009 public meeting that they have been working diligently to remove, substitute or make essential lead-containing components inaccessible. Comments of John Nedeau, March 11, 2009, Public Meeting on Bicycles. For example, they discussed changes in the design of the tire valve by extending the rubber on the stem further up towards the brass valve and placing the cap on the stem securely. Bob Burns stated that such changes would result in the stem/cap combination passing the use and abuse torque test. In addition, they have been working on the exterior portion of the brass valve to contain less than 300 ppm lead. However, issues still remained with the accessible inner portion on the valve, or the valve core, the machinability of which is critical for air retention. Despite industry attempts, they have not yet been able to source a valve core that is below the 600 or 300 parts per million standard. Comments of Bob Burns, March 11, 2009, Public Meeting on Bicycles. The industry also stated that bicycles are different from ATVs and that there is a high-end industry and a low-end industry. According to Bob Burns, lower-priced, heavier bicycles are more likely to have recycled or less refined materials and it may not be possible to use virgin alloys. Although he indicated that higher end bicycle manufacturers may be able to source compliant metals, he questioned whether sourcing compliant metals would be competitively feasible in the lower price markets. Id.

In carrying out its responsibilities to protect the public, the Commission must consider the more immediate safety issue that needs to be addressed and that is presented by requiring the immediate change in construction materials for bicycles that would be needed to comply with the CPSIA. The Commission currently lacks the information it needs to make a thorough assessment of this industry's state of compliance with the lead limits. The industry needs more time to gather this information, taking into account their on-going work in this area, and the Commission needs time to review that information. To afford the manufacturers an appropriate amount of time to continue the testing they are already doing and to conduct any research and development necessary to bring component parts into compliance with the CPSIA and to identify any parts that are either technologically infeasible to bring into compliance during the stay period or identify those where such compliance, while technologically feasible, would expose children to other and greater safety risks, the stay will remain in effect until July 1, 2011. The stay of enforcement here is issued with the expectation that manufacturers will not simply rely on the continued stay of enforcement for a particular metal alloy, but will explore other ways in which to comply with the lead limits before the stay expires on July 1, 2011.

III. The Stay

The United States Consumer Product Safety Commission hereby stays enforcement of section 101(a) of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) and related provisions with respect to certain parts of bicycles, jogger strollers, and bicycle trailers designed or intended primarily for children 12 years of age or younger, until July 1, 2011, upon the following conditions:

A. The stay shall apply to bicycles, jogger strollers, and bicycle trailers (“Bicycles and Related Products”) that were manufactured before February 10, 2009, and to Bicycles and Related Products made on or after that date through June 30, 2011. The stay with regard to Bicycles and Related Products made during this time period shall remain in effect for the life of those products.

B. The stay shall apply only to the following types of original equipment parts for Bicycles and Related Products: Components made with metal alloys, including steel containing up to 0.35 percent lead, aluminum with up to 0.4 percent lead, and copper with up to 4.0 percent lead.

C. The stay shall also apply to any metal part sold separately as a replacement for one of the parts described above, provided that the lead content in the replacement part is less than or equal to the lead content in the part originally installed on the Bicycles and Related Products.

D. Each manufacturer (which can include a distributor where appropriate) who is covered by the stay shall file with the Secretary of the Commission, not later than 60 days after the publication of this stay in the Federal Register, a report identifying each model of Bicycle or Related Product it has produced between May 1, 2008 and May 1, 2009. For each such model, the manufacturer shall give the production volume by calendar month and shall list each component part that is made of metal and that is accessible to children, the material specification for each part, and a measurement of the lead content of representative samples of each part in parts per million(ppm). The lead content measurement may be by x-ray fluorescence or the method posted on the Commission web site to test for lead in metal for certification purposes.

E. No later than December 31, 2009, each manufacturer covered by the stay shall present a comprehensive plan to the Commission describing how and when it intends to reduce the lead exposure from each part described in paragraph D above whose measured lead content exceeds 300 parts per million. The manufacturer should include a discussion of any adverse safety impacts that could result from accelerating the estimated schedule. If some Bicycles or Related Products have been modified after January 28, 2009, to reduce the lead content of certain parts or to make certain parts inaccessible, the manufacturer should outline those changes in general terms and the dates such changes were made.

F. Manufacturers who have timely submitted both the report in paragraph D and the plan in paragraph E above, who need additional time to complete their plan prior to the expiration of the stay may seek an extension of the stay. They shall, no later than December 31, 2010, file a request with the Secretary of the Commission for an extension containing a revised timetable for the reduction of lead exposure from those parts. The report shall detail the manufacturer's progress in reducing children's exposure to lead from each part containing more than 300 ppm, specifying what actions have been taken with regard to each affected part. The report will also explain why any parts that remain above 300 ppm have not been able to be made inaccessible, substituted with another material, or made with a complying level of lead.

G. Any report submitted under paragraph F shall also identify the Bicycles and Related Products by model that the manufacturer intends to produce on or after July 1, 2011. The manufacturer shall provide a listing of each component part that is expected to be used in the production if its lead content is expected to exceed 100 ppm and will be accessible to children. For each such part the manufacturer shall explain why it is not feasible to make the part inaccessible or why it is not technologically feasible to reduce the lead content to 100 ppm or lower.

H. While the stay is in effect for particular Bicycles and Related Products, the Office of Compliance shall not prosecute any person for any violation of laws administered by the Commission based on the lead content of any part of, or replacement part for, those Bicycles and Related Products to which the stay applies, including provisions relating to certification of compliance, reporting of noncompliances, or the sale, offering for sale, importation, or exportation.

I. While the stay is in effect for particular Bicycles and Related Products, the Commission will not refuse admission into the United States of such Bicycles and Related Products based on the lead content of any part of such Bicycles and Related Products to which the stay applies or any replacement part for such Bicycles and Related Products as described in paragraph C.

J. This stay does not apply to Bicycles and Related Products that are stockpiled by the manufacturer, as that term is defined by 15 U.S.C. 2058(g)(2), and stockpiling is strictly prohibited.

K. The Commission hereby delegates to the Assistant Executive Director, Office of Compliance and Field Operations, authority to implement the stay of enforcement as specified here and the authority to modify provisions in individual cases where necessary due to unique or unforeseen circumstances.

The stay in no way limits the Commission's ability to take action with regard to Bicycles and Related Products for other safety-related issues including, but not limited to, failure to comply with the ban on lead-containing paint.

Dated: June 25, 2009. Todd A. Stevenson, Secretary, Consumer Product Safety Commission. [FR Doc. E9-15449 Filed 6-29-09; 8:45 am]

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CPSC rules on BPSA petition for exclusion from CPSIA lead requirements

2009-05-19T09:57:00.000-07:00

The CPSC ruled on the BPSA petition on May 6, 2009. As you can see below the CPSC grappled with the essential problem at hand. It may be next to impossible to eliminate ALL lead from bicycles but in reality the amount of lead allegedly "absorbed" by children is so small it is less than they are getting in day to day life. The CPSC also once again criticises congress for not giving the CPSC any flexibility or latitude to determine what will harm children (in terms of lead content, exposure or likely absorption) and what will not. As a result the petition had to be denied under current law. Next we expect a stay of enforcement similar to what the motorcycle industry received. However there will likely be a number of conditions attached to the stay. We also need to watch for challenges to these stays similar to this challenge on CPSC action under CPSIA

Record of Commission Action
Commissioners Voting by Ballot*
Commissioners Voting: Acting Chairman Nancy A. Nord
Commissioner Thomas H. Moore

ITEM:
Request from the Bicycle Product Suppliers Association ("BPSA") for Exclusion from
Lead Content Limits under Section 101 (b)(1) of the Consumer Product Safety
Improvements Act ("CPSIA")
(Briefing package dated May 6, 2009, OS No. 4098)

DECISION:
The Commission voted unanimously (2-0) to accept staff's initial recommendation and deny BPSA's request for exclusion from the lead content limits under Section 101(b)(1) of the CPSIA and direct staff to draft and submit to the Commission for ballot vote a Federal Register notice staying enforcement with regard to the specified lead level as it pertains to certain parts of youth bicycles (including related products such as jogger strollers and bicycle trailers) manufactured before February 10, 2009, and to similar products made on or after that date through April 30, 2011, given the safety concerns raised by the industry's Petition for Exclusion. Acting Chairman Nord issued the attached statement with her vote.

STATEMENT OF ACTING CHAIRMAN NANCY NORD ON THE EXCLUSION REQUEST FROM THE BICYCLE PRODUCTS SUPPLIERS ASSOCIATION May 12,2009

Today the Commission is voting to deny the petition for an exclusion from the lead provisions ofthe Consumer Product Safety Improvements Act, this time with respect to children's bicycles and related products. However, because both commissioners recognize the problems of applying the law to these categories of products, we are directing staff to develop an enforcement stay for approximately two years, until April 30, 2011.

We are compelled to deny the petition because the language of the statute does not give us the flexibility to do otherwise, even though our staff does not believe that lead exposure from using bicycles and related products presents a risk that they would recommend the Commission regulate. The risk assessment methods traditionally used by the Commission in evaluating exposure to lead are no longer available to us under the CPSIA. Nevertheless, we also recognize, as we did when presented with a similar petition filed by the All Terrain Vehicle industry, that safety requires the presence of some lead in the metal used in the product to insure structural integrity. I am also mindful of the staff's findings that the contact children may have with the parts of the products that contain lead is not extensive and would not present a risk as we have traditionally understood the term-that is, would not increase blood lead levels in any measurable way. Presented with the dilemma of inflexibility in the law vs the need for regulatory action that recognizes safety and good sense considerations, we are opting to stay enforcement. This course of action is becoming all too frequent for the CPSC. It is needed to avoid market disruptions and to protect consumers. However, it is not the optimal way to implement a statute.

Memorandum
Date: May 6, 2009
To The Commission
FROM Robert J. Howell, Assistant Executive Director, Of1ice of Hazard Identification and Reduction Kristina M. Hatlelid, Ph.D., M.P.H., Toxicologist, Directorate for Health Sciences

SUBJECT Request for Exclusion from Lead Limits under Section 101(b)(l) of the
Consumer Product Safety Improvement Act from the Bicycle Product Suppliers Association

Introduction

The Consumer Product Safety Improvement Act provides for specific lead limits in children's products. Section 101 (a) of the CPSIA provides that by February 10,2009, products designed or intended primarily for children 12 years of age or younger may not contain more than 600 ppm of lead. After August 14,2009, products designed or intended primarily for children 12 years of age or younger cannot contain more than 300 ppm of lead. On August 14, 2011, the limit will be further reduced to 100 ppm, unless the Commission determines that this lower limit is not technologically feasible. Paint, coatings or electroplating may not be considered a barrier that would make the lead content of a product inaccessible to a child or prevent the absorption of any lead in the human body through normal and reasonably foreseeable use and abuse of the product. Section 101 (b)(1) of the CPSIA provides that the Commission may exclude a specific product or material from the lead limits established for children's products under the CPSIA if the Commission, after notice and a hearing, determines on the basis of the best-available, objective, peer-reviewed, scientific evidence that lead in such product or material will neither: (a) result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing, breaking, or other children's activities, and the aging of the product; nor (b) have any other adverse impact
on public health or safety.

By rule2 , the Commission has established procedures by which interested people may request an exclusion from the lead limits of section 101 of the CPSIA. This rule states that upon receipt of a request for an exclusion, the Office of Hazard Identification and Reduction (EXHR) will assess the request to determine whether, on the basis of its review of the submitted materials, the normal and reasonably foreseeable use and abuse activity by a child (including swallowing, mouthing, breaking, or other children's activities) and the aging of the material or product for which exclusion is sought, will not result in the absorption of any lead into the human body nor have any other adverse impact on health or safety. This memorandum provides the EXHR staff review of materials submitted by the Bicycle Product Suppliers Association in its request for exclusion of certain parts of bicycles and related products.

Product
The Association requests that certain parts of bicycles, jogger strollers, and bicycle trailers that are primarily intended for children aged 12 years and younger be excluded from the lead content limits of the CPSIA, specifically, components made with metal alloys, including steel containing up to 0.35 percent lead, aluminum with up to 0.4 percent lead, and copper with up to four percent lead.

Assessment
The Association included in its request an evaluation prepared by Gradient Corporation. The report presented an estimate of the amount of lead released from the component leading to a potential for contact by a child; estimation of the amount of lead potentially taken up into the body by a child, considering reasonable use and abuse of the component; and an interpretation of the amount potentially taken up into the body, in the context of the statutory language. The authors assessed contact with aluminum brake levers because children may contact that part of a bicycle, and copper (brass) tire valve stems because of the anticipated relatively high lead content of the brass.

The exposure measurement was a hypothetical assessment based on transfer of lead from the product component to the hands and subsequent hand-to-mouth transfers of lead. Because data do not exist specifically regarding children's contact with lead-containing parts of bicycles, the authors used data and information from other studies, including a study of hand contact with metal jewelry and a study of leaching of lead from faucets into a water-based solution. Exposure was estimated assuming specific areas of contact with the components, amounts of transfer of lead from the components to the hands, amounts of transfer of lead from hands to the mouth, and frequency of contact with the bicycle component parts. The calculations resulted in estimated lead intake of 0.015-0.05 micrograms of lead per day, where intake means the amount of lead ingested by a child.

The authors concluded that for most parts of a bicycle, even accessible parts, contact by children is infrequent. They concluded that their assessment was based on conservative assumptions that likely overestimated exposure. They reported that intake of lead from bicycles would be well below background intake from food and water (i. e., for a 6 year old, about 2.2 ~lg/day from food and 0.6 ~g/day from water).

The authors stated that the statute would be reasonably interpreted by the scientific community to mean no measurable impact on blood lead level. Using the U.S. Environmental Protection Agency's Integrated Exposure Uptake Biokinetic Model (EUBK) software, the authors estimated that intake at their estimated levels would not result in changes in blood lead level. Staff Conclusion and Recommendation

The staff notes that the report is not based on actual measurements or analysis of bicycle component parts. The authors relied on data concerning metal jewelry and plumbing fixtures materials that mayor may not be sufficiently similar to bicycle components to serve as a reasonable basis for the evaluation.

Further, some of the data could be inappropriate for the analysis. Section 101 (b)(3) of the CPSIA specifically states that paint, coatings, or electroplating may not be considered to be a barrier that would render lead in the substrate inaccessible to a child, or to prevent absorption of any lead into the human body, through normal and reasonably foreseeable use and abuse of the product [emphasis added]. The staff notes that the requestor's evaluation of lead exposure from bicycle components relied, in part, on data from a wipe study of metal jewelry. Electroplating is commonly used to finish jewelry made with lead-containing base metal. In fact, the authors recognized this in a footnote indicating that the investigator in the jewelry study might not have adequately controlled for cutting or scraping of jewelry pieces, which the authors claim would bias the results towards larger amounts of transferred lead to hands. Under section 101 (b)(I )(A) of the CPSIA, the law also requires that aging of the product be considered in an evaluation, as well as normal and reasonably foreseeable use and abuse. Because the law does not allow electroplating to serve to prevent absorption of lead into the body, and because both aging and use may remove any benefit that electroplating might offer, the requestor's evaluation, relying in part on sampling of electroplated jewelry could underestimate the possible transfer of lead from the bicycle components to children using the products.

The requestor's supporting report indicated that children's use of bicycles could result in exposure to lead of approximately 0.0 15-0.05 ~g/day, but that there would not be an increase in blood lead level as demonstrated by use of the EUBK model software. The IEUBK3 software has several options for reporting results of the model computations. The "text file display" reports estimated blood lead levels for any given exposure scenario to the tenth of a microgram of lead per deciliter of blood (ug/dL). Thus, the model will indicate a difference between one exposure scenario and another when the change affects the estimate by at least one tenth of a ug/dL (i. e., the first digit after the decimal point.) For example, one could discern the difference between two exposure scenarios that result in estimated blood lead levels of 2.5 ug/dL and 2.6 ug/dL. The software would not discern smaller differences, however; for example, 2.50 ug/dL and 2.54 ug/dL will both be reported in the text file output as 2.5 ug/dL. On the other hand, both the "distribution curve" and the "density curve" outputs of the software report the estimated geometric mean blood lead level to three decimal places. Choosing one of these output options shows that an exposure of an additional 0.05 ~g/day results in an increase, albeit a quite small increase, in the estimated blood lead level. The staff notes that documentation included in the software referring to significant figures in inputs and outputs cautions that the "true precision of a calculation can be strongly influenced by the least precise input value." The staff agrees, but further notes that, physiologically, if ingestion of lead occurs, some portion of the ingested lead will be absorbed into the body, whether or not the absorption results in a significant change in blood lead level as estimated by modeling software.

While the evaluation may be considered a reasonable attempt at assessing children's lead exposure from bicycle component parts, given the lack of specific data, the strength of the conclusions is unclear. While some assumptions might overestimate lead exposure, other assumptions might underestimate exposure. The staff4 agrees with the report's conclusion that contact with lead-containing parts would not be extensive, but the staff also believes that such contact is not inconceivable.

The request also asked that jogger strollers and bicycle trailers be granted an exclusion from the lead limits for the metal alloys, but did not address children's foreseeable use and abuse of such products, or provide an assessment of possible lead exposure. Staff analysis of these products indicates that, as with bicycles, children's use of jogger strollers and bicycle trailers may include contact with metal parts of the products.

The staff agrees that exposure to lead from bicycles and related products would likely be relatively low, i. e., less than other sources of lead exposure, as estimated by the report's authors. The staff is aware that regulatory paradigms for lead in other products exist within other federal regulatory agencies. For example, in 2006, the U.S. Food and Drug Administration (FDA) issued guidance providing a recommended maximum lead level of 0.1 ppm in candy (equivalent to 0.1 ug/g). If~ for example, a child consumed a piece of hard candy weighing 5 grams and containing lead at the recommended maximum level, the total intake of lead would be 0.5 ~lg. Although the requestor's report did not specifically cite the FDA guidance, the report indicated that potential exposure to lead from use of bicycles would be well below intakes from food and water sources.

Prior to enactment of the CPSIA, the staff s assessments of lead-containing children's products, under the Federal Hazardous Substances Act (FHSA), were based on estimates of lead intake and the subsequent effects of the exposure on blood lead level, considering the toxicology of lead and the demonstrated health effects associated with increasing blood lead levels. Regulation of a consumer product as a "hazardous substance" under the FHSA requires assessment of exposure and risk from reasonably foreseeable use and abuse of the product. In this case, given the assessment provided by the requestor, the staff likely would have concluded that the estimated exposure to lead from children's use of bicycles would have little impact on the blood lead level.

Accordingly, based on the staffs assessment, the staff would have recommended that the Commission not consider the product to be a hazardous substance to be regulated under the FHSA.

However, the CPSIA establishes the standard by which the staff evaluates the materials submitted with a request for exclusions. The law states that an exclusion may be granted if lead in such product or material will neither: (a) result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing, breaking, or other children's activities, and the aging of the product; nor (b) have any other adverse impact on public health or safety. Because the requestor's report indicated that children's use of bicycles and related products could result in intake of lead, and therefore absorption, however small the absorbed amount, the staffs initial recommendation to the Commission is to not grant the request to exclude metal alloys used in bicycles and related products on the grounds that the statutory standard has not been met.
~~~~~~~~~~
footnotes

1 In toxicology. absorption refers to the transfer of a chemical into the systemic circulation from the site of exposure. primarily through the skin. respiratory tract and gastrointestinal tract [Giregus Z (200X) Mechanisms of Toxicity In: C. Klaassen. (Ed.) Casarett & Doulls Toxicology. The Basic Science of Poisons. (p. 46) New York: McGraw Hill Medical]. In this memorandum. the terms intake and exposure arc used to refer to the amount of lead a child comes into contact with. as well as the amount taken into the body through ingestion. A portion of ingested lead will be absorbed into the body. depending on factors such as the child's age. fasting and nutritional status. and chemical and physical form of the lead.

2 "Children's Products Containing Lead; Final Rule; Procedures and Requirements for a Commission Determination or exclusion," 74 Federal Register 10475 (11 March 2009), codified at 16 C.F.R. sec.1500.90.

3 US Environmental Protection Agency 2007. Integrated Exposure Uptake Biokinetic (EUBK) Windows 32-Bit Lead Model Version 1.0 Build 264.

4 Memorandum from Celestine T. Kiss to Kristina M. Hallelid, "Human Factors Response to Request by Bicycle Product Suppliers Association for Exclusion from Lead Limits under Section 101 (b)( I ) of the Consumer Product Safety Improvement Act," April, 2009.

5 Guidance for Industry: Lead in Candy Likely To Be Consumed Frequently by Small Children: Recommended Maximum Level and Enforcement Policy, U.S. Department of Health and Human Services, Food and Drug Administration, Center for Food Safety and Applied Nutrition (CFSAN), November 2006 (available at http://www.cfsan.fda.gov/guidance.html).

Memorandum

Date: MAY 6 2009

TO: Kristina M. Hatlelid, Ph.D., M.P.H., Toxicologist, Directorate for Health Sciences

THROUGH: Robert J. Howell Asst Executive Director, Office of Hazard Identification and Reduction Hugh M. McLaurin, Associate Executive Director, Directorate for Engineering Sciences

FROM: Celestine T. Kiss, Engineering Psychologist, Division of Human Factors, Directorate for Engineering Sciences

SUBJECT: Human Factors Response to Request by Bicycle Product Suppliers Association for Exclusion from Lead Limits under Section 101 (b)(1) of the Consumer Product Safety Improvement Act

Introduction

This memorandum provides the Human Factors staff response to the request by the Bicycle Product Suppliers Association in its request for exclusion of certain parts of bicycles and related products.

Product

The Association requests that certain parts of bicycles, jogger strollers, and bicycle trailers that are primarily intended for children aged 12 years and younger be excluded from the lead content limits of the CPSIA, specifically, components made with metal alloys, including steel containing up to 0.35 percent lead, aluminum with up to 0.4 percent lead, and copper with up to four percent lead. Such alloys are used in various components, including, but not limited to tire valve stems, spoke nipples, brake levers, and brake lever bushings.

Assessment

Section 101(b)(1) of the CPSIA provides that the Commission may exclude a specific product or material from the lead limits established for children's products under the CPSIA if the Commission, after notice and a hearing, determines on the basis of the best-available, objective, peer-reviewed, scientific evidence that lead in such product or material will neither: (a) result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing, breaking, or other children's activities, and the aging of the product; nor (b) have any other adverse impact on public health or safety.

Human Factors staff looked at the reasonably foreseeable use and abuse of metal parts on bicycles, jogger strollers, and bicycle trailers specifically mentioned in the request for exclusion to assess the likely interaction of the youth user and the parts.

Bicycles

According to the AGE DETERMINATION GUIDELINES: Relating Children's Ages to Toy Characteristics and Play Behavior (2002)1, around 3 years of age, children develop the ability to pedal, and have the coordination required to use a steering wheel or handlebars. While they have not developed the balance required to operate two-wheeled scooters and bicycles, they can use four-wheeled vehicles (such as a bicycle with training wheels). Most children by the age of 5 years have the balance and coordination to use two-wheeled scooters and bicycles without training wheels. Six-year-olds have developed the coordination to use hand brakes.

Children 3 and 4 years of age are still engaging in some hand-to-mouth behavior and so it can be expected that some of these children will bring their hands to their mouths after touching the metal parts of the handle bar and frame on their bicycle. While children 5 years and older do not typically engage in hand-to-mouth behavior, it is not unreasonable to assume they may wipe their mouth or face with their hands while using or right after using their bicycle.

By 9 years of age, children are more independent and can take care of some of the maintenance required for operating a bicycle. Therefore, it is likely that they may attach a pump to the tire valve stem to inflate a tire. However, specifically touching the tire valve stem fittings and connectors made with copper (and brass) alloy is not really necessary and could occur on a more incidental basis while inflating the tire. However, when releasing tire air pressure, contact may be made with the fittings and connectors, if using the thumb and index finger to depress the tire valve stem. In addition, most bicycles come with caps that cover the top of the tire valve stem. Whether the cap is "child proof' or not, it must be removed to inflate the tire. During the process of removing and replacing the cap, there may be some incidental contact with the top of the valve stem. Typically consumers replace the cap to protect the valve stem, but, if the cap is discarded or lost there is more opportunity for contact.

Human Factors staff is not aware of any scientific data that measured how many times a child using a bicycle will contact the various metal parts of the vehicle, but, it is reasonable to assume that they will come in contact with various parts during the normal riding experience.

Bicycle Trailers

Bicycle trailers are generally intended to be used attached to an adult bicycle and to carry one or two children. Due to the wide variety of styles of trailers available, it is difficult to predict exactly what children who are riding inside will be able or likely to touch or not touch. Some models have exposed metal bars inside the trailer and other models have cloth coverings. Typically, bicycler trailers can hold up to 100 or more pounds, which means they are not intended strictly for infants and toddlers. Taking this into account, it would be reasonable to assume that older children (3 to 5 years) would be able to get in and out of the trailer themselves. If that is the case, it is also reasonable to assume that they will grab the side frame (i.e., metal frame bar) to help support them while getting in and out.

Jogger Strollers Like bicycle trailers, jogger strollers are generally intended to carry one or two children. In addition, the wide variety of styles available makes it difficult to predict exactly what children who are riding inside will be able or likely to touch or not touch. Jogger strollers can also hold up to 100 or more pounds, which means they are not intended strictly for infants and toddlers. Taking this into account, it would be reasonable to assume that older children (3 to 5 years) would be able to get in and out of the stroller themselves. If that is the case, it is also reasonable to assume that they will grab the side frame (i.e., metal frame bar) to help support them while getting in and out. An additional issue with jogger strollers is that as soon as children start walking it is not unusual to see them pushing their own stroller. While they will not be using the brake lever, it is reasonable to assume they will be touching the frame. Because these children run the full spectrum of mouthing behavior, it is also likely they will have hand-to-mouth contact and even direct mouthing contact with accessible parts of the jogger stroller.

Staff Conclusion

It is Human Factors staff opinion that during normal bicycle use children 3 years and older will interact with the metal frame and handle bars of their bicycles. Children 6 years and older will interact with the brake lever. On a less frequent basis it is also likely older children (9 years and older) will interact with the tire valve stem. Therefore, during reasonable foreseeable use and abuse, they may have incidental contact with the valve stem fittings and connectors made with copper (and brass) alloys while inflating the tire. If they have to deflate the tire, they will have direct contact the tire valve stem fittings and connectors.

Bicycle trailers have a wide variety of designs and therefore, it is difficult to predict what children will be able to touch or not touch in the course of riding inside the trailer. Jogger strollers are similar to bicycle trailers but have the added exposure to the metal handle bar because as children learn to walk they can be expected on occasion to also attempt to push the stroller.

footnotes

Smith, Y.S. (Ed.). (2002). AGE DETERMINATION GUIDELINES: Relating Children's Ages to Toy Characteristics and Play Behavior, U.S. Consumer Product Safety Commission, Bethesda, MD.

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Notice of Stay of Enforcement Pertaining to Youth Motorized Recreational Vehicles

2009-05-06T14:43:00.000-07:00

The CPSC has granted a stay of enforcement of the lead content requirements in the CPSIA with respect to certain parts of motorized recreational vehicles designed or intended primarily for children 12 years or age or younger, namely youth all terrain vehicles, youth off-road motorcycles and youth snowmobiles, until May 1, 2011 However the stay is conditioned on 11 conditions. The first deadline for compliance to qualify under the stay is 60 days from the publication of the stay (May 4, 2009). By that time all distributors and or manufacturers of the affected parts have to file a report identifying all the problem areas on the products they sell. Then by November 1, 2009 provide a plan to fix the lead issue. An extension of the stay must be requested before December 1, 2010. These reports and numerous other requirements detailed below are quite onerous and came about due to the nature of the relief requested and arguments made by the industry. Not much has been mentioned about these deadlines or requirements in conditions A-K in the stay (at the end of the stay below). Failure to comply with these provisions means your company will not be able to take advantage of this stay.

There are a number of other issues with this ruling. We suspect that a similar stay my be granted for the bicycle industry. We also think that the more stays that come out of the CPSC the less likely Congress will Act to fix the law as it will reduce the urgency and Congress will move on the something else. Pressure is the only way things get done in Congress. Also we have new CPSC commissioners and a chairperson coming in midstream so everything could change in the next few months in terms of the CPSC's direction. The other big question is whether these stays will get challenged in court just like the CPSC's guessing at Congressional intent with the phthalate retroactivity provisions. The issue here might be whether the CPSC has any right to stay enforcement.

This stay and its conditions are yet more government intrusion into how products are made. Sure substitutes for lead (brass) can be found but at higher cost and in some cases substitutes which are not as good. And we all know how consumers like high costs. The other problem is that the changes that will be needed in products intended for children 12 and under will likely need to be implemented throughout the product line to reduce costs. The crux of the problem remains: if there is a brass part containing lead how much lead could get into a child by touching it and assuming the lead was absorbed, would it be in an amount greater than what the child would get from other sources. I think this is where the science runs into problems. The Stay also hinted at the other problem with just focusing all its efforts on lead content and failing to enforce other laws. The number of children killed by lead exposure in ATV's is zero, vs kids killed through improper use or lack of parental supervision. Once gain we are losing sight of the big picture and the ultimate goal; doing what is most likely to save the most lives.

Quite frankly the conditions set up by the CPSC to qualify for this stay are almost as onerous as the law itself. This stay is no gift to the industry. There is much work to be done. And quickly.

read the statement of the two commissioners voting on this stay here

AGENCY: Consumer Product Safety Commission.

ACTION: Stay of enforcement.

SUMMARY: This notice announces the decision of the
Consumer Product Safety Commission ("CPSC" or "Commission")
to stay enforcement of section 101 (a) of the Consumer
Product Safety Improvement Act of 2008 (CPSIA), Public Law
110-314 with regard to certain parts and youth motorized
vehicles that contain those parts. Specifically, the
Commission is staying enforcement of the specified lead
level as it pertains to certain parts of youth all terrain
vehicles, youth off-road motorcycles and youth snowmobiles
("Youth Motorized Recreational Vehicles" or "Vehicles"),
specifically battery terminals containing up to 100 percent
lead, and components made with metal alloys, including
steel containing up to 0.35 percent lead, aluminum with up
to 0.4 percent lead, and copper with up to 4.0 percent
lead, and the vehicles that contain them.
This stay will remain in effect until May 1, 2011,
unless prior to that time the Commission, based upon
evidence submitted to it, decides to continue the stay for
an additional period of time with regard to all or some of
the vehicles.

DATES: This stay of enforcement is effective on May 4, 2009
[date of publication in the FEDERAL REGISTER.]

FOR FURTHER INFORMATION CONTACT: John "Gib" Mullan,
Assistant Executive Director for Compliance and Field
Operations, U.S. Consumer Product Safety Commission, 4330
East West Highway, Bethesda, Maryland 20814; e-mail
jmullan@cpsc.gov.

SUPPLEMENTARY INFORMATION

I. Background
On August 14, 2008, Congress enacted the Consumer
Product Safety Improvement Act of 2008 (CPSIA), Public Law
110-314, 122 Stat. 3016. Section 101(a) of the CPSIA
phases in declining limits on allowable lead content in
children's products (defined as a consumer product designed
or intended primarily for children 12 years of age or
younger), starting on February 10, 2009 with 600 ppm and
decreasing to 300 ppm on August 14, 2009. On August 15,
2011, the lead limit will be 100 ppm unless the Commission
determines that a limit of 100 ppm is not technologically
feasible for a product or a product category. The law does
contain certain exclusions from the lead limits. One is
for component parts that contain more than the allowable
lead content but where the component is not accessible to a
child through normal and reasonably foreseeable use and
abuse. The Commission can also determine, for certain
electronic devices, that it is not technologically feasible
for them to comply immediately with the lead limits and
shall establish a schedule by which such devices shall be
in full compliance unless the Commission determines that
full compliance will not be technologically feasible for
such devices within a schedule set by the Commission. The
Commission may also, under section 101 (b) (1) exclude a
specific product or material that exceeds the lead limits
if the Commission determines on the basis of the best
available, objective, peer-reviewed, scientific evidence
that lead in such product or material will neither: (1)
result in the absorption of any lead into the human body,
taking into account normal and reasonably foreseeable use
and abuse of such product by a child, including swallowing,
mouthing, breaking, or other children's activities, and the
aging of the product; nor (2) have any other adverse impact
on public health or safety.

On March 11, 2009, the Commission issued a final rule
on procedures and requirements for seeking, inter alia, an
exclusion under section 101 (b) (1) of the CPSIA for
materials and products that exceed the lead content limits.
74 FR 10475. The final rule set forth: (1) that a request
for exclusion must be accompanied by evidence that will
meet the statutory test for the exclusion outlined above;
and (2) that the EXHR staff would evaluate the evidence and
provide a scientific recommendation to the Commission as to
whether the party submitting the request had met this
statutory test.

The Specialty Vehicle Institute of America (SVIA),
Polaris Industries, Inc., American Suzuki Motor
Corporation, Arctic Cat Inc., Bombardier Recreational
Products Inc., Kawasaki Motors Corp., USA, American Honda
Motor Co., Inc., Yamaha Motor Corporation, USA, and the
Motorcycle Industry Council filed a petition to exclude a
class of materials under section 101(b) (1) of the CPSIA.
The petition was submitted prior to March 11, 2009, the
date of the issuance of the final rule on procedures or
requirements for seeking an exclusion under section
101(b) (1) of the CPSIA. The Commission has decided to
treat this petition as a request for exclusion under these
procedures. The petitioners sought exclusion for certain
parts of their youth motorized recreational vehicles
including battery terminals containing up to 100 percent
lead, and components made with metal alloys, including
steel containing up to 0.35 percent lead, aluminum with up
to 0.4 percent lead, and copper with up to 4 percent lead.
Specified components include: tire valve sterns, fittings
and connectors made with copper (and brass) alloys; brake
and clutch levers and other brake components, throttle
controls, engine housings, and carburetors made with
aluminum alloys; and fasteners, frames and structural or
engine components made with steel alloys.
The petitioners submitted an exposure study,
extrapolated from the "best-available existing data" based
on an analysis of the lead in metal jewelry (for an
aluminum and a brass alloy) and a faucet (for a brass
alloy). This study concluded "estimated lead intakes from
motorized recreational vehicle components are well below
background intakes of lead from food and water, and ... such
intake will not result in a measurable impact on blood lead
levels in children.... "

The petitioners also asserted that steel, aluminum,
and copper alloys containing lead are necessary for the
functional purpose of the equipment and replacement-part
components, including, but not limited to, lead batteries,
fittings and connectors, engine housing, chassis parts,
frames, drive lines, spoke nipples, tire valve sterns,
cables and hoses, brake levers and other brake system
component clutch levers, and throttle controls. For
support, they point to the European Union's End-of-Life
Vehicles (ELV) Directive exemptions for lead in steel,
aluminum and copper alloys and lead batteries (January
2008) and the Restriction of Certain Hazardous Substances
in Electrical and Electronic Equipment (RoHS) Directive (EU
Directive 2002/9S/EC, January 27, 2003), which are based on
the contribution of lead to the machinability, strength and
corrosion resistance, and the availability (or lack
thereof) of substitute materials that do not contain lead.
The Commission denied the petitioners' request for
exclusion under section 101(b) (1) of the CPSIA. However,
for the reasons discussed below, the Commission has decided
to issue a temporary stay of enforcement.

II. DISCUSSION

The petitioners provided no data on the lead content of the actual components in the vehicles for which they are seeking exclusion (other than that some battery terminals
could be up to 100 percent lead). There was no attempt to
differentiate among the types of vehicles or the various
manufacturers in the petition, which makes it impossible
for the Commission to know the actual state of affairs with
regard to these vehicles. The petition was filed before the Commission issued its final rule on procedures and requirements, and therefore, before the petitioners knew
how the Commission would interpret the language in section
101(b) (1). Thus they presented information that the lead
exposure from their components would neither result in any
measurable increase in blood lead level (a conclusion that the Commission has since determined is not dispositive of the absorption analysis in section 101(b) (1), although certainly important to scientists considering the risk of lead exposure), nor have any adverse impact on public
health and safety. As noted above, the exposure study was
not based on actual measurements or analysis of youth
motorized recreational vehicle component parts and the
materials mayor may not be sufficiently similar to serve
as a reasonable basis for the evaluation. Children riding
these vehicles will interact with the metal brake and
clutch levers and the throttle controls and may also
interact with the tire valve stem and with certain of the
other component parts. The study submitted by the
petitioners did conclude that some lead would be ingested
by a child who touched component parts containing lead in
the amount the report determined to be comparable to a
child handling the brake levers and the valve stem of a
vehicle. The Commission has determined that some portion
of ingested lead will be absorbed into the body, however
small the absorbed amount. Because the petitioners' study
indicated that children's use of youth motorized
recreational vehicles could result in intake of lead, and
therefore absorption, the petition does not meet the
statutory requirement for exclusion set out in section
101 (b) (1) (A) .

Petitioners also analogize their situation to the
technological feasibility criterion in the electronics
device exclusion for their reliance on the ELV and RoHS
exemptions for batteries and certain metal alloys.
However, no such criterion is specified in section 101(b)
The ELV and the RoHS Directives are focused on reducing
hazardous waste in landfills and encouraging recycling of
these hazardous waste products and thus have quite
different purposes than the lead provisions of the CPSIA,
which focus on protecting children from unnecessary
exposure to lead through contact with it in children's
products. Nevertheless, the Commission recognizes that
unless it takes some action with regard to the information
provided by the petitioners, the riders of these vehicles-children
12 and younger--would likely face a more serious
and immediate risk of injury or death. For the reasons
discussed in more detail below, the Commission is today
announcing a time-limited stay of enforcement with regard
to certain parts and the vehicles that contain these parts.
The petitioners allege, and the Commission believes it
could bear out that if any period of time passes in which
youth motorized recreational vehicles are not available for
sale (or existing ones are not able to be serviced) that
some parents would allow their children to instead ride
adult models or over-sized and over-powered versions of the
youth models. Our work on .ATVs has shown that the vast
majority of the deaths of children from driving ATVs occur
on adult-sized models. Part of the Commission's work in
its on-going ATV rulemaking is to encourage the development
of accurately sized and powered vehicles for children so
they will not ride an adult model. Some manufacturers have
told the Commission that they have instructed their dealers
to remove youth motorized recreational vehicles from their
showrooms and to not sell them. The Commission has
received reports of dealers refusing to do routine
maintenance on previously sold youth vehicles. Finally,
one manufacturer has written to the Commission informing it
that they are relabeling their Y-6+ and their Y-10+ youth
vehicles to Y-12+ and they are advising their dealers they
can remove the speed limiting devices from these vehicles.
Due to the long lead time in designing and
manufacturing these motor vehicles, it would likely be
model year 2011 or 2012 before a complying youth ATV could
be on the market (ignoring for a moment the other issues
concerning the feasibility of making a completely complying
vehicle) . This safety dilemma applies equally to vehicles
that have already been made and are in inventory with
dealers or have already been sold and are in the hands of
resellers or consumers. If parents of youth riders are
unable to buy youth-sized vehicles (whether new or used)
they may very well choose to allow their children to ride
adult or over-powered, wrongly-sized versions of youth
ATVs. Because used ATVs need periodic maintenance and
repair, an inability to obtain certain replacement parts
could lead to these vehicles becoming inoperable. If no
youth-sized substitutes are available, this would similarly
lead to parents consenting to their children crossing over
to adult-sized machines before they are physically and
mentally capable of safely operating them. While it might
be possible to change out some of the non-complying
components on existing vehicles, for many of the components
that is simply not an option. Thus replacement parts that
have the same amount of lead content (or less) as the
original part are included in our enforcement stay.
The other safety-related allegation made by the
petitioners is that a certain amount of lead is needed in
some component parts of their vehicles for "functionality,
durability and other reasons that are safety critical to
the components." See Statement of David Murray, Counsel
for Yamaha, at the March 11, 2009, public meeting on ATVs
and other youth motorized recreational vehicles.
The petitioners again point to the ELV Directive for their
support of this contention. However, the ELV report's
exemption for steel for machining purposes containing up to
0.35% lead by weight seems to rest more on the easier
machining properties of leaded steel than on safety
considerations. The ELV report deals with leaded steels
versus unleaded steels, rather than an analysis of how much
lead is actually needed for any particular application.
Galvanized steel does, according to the report, have
advantages in corrosion resistance, which could have safety
implications. The exemption for aluminum for machining
purposes with a lead content up to 0.4% by weight was
granted due to its higher resistance to corrosion and to
the extent it is used in brake and clutch systems and
perhaps certain other applications, such an exemption would
appear to be safety related.. The granting of the exemption
for copper alloy containing up to 4% lead by weight, like
steel for machining purposes, appears to be chiefly because
the lead makes the copper more easily machinable. The ELV
report noted that the presence of lead did not
significantly affect the strength or corrosion resistance
of the copper alloy. The petitioners do state that the
enhanced machinability of copper alloys "permits the
creation of deep grooves in threaded parts such as valve
stems that are needed to ensure secure cap and air valve
fitment for safety reasons." See Petition for Temporary
Final Rule to Exclude a Class of Materials Under Section
101(b) of the Consumer product Safety Improvement Act,
dated January 27, 2009, at 13. For the last ELV review,
the copper industry was asked to indicate the applications
in which the unavoidable use of lead had safety
implications, but their response had not been received at
the time the report was written. Thus the report's
conclusion on copper alloys was that they were not able to
carry out an in-depth evaluation based on the information
that was made available to them and that the exemption
should continue until a full assessment is carried out.
The exemption for lead in batteries noted that the
substitution of lead in lead-acid batteries is "not
possible" and that avoiding the use of lead would require
an alternative battery system. The report's conclusion was
that lead-free alternatives to lead-acid batteries would
reduce the functionality and reliability of vehicles and
that the use of lead in this function is unavoidable at
this time. It did note, however, that research was being
actively pursued to develop a substitute for lead in this
application.

Another argument advanced by the petitioners and also
supported by the ELV report is that for certain alloys no
acceptable substitutes exist or if they exist, they do not
exist in sufficient quantities to satisfy the global
requirements. The ELV report found, for example, that
there was as yet no technically feasible way to remove lead
from aluminum.

The Commission staff had very little time to assess
these issues independently. Therefore, the ELV report's
analysis, which was strictly limited to the technological
feasibility of a substitute for lead and not on the higher
cost of a viable substitute, is instructive. To the extent
that these alloys are required for safety reasons related
to functionality, greater durability, or corrosion
resistance, removing the lead from those alloys could
result in a vehicle that is more prone to structural
breakage, premature brake failure, or other defects that
could present a risk of death or serious injury. For
example, failure of a less durable brake lever may result
in an inability to stop or control a vehicle and result in
death or serious injury to the child operating the vehicle.
In contrast, Congress has eliminated the risk analysis
associated with the absorption of lead. Yet, while we
acknowledge that there are adverse health effects
associated with lead poisoning or elevated blood lead
levels, we also must acknowledge that, based on our
experience with these vehicles and current available
information, the risk of death or serious injury associated
with broken or defective vehicle parts is both more likely
and more significant than any risks associated with
possible absorption of lead. In such circumstances,
enforcement discretion is the only means for the Commission
to protect riders of youth ATVs.

The petitioners did not address what level of lead is necessary for their various components to meet acceptable functionality, durability and corrosion criteria. The industry, at the March 2009 public meeting indicated that
in terms of the uncontrollable variability of the lead
content in the metal alloys they buy, the 600 ppm limit was
"probably not an issue." It would, however, be a problem
when the lead limit drops to 300 ppm in August of this
year. The statement was also made at that meeting that
they were seeking exclusions for these metal alloys "at or
below" the levels established by the European Union. But
how much below the EU level they can go toward the
statutory limit without compromising safety is something
they do not appear to know at this time. A spokeswoman for
the industry stated at the public meeting that it should
not take several years for the industry to test the metal
alloys, but it will take some time because certain
considerations such as the aging of the materials will have
to be taken into account. She also asserted that all of
the members of their coalition were willing to move to low
lead alloys if they can be shown to be appropriate for
real-world applications under real-world stresses.
The petitioners appear to be in various stages of
attempting to comply with the lead limits. They stated at
the March public meeting that their clients have been
working diligently to remove, substitute or shield from
accessibility, non-complying, lead-containing components in
their vehicles. They appear to have removed lead from the
vinyl components of their vehicles, such as the handlebar
grips and the seats. One of the largest makers of youth
ATVs stated that their battery is in a recessed compartment
and that they could put a cover over it and screw it in
place. Under the Commission's accessibility proposals,
that should qualify to make the engine components
inaccessible and remove the 100 percent lead terminals as a
matter of concern for their vehicles.

Another spokesman at the meeting assured our staff that the industry members
represented there were all exploring the issue of encasing
their batteries. It was also noted that small motorcycles
do not have batteries. A snowmobile manufacturer indicated
at that same meeting that they had sent retrofit kits to
all of their dealers to switch out a substitute "for those
few components" that did not meet the lead limits. They
additionally put a latch on the hood to make the engine
inaccessible to children. They may, therefore, not need
relief for their future production. A spokesman for the
petitioners indicated they thought they could make other
parts, such as the valve stem and some cable systems
inaccessible. Thus even some of the parts that contain
metal alloys that the petitioners were seeking exclusion
for could, with time, be made compliant.

In the interim final rule on electronic devices where
the Commission referenced the exemptions in the RoHs
Directive, the Commission stated that it "expects that
manufacturers will continue to assess the technological
feasibility of making electronic devices that have
accessible component parts which contain lead above the
lead content limits inaccessible, and make such component
parts inaccessible whenever possible." Similarly, the stay
of enforcement is issued with the expectation that
manufacturers will not simply rely on the continued stay of
enforcement for a particular metal alloy, but will explore
other ways in which to comply with the lead limits. A
periodic review is required in RoHS and ELV, a process the
industry appears to embrace. As long as manufacturers are alleging that it is technologically infeasible for certain components to comply with the CPSIA either through being made inaccessible or otherwise, they must be required to periodically justify, with specificity as to the components and alloys from which the components are made, the continued need for enforcement abeyance.
In carrying out its responsibilities to protect the
public, it is the Commission's role to take a broader view
of any product and evaluate a safety versus safety tradeoff
presented by a product's design when one appears. The
Commission currently lacks the information it needs to make
a vehicle by vehicle assessment of this industry's state of
compliance with the lead limits. The industry needs more
time to gather this information, taking into account their
on-going work in this area, and the Commission needs time
to review that information. Even a time-limited stay that
has as its goals moving these vehicles toward compliance in
a fashion that does not drive children to a riskier
alternative and systematically reducing the lead content of
these vehicles to the lowest level possible from a safety
standpoint is not our preferred way to handle these types
of issues. However, given the alternatives available to us
and the information received thus far, we feel that this
procedure is not inconsistent with the overall intent of
the CPSIA, which is to protect consumers, particularly our
children, from serious risk of harm, when the result of
forcing compliance with the provisions within the original
time constraints could result in a more immediate and
potentially more serious hazard than a limited stay of
enforcement.

To afford the manufacturers an appropriate amount of
time to continue the testing they are already doing and to
conduct any research and development necessary to bring
component parts into compliance with the CPSIA and to
identify any parts that are either technologically
infeasible to bring into compliance during the stay period
or identify those where such compliance, while
technologically feasible, would expose children to other
and greater safety risks, the stay will remain in effect
until May 1, 2011.

III. The Stay

The United States Consumer Product Safety Commission
hereby stays enforcement of section 101(a) of the Consumer
Product Safety Improvement Act of 2008 (CPSIA) and related
provisions with respect to certain parts of motorized
recreational vehicles designed or intended primarily for
children 12 years or age or younger, namely youth all terrain
vehicles, youth off-road motorcycles and youth
snowmobiles, until May 1, 2011, upon the following
conditions:

A. The stay shall apply to youth all-terrain vehicles,
youth off-road motorcycles and youth snowmobiles
("Youth Motorized Recreational Vehicles" or
"Vehicles") that were manufactured before February
10, 2009, and to Youth Motorized Recreational
Vehicles made on or after that date through April
30, 2011. The stay with regard to Youth Motorized
Recreational Vehicles made during this time period
shall remain in effect for the life of those
Vehicles.

B. The stay shall apply only to the following types of
original equipment parts for Youth Motorized
Recreational Vehicles: battery terminals containing
up to 100 percent lead, and components made with
metal alloys, including steel containing up to 0.35
percent lead, aluminum with up to 0.4 percent lead,
and copper with up to 4.0 percent lead.

C. The stay shall also apply to any metal part sold
separately as a replacement for one of the parts
described above, provided that the lead content in
the replacement part is less than or equal to the
lead content in the part originally installed on the
Vehicles.

D. Each manufacturer (which can include a distributor
where appropriate) who is covered by the stay shall
file with the Secretary of the Commission, not later
than 60 days after the publication of this stay in
the Federal Register, a report identifying each
model of Youth Motorized Recreational Vehicles it
has produced between March 1, 2008 and March 1,
2009. For each such model, the manufacturer shall
give the production volume by calendar month and
shall list each component part that is made of metal
and that is accessible to children, the material
specification for each part, and a measurement of
the lead content of representative samples of each
part in parts per million (ppm) . The lead content
measurement may be by x-ray fluorescence or the
method posted on the Commission web site to test for
lead in metal for certification purposes.

E. No later than November 1, 2009, each manufacturer
covered by the stay shall present a comprehensive
plan to the Commission describing how and when it
intends to reduce the lead exposure from each part
described in paragraph D above whose measured lead
content exceeds 300 parts per million. The plan
shall set forth the steps the manufacturer intends
to take to limit children's lead exposure in future
production and an estimated schedule for achieving
such reductions. The manufacturer should include a
discussion of any adverse safety impacts that could
result from accelerating the estimated schedule. If
some Vehicles have been modified after January 27,
2009, to reduce the lead content of certain parts or
to make certain parts inaccessible,the manufacturer
should outline those changes in general terms and
the dates such changes were made.

F. Manufacturers who have timely submitted both the
report in paragraph D and the plan in paragraph E
above, who need additional time to complete their
plan prior to the expiration of the stay may seek an
extension of the stay. They shall, no later than
December 1, 2010, file a request with the Secretary
of the Commission for an extension containing all of
the information described in paragraph D above,
including an update of the production volume by
month for each previously listed model and for any
new youth model introduced after the date of the
prior report, lead content measurements taken within
90 days of the report submission for each part to be
subject to the stay extension and a revised
timetable for the reduction of lead exposure from
those parts. The report shall detail the
manufacturer's progress in reducing children's
exposure to lead from each part containing more than
300 ppm, specifying what actions have been taken
with regard to each affected part. The report will
also explain why any parts that remain above 300 ppm
have not able to be made inaccessible, substituted
with another material, or made with a complying
level of lead.

G. Any report submitted under paragraph F shall also
identify the Youth Motorized Recreational Vehicles
by model that the manufacturer intends to produce on
or after May 1, 2011. The manufacturer shall
provide a listing of each component part that is
expected to be used in the production Vehicles if·
its lead content is expected to exceed 100 ppm and
will be accessible to children. For each such part
the manufacturer shall explain why it is not
feasible to make the part inaccessible or why it is
not technologically feasible to reduce the lead
content to 100 ppm or lower.

H. While the stay is in effect for particular Vehicles,
the Office of Compliance shall not prosecute any
person for any violation of laws administered by the
Commission based on the lead content of any part of,
or replacement part for, those Vehicles to which the.
stay applies, including provisions relating to
certification of compliance, reporting of
noncompliances, or the sale, offering for sale,
importation or exportation.

I. While the stay is in effect for particular Vehicles,
the Commission will not refuse admission into the
United States of such Vehicles based on the lead
content of any part of such Vehicles to which the
stay applies or any replacement part for such
Vehicles as described in paragraph C.

J. This stay does not apply to Vehicles that are
stockpiled by the manufacturer. Stockpiling shall
be determined on a model-by-model basis. Vehicles
shall be deemed to be stockpiled if their production
in the six-month period ending on April 30, 2011
exceeds by more than fifteen percent the production
of that model or its predecessor during the sixmonth
period ending on April 30, 2010. The
production of new models must not exceed by more
than fifteen percent the production of similar
models by the same manufacturer.

K. The Commission hereby delegates to the Assistant
Executive Director, Office of Compliance and Field
Operations, authority to implement the stay of
enforcement as specified here and the authority to
modify provisions in individual cases where
necessary due to unique or unforeseen circumstances.
The stay in no way limits the Commission's ability to take
action with regard to Youth Motorized Recreational Vehicles
for other safety-related issues including, but not limited
to, failure to comply with the ban on lead-containing paint
or with the American National Standard for Four Wheel All Terrain
Vehicles Equipment Configuration, and Performance
Requirements developed by the Specialty Vehicle Institute
of America effective on April 13, 2009 and the requirement
to comply in all respects with an action plan on file with
the Commission as set forth in the CPSIA.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
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President Obama nominates Tenenbaum and Adler for CPSC positions

2009-05-05T08:32:00.000-07:00

President Obama has nominated Inez Moore Tenenbaum, a former South Carolina superintendent of education, to serve as chairman of the commission (more background on her here) and Robert Adler, a law professor at the University of North Carolina,(more background on him here) to fill the one empty seat that has been open for over year. For the last 15 years there has one Chairman and two commissioners. Obama is expanding the commission from three members to five, so we are still short two more names at this point as Nord will be resigning as soon as a a new Chairman is confirmed by the US Senate. Nord has been criticized by most in the industry and Congress regarding the implementation of the CPSIA.

President Obama is also increasing the budget of the CPSC by $107 million (a 71% boost in the agency's funding). It is often joked about at the agency that the CPSC yearly budget is less that one day of the defense dept. budget. We should see the details this week as to the entire budget Obama proposed in February.

The CPSC, only has about 430 employees, which is one of the reasons many people feel that it has been hobbled in rolling out the new CPSIA.

Tenenbaum, a lawyer who ran for the US Senate in 2004, served two terms as the elected South Carolina education superintendent. A lawyer, she had practiced health, environmental and public-interest law with the firm Sinkler & Boyd and had been director of research for the Medical, Military, Public and Municipal Affairs Committee of the South Carolina House of Representatives.

Adler is a professor of legal studies at the University of North Carolina law school and law and ethics at the Kenan-Flagler Business School. He has served as the associate dean of the MBA program and as associate dean for the school's undergraduate business administration program. He served as counsel on the Energy and Commerce Committee, with work in consumer safety, under the chairmanship of Rep. Henry Waxman (D-Calif.). Professor Adler joined Barack Obama’s transition team in October 2008. After the presidential election, he was one of two people asked to review the U.S. Consumer Product Safety Commission.

It is interesting to note that both nominees are lawyers. Obama himself of course is a lawyer and former law School professor.

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© Copyright 1996-2008 Conditions of Use

Bills seeking to amend (or ameliorate the harsh effects of) the CPSIA

2009-04-19T16:26:00.000-07:00

There are currently 13 bills and one resolution (as of this posting) winding their way through Congress which attempt to either directly amend the CPSIA and or limit its harsh effects. This can be done by actually "fixing" the problem, most likely giving the CPSC the ability to remove certain products or parts thereof from the lead and or phthalates limits, increasing the minimum limits allowable, by making it easier and quicker for companies to show that the offending part is not a threat to child safety or by a combination of all or some of the foregoing. Some of the bills just delay the inevitable on procedural grounds while other bills attempt to put a band aid over the problem without really fixing the law, which is the root of the problem. It is possible to protect children from lead and phthalates and at the same time create regulations that actually make sense to manufacturers and that are phased in in such a way that they dont create panic. The problem is that it is a very complicated process when looking at all of the thousands of types of consumer products the CPSC regulates. Congress painted with too broad a brush (as usual) and tried to simplify the approach to a "problem" which was not simple and was not widespread (contrary to panicky news reports about lead in toys). But as Congress is not in the business of manufacturing these products they did not understand the complexity, cost and scope of the problem or solving it. The next problem is making sure we don't make the problem worse with yet another bill. So massaging all these bills and getting a good result for all the different industries involved may prove to be quite challenging. I can't wait until they tackle something really complex like say banking regulations or health care.

1. H.R.968 : To amend the Consumer Product Safety Act to provide regulatory relief to small and family-owned businesses.
Sponsor: Rep Shadegg, John B. [AZ-3] (introduced 2/10/2009) Cosponsors (22)
Committees: House Energy and Commerce
Latest Major Action: 2/10/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

2. H.R.1027 : To exempt second-hand sellers of certain products from the lead content and certification requirements of the Consumer Product Safety Improvement Act of 2008.
Sponsor: Rep Posey, Bill [FL-15] (introduced 2/12/2009) Cosponsors (5)
Committees: House Energy and Commerce
Latest Major Action: 2/12/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

3. H.R.1046 : To ensure the effective implementation of children's product safety standards under the Consumer Product Safety Improvement Act of 2008.
Sponsor: Rep Putnam, Adam H. [FL-12] (introduced 2/12/2009) Cosponsors (1)
Committees: House Energy and Commerce
Latest Major Action: 2/12/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

4. H.R.1049 : To prohibit the sale of kitchen ranges or ovens which do not include a design, bracket, or other device which complies with an applicable consensus product safety standard intended to prevent the product from tipping.
Sponsor: Rep Stupak, Bart [MI-1] (introduced 2/12/2009) Cosponsors (None)
Committees: House Energy and Commerce
Latest Major Action: 2/12/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

5. H.R.1465 : To amend the Consumer Product Safety Act to provide regulatory relief to small and family-owned businesses.
Sponsor: Rep Ellsworth, Brad [IN-8] (introduced 3/12/2009) Cosponsors (None)
Committees: House Energy and Commerce
Latest Major Action: 3/12/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

6. H.R.1510 : To amend the lead prohibition provisions of the Consumer Product Safety Improvement Act of 2008 to provide an exemption for certain all-terrain vehicles, and for other purposes.
Sponsor: Rep Rehberg, Denny [MT] (introduced 3/16/2009) Cosponsors (None)
Committees: House Energy and Commerce
Latest Major Action: 3/16/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

7. H.R.1587 : To amend the lead prohibition provisions of the Consumer Product Safety Improvement Act of 2008 to provide an exemption for certain off-highway vehicles, and for other purposes.
Sponsor: Rep Rehberg, Denny [MT] (introduced 3/18/2009) Cosponsors (25)
Committees: House Energy and Commerce
Latest Major Action: 3/18/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

8. H.R.1692 : To amend the Consumer Product Safety Improvement Act to exempt ordinary books from the lead limit in such Act.
Sponsor: Rep Fortenberry, Jeff [NE-1] (introduced 3/24/2009) Cosponsors (1)
Committees: House Energy and Commerce
Latest Major Action: 3/24/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

9. H.R.1796 : To amend the Consumer Product Safety Act to require residential carbon monoxide detectors to meet the applicable ANSI/UL standard by treating that standard as a consumer product safety rule, to encourage States to require the installation of such detectors in homes, and for other purposes.
Sponsor: Rep Matheson, Jim [UT-2] (introduced 3/30/2009) Cosponsors (None)
Committees: House Energy and Commerce
Latest Major Action: 3/30/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

10. H.R.1815 : To clarify the applicability of certain provisions in the Consumer Product Safety Improvement Act, and for other purposes.
Sponsor: Rep Barton, Joe [TX-6] (introduced 3/31/2009) Cosponsors (21)
Committees: House Energy and Commerce
Latest Major Action: 3/31/2009 Referred to House committee. Status: Referred to the House Committee on Energy and Commerce.

11. S.374 : A bill to amend the Consumer Product Safety Act to provide regulatory relief to small and family-owned businesses.
Sponsor: Sen DeMint, Jim [SC] (introduced 2/4/2009) Cosponsors (7)
Committees: Senate Commerce, Science, and Transportation
Latest Major Action: 2/4/2009 Referred to Senate committee. Status: Read twice and referred to the Committee on Commerce, Science, and Transportation.

12. S.389 : A bill to establish a conditional stay of the ban on lead in children's products, and for other purposes.
Sponsor: Sen Bennett, Robert F. [UT] (introduced 2/5/2009) Cosponsors (None)
Committees: Senate Commerce, Science, and Transportation
Latest Major Action: 2/5/2009 Referred to Senate committee. Status: Read twice and referred to the Committee on Commerce, Science, and Transportation.

13. S.608 : A bill to amend the Consumer Product Safety Improvement Act of 2008 to exclude secondary sales, repair services, and certain vehicles from the ban on lead in children's products, and for other purposes.
Sponsor: Sen Tester, Jon [MT] (introduced 3/17/2009) Cosponsors (None)
Committees: Senate Commerce, Science, and Transportation
Latest Major Action: 3/17/2009 Referred to Senate committee. Status: Read twice and referred to the Committee on Commerce, Science, and Transportation.

14. S.AMDT.964 to S.CON.RES.13 To establish a deficit-neutral reserve fund to protect small and home businesses from the burdensome and impractical requirements of the Consumer Product Safety Improvement Act of 2008.
Sponsor: Sen DeMint, Jim [SC] (introduced 4/2/2009) Cosponsors (5)
Latest Major Action: 4/2/2009 Senate amendment not agreed to. Status: Amendment SA 964 not agreed to in Senate by Yea-Nay Vote. 39 - 58. Record Vote Number: 151.

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CPSIA reform bills inch ahead

2009-02-18T22:43:00.000-08:00

The original bill (S. 374) introduced in the senate was joined by a companion bill (HR 968) in the House of Representatives on Feb. 10, 2009, which is virtually identical to the Senate bill by DeMint. There is also a much shorter bill (S. 389) to establish a conditional stay of the ban on lead in children's products (introduced in the Senate on Feb 5, 2009) that seems to only delay implementation. The house bill was referred to the House Committee on Energy and Commerce and S. 374 was referred to the Senate Committee on Commerce, Science, and Transportation under the subcommittee on consumer affairs.

We will try to watch these bill as best we can. Bills can languish for months and then pass fairly quickly so make sure your sign up for our news alerts on the left side of this page. We really would like to see a site like this put up by the BPSA. Otherwise if you need to write to your Federal Congressman or Senator urging them to pass these bills (or how they should be changed to help your specific situation) start here to find all their contact info based on your zip code. Dont forget to also check your business AND home zip code as they may be in two different districts.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

CPSC indefinitely delays determination on industry petitions seeking exclusions from lead limits

2009-02-12T22:56:00.000-08:00

The CPSC just posted their "response" to a number of industry petitions filed well before February 10, 2009 seeking exemptions or exclusions from the lead limits for various reasons. It seems the BPSA was in good company as the Motorcycle Industry Council was also petitioning.

The letters in response to the petitions were all about the same. Bottom line: not good news but not bad...just more waiting until the CPSC can figure out what to do. In CPSC speak the letter said in conclusion: "Because the Commission lacks the authority to grant the "temporary final rule" you seek, we are not docketing your request as a petition. Your request will be considered as part of the ongoing rulemakings for exclusions or exceptions from the section 101 lead limits. The staff will assess your request accordingly..." Of course no date was given when they will make a decision. Sound Familiar? In the meantime though all of you in the supply chain are still subject to the lead limits (testing or not) and if and until Congress acts the Sword of Damocles will remain over your heads.

Here are the petitions and the respective letter responses (by the way the letters from the CPSC are all dated February 9, 2009 but this information was not posted by CPSC until late on February 12, 2009):

Bicycle Product Suppliers Association (BPSA) (January 28, 2009) and Response from CPSC General Counsel (February 9, 2009)

Jim Boltz Cycle Barn Motorsports Group (January 30, 2009) and Response from CPSC General Counsel (February 9, 2009)

Motorcycle Industry Council (MIC) (January 28, 2009) and Response from CPSC General Counsel (February 9, 2009)

Specialty Vehicle Institute of America (SVIA) (January 28, 2009) and Response from CPSC General Counsel (February 9, 2009)

Polaris Industries, American Suzuki Motor Corporation, Arctic Cat Inc., Kawasaki Motors Corp., U.S.A., American Honda Motor Co., Inc., and Yamaha Motor Corporation (January 27, 2009) and Response from CPSC General Counsel (February 9, 2009)

Also on Feb 12, 2009 the CPSC issued a Notice of Availability of Draft Guidance Regarding Which Children's Products are Subject to the Requirements of CPSIA Section 108 (Regarding Phthalates); Request for Comments and Information The CPSC is seeking comments on whether the Commission should follow the exclusions listed in ASTM F963 for meeting the new Phthalates requirements (along with a host of other issues). The CPSC staff looked to the definition of “toy” in the ASTM F963-07 toy safety standard for guidance. (The CPSIA makes ASTM F963 a mandatory CPSC standard on February 10, 2009) ASTM F963 excludes certain types of articles (such as Bicycles, Tricycles etc; see above pdf for a list) from the definition of toy.

Clearly we want bicycles any other "non toys" to remain free of the new Phthalates requirements as they currently are.

Please read the above PDF and file comments with the CPSC by e-mail to: section108definitions@cpsc.gov. Comments are due by March 12, 2009. Comments also may be filed by fax to (301)504-0127. Comments should be captioned “Notice of Availability of Draft Guidance Regarding Which Children’s Products are Subject to the Requirements of CPSIA Section 108; Request for Comments and Information.”

Last but not least, we have not heard anything further on Senate bill S. 374 except for the request of Senator DEMINT to add the names of the Senator from Kansas (Mr. BROWNBACK), the Senator from Oklahoma (Mr. COBURN), the Senator from Idaho (Mr. CRAPO) and the Senator from Oklahoma (Mr. INHOFE) as cosponsors of S . 374, a bill to amend the Consumer Product Safety Act to provide regulatory relief to small and family-owned businesses. As there is now a groundswell of support against the "unintended consequences" of the lead ban we may see a faster move by Congress than the CPSC (provided Congress can resolve the Stimulus Bill soon as that is using up all available resources in Congress now.)

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© Copyright 1996-2008 Conditions of Use

CPSC publishes "manufacturer/importer" guide for CPSIA

2009-02-09T21:24:00.000-08:00

The CPSC booklet (just issued on the night before the Feb. 10. 2009 ban goes into effect) is in a question and answer format. There is some useful information in this book. Most importantly are the following two pronouncements of "enforcement " policy. The issue on question 18 had not been addressed squarely by the CPSC until this publication as far we know:

Question 11: What products are covered by the prohibition on the use of phthalates?
Three phthalates, DEHP, DBP, and BBP, have been permanently banned in concentrations of more than 0.1% in “children’s toys” or “child care articles.”

A “children’s toy” is a product intended for a child 12 years of age or younger for use when playing. General use balls, bath toys/bath books, dolls and inflatable pool toys are examples of toys that are covered by the law and might contain phthalates. Bikes, playground equipment, musical instruments, and sporting goods (except for their toy counterparts) are not considered toys and therefore not affected by the ban. (swhlaw: This "toy" rationale does not apply to the lead ban from what we read)

Question 18: Do bikes that are not intended primarily for children 12 and under need to comply with the lead limits?

No. The lead limits in the CPSIA only apply to products intended or designed primarily for children 12 and under. The lead limits apply only to those bikes which by nature of their size, design or other similar factors indicate that they are intended or designed primarily for children. Thus, a bike with a 24” wheel size or smaller would generally be considered a children’s bike and would need to comply.

Then there is the classic catch 22 line:

Question 7: When testing and certification are not yet required (for example, lead content and phthalates), what do I need to do?

For these standards, no third‐party testing or certificate is needed before February 10, 2010; however, manufacturers must still ensure their products meet the requirements of the law. (swhlaw: But of course you will have no way of knowing that you meet the requirements unless you test. Great)

And then the final parting shot:

Question 19: What happens if I sell a product in violation of the CPSIA or other applicable laws?

The Commission’s response to a violation of the law varies depending upon the circumstances, including the nature of the product defect, the number of products, the severity of the risk of injury associated with the product and the type of violation. The Commission’s goal is to help you to avoid future violations and protect your customers, not to put you out of business.

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Statement of CPSC Enforcement Policy on Lead Limits

2009-02-08T22:32:00.000-08:00

Preparing for "D" Day

On February 6, 2009 the CPSC issued the "Statement of Commission Enforcement Policy on Section 101 Lead Limits" in view of the fact that that the first requirement on the total lead content of children's products, 600 parts per million, becomes effective on February 10, 2009. An interim final rule was necessary at this time because the CPSC's options to craft a rule after public comment and thoughtful consideration are limited by the CPSIA (the law Congress passed in August) after February 10, 2009. This is because CPSIA does not allow the CPSC to stay the applicability of the lead ban to electronics while they finish their "normal" rulemaking process.

I dont not see anything in this Policy that will be "helpful" to most bicycle and recreational product manufacturers that have metal (like recycled steel or brass alloys) in their products.

It is important to point out that Section 214 of the Consumer Product Safety Improvement Act amended section 15(b) of the Consumer Product Safety Act to expand the types of violations that must be reported to the Commission. Under section 15(b) as amended, any manufacturer (including an importer), distributor or retailer must report to the Commission immediately if it obtains information that reasonably supports the conclusion that a product fails to comply with a standard or ban under any Act enforced by the Commission.

Accordingly, manufacturers, distributors and retailers must report to the Commission if they become aware of a children's product that exceeds the applicable lead limits in any accessible part" (including the higher limits for certain electronic components and devices) and that is being manufactured for sale in the United States, imported for sale, distributed, held for distribution or sale, offered for sale, or sold after February 10, 2009.

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California Enforcement of CPSIA

2009-02-07T11:45:00.000-08:00

For those of you within the jurisdiction of the California Attorney General Jerry Brown (who may be running for Governor of this state) it is important to point out that the AG did not agree with the CPSC's decision (based upon its reading and interpretation of Congress' intent) that only consumer products manufactured after February 10, 2009 were subject to the phthalates ban. In a letter to the CPSC dated December 3, 2008 in citing A.B. 1108 the AG's office stated:

"As of January 1, 2009, it will be illegal to sell, distribute, or manufacture toys and child care articles in California with greater than 0.1 percent of six specified phthalates, regardless of when or where the products were manufactured. The effective date of the federal CPSIA does not affect implementation of California’s phthalate restrictions. Because A.B. 1108 will have been on the books for over 14 months before its phthalate limits take effect, we believe that industry has had sufficient time to prepare to comply with the requirements that take effect on January 1, 2009. The Attorney General, and other public enforcers, can and will enforce California's phthalate ban after that date."

As it turns out a federal court made that point somewhat moot in agreeing that the phthalates ban can be retroactive.

What is more disconcerting however is that the CPSIA also gives state attorney generals some enforcement power under the new law. The extent of that authority and the discretion that will be used by the AG's in accordance with the CPSC's own eventual discretion will be very interesting indeed. One can only assume that with Proposition 65 in California and a host of other safety and consumer oriented statutes we can only assume that California will be more aggressive on this front than most other states. Of course then there is the 2009 budget crisis which at this point may furlough the entire AG's office. At least for the time being.

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DeMint Introduces Consumer Product Safety Reform Bill

2009-02-06T11:32:00.000-08:00

click here to Link to bill

Legislation will protect families, charities and small businesses from regulations and lawsuits that could kill thousands of jobs

February 5, 2009 - Today, U.S. Senator Jim DeMint (R-South Carolina) announced the introduction of a bill protect small businesses, charities and families by reforming the Consumer Product Safety Improvement Act of 2008 (CPSIA). Senator DeMint’s legislation would stop the most overreaching and burdensome aspects of CPSIA, slated to take effect February 10. Unless reformed, the new law will demand onerous testing for anything geared towards children age 12 and under. This mandate would fall on books, toys, clothing, hair bands, board games, sporting equipment, backpacks, and even special learning equipment made for children with disabilities.

Cosponsors of the DeMint reform legislation include U.S. Senators Sam Brownback (R-Kansas), Saxby Chambliss (R-Georgia), Mike Crapo (R-Idaho), David Vitter (R-Louisiana) and Roger Wicker (R-Mississippi). Senator DeMint’s legislation has been endorsed by the U.S. Chamber of Commerce, the National Federation of Independent Business, the Coalition for Safe and Affordable Childrenswear, and the Handmade Toy Alliance. The legislation has also been offered as an amendment the Democrat economic stimulus bill currently being debated in the Senate, as these reforms would save thousands of jobs.

“In the rush to ‘do something’ Congress has overreacted and threatened to kill thousands of jobs, small businesses and harm charities around the country,” said DeMint. “At a time when jobs are disappearing, businesses are struggling and investments are plummeting, burdensome and overreaching government regulation is not the answer. The original bill needs to be altered to strike a better balance between the bill’s laudable goals and the common sense necessary to enforce it.”

“The way this law was hastily written opens the door to lawsuits against families that hold yard sales with children’s toys or charities that provide a vital service to low-income Americans. We simply cannot allow this law to go unreformed. We must take action quickly to protect American families, charities and small businesses from these misdirected regulations.”

The Consumer Products Safety Improvement Act of 2008 was hastily passed through Congress and into law last fall in response to a lead paint scare involving children’s toys manufactured in China. Unfortunately, the law places more burdens on domestic producers than toymakers overseas, requiring onerous testing for lead and other toxic substances for any products geared towards children age 12 and under, threatening to shutdown consignment shops, thrift stores and small manufacturing businesses.

Senator DeMint’s legislation (S. 374) has six major reforms:

1. Delays the overreaching regulations six months so that all parties can work together to address the needs of our small businesses and the needs of product safety.
2. Allows small manufacturers to use the testing and certification that their component suppliers have done to certify that the components do not contain an impermissible amount of lead. This will save small manufacturers from having to subject their products -- many of which are made in small runs -- to duplicative and expensive multi-thousand dollar tests.
3. Exempts thrift stores, yard sales, consignments shops and other re-sellers from the prohibitions in the act. Goodwill, the Salvation Army and your local flea market were never the source of the product safety concerns encountered last year, and they won’t be in the future. They are good actors trying to provide Americans of modest means with value oriented products. They shouldn’t be subjected to tens of thousands of dollars in potential liability.
4. Prevents retro-active enforcement of the act. There are millions of dollars of safe products in the warehouses and stores around the country today, which could become un-sellable under CPSIA. This will prevent thousands of products from being destroyed and the livelihood of thousands of businesses from being threatened.
5. Provides a Good-Faith Exemption. The act and its associated regulations are extremely complex. Small manufacturers are having difficulty understanding what the act requires of them. While many small businesses are doing their best to comply with the act it's possible someone could accidentally run afoul of the act. If they can show that their error was made in good-faith, my bill will provide them with a one-time exemption from sanction.
6. Requires the CPSC to provide small businesses with a compliance guide. This is an extremely technical regulation that impacts a number of small businesses who don’t have large compliance departments to decipher the regulations for them. Senator DeMint’s bill would require the CPSC, in consultation with the state and federal small business agencies, to develop a compliance guide that addresses the concerns of the small business community.

CONGRESS MUST KEEP OVERREACHING CONSUMER PRODUCTS SAFETY IMPROVEMENT ACT FROM HARMING SMALL BUSINESSES, FAMILIES

Posted by Senator Jim DeMint 01/30/2009 - 05:06:40 PM
http://demint.senate.gov

As you may be aware, beginning next month many of America’s small and home businesses will be forced to radically alter their practices and products as prescribed by the burdensome Consumer Products Safety Improvement Act of 2008 (CPSIA). This bill mandates stringent and overreaching federal standards, under the guise of safety requirements that will unfortunately threaten the well-being and further livelihood of thousands of America’s workers and their families. It was my position when the bill was being debated on the Senate floor, as it remains today, that this bill could have -- and should have -- better balanced the need for safety with a common-sense business approach.

In an effort to keep the doors of these small businesses open, and protect the livelihood of many families, I will be introducing legislation early next week that will present much needed reform to the CPSIA. This legislation will:

1. Delay the regulations six months. There is massive confusion and uncertainty in the small and home business community. The regulations are unclear and compliance will be practically impossible for many manufacturers. Further the comment period on many of the implementing regulations will extend beyond the February 10 deadline. When a clear path of compliance is not available, it is patently unfair to expect industry to be able to meet those compliance requirements. My bill will delay the implementation six months so that all parties can work together to address the needs of our small businesses and the needs of product safety.
2. Allow small manufacturers to use the testing and certification that their component suppliers have done to certify that the components do not contain an impermissible amount of lead. Lead isn’t going to come out of thin air. If the lead’s not in the components, it won’t be in the product. This will save small manufacturers from having to subject their products -- many of which are made in small runs -- to duplicative and expensive multi-thousand dollar tests.
3. Exempt thrift stores, yard sales, consignments shops and other re-sellers from the prohibitions in the act. Goodwill, the Salvation Army and your local flea market were never the source of the product safety concerns encountered last year, and they won’t be in the future. They are good actors trying to provide Americans of modest means with value oriented products. They shouldn’t be subjected to tens of thousands of dollars in potential liability. It these times of economic hardship it’s stores like Goodwill and the Salvation Army that we should be protecting.
4. Prevent retro-active enforcement of the act. There are millions of dollars of safe products in the warehouses and stores around the country today, that come February 10 will be un-sellable. These products have not threatened the safety of the public in any way, but because they haven’t been subjected to the expensive certification requirements of the act, retailers will not sell them and are often demanding that manufacturers eat their costs. It’s completely illogical that a product that’s safe for sale on February 9 somehow becomes completely unsafe on February 10. My bill will address this by only requiring that products manufactured after the effective date of the regulations have to comply with the requirements of the act. This will prevent thousands of products from being destroyed and the livelihood of thousands of businesses from being threatened.
5. Provide a Good-Faith Exemption. The act and its associated regulations are extremely complex. Small manufacturers are having difficulty understanding what the act requires of them. While many small businesses are doing their best to comply with the act it's possible someone could accidentally run afoul of the act. If they can show that their error was made in good-faith, my bill will provide them with a one-time exemption from sanction.
6. Require the CPSC to provide small businesses with a compliance guide. This is an extremely technical regulation that impacts a number of small businesses who don’t have multi-staff compliance departments to decipher the regulations for them. My bill would require the CPSC in consultation with the state and federal Small Business Administrations to develop a compliance guide that addresses the concerns of the small business community.

It is my sincere hope that these reforms will ensure that children’s products remain safe and that our small businesses remain afloat. In this time of economic uncertainty it is inexcusable that we are placing small businesses -- the proven engine of job creation -- in such peril.

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National Association Of Manufacturers (NAM) Petiion denied

2009-02-06T09:51:00.000-08:00

In the latest saga the CPSC just denied, on Feb 5, 2009, the National Association of Manufacturers petition for stay of the lead limits which go into effect on February 10, 2009. The denial can be read by clicking here.

The Commission stated in part:
"What the Commission cannot do, by rule or otherwise, is change the statutory effective date of a congressionally imposed ban. The Consumer Product Safety Improvement Act is quite specific as to the relief the Commission is authorized to take by way of exemptions or exceptions. Section 101(e) even goes so far as to say that the effective dates of the limits set by the Act are not to be delayed by the pendency of a Commission rulemaking proceeding for certain specific issues such as requests for exceptions or exemptions. The Congress has spoken on this issue and while the Commission will do everything in its power to ameliorate the impact of this decision, it cannot change it."

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Phthalate limits in CPSIA are retroactive court rules

2009-02-05T14:36:00.000-08:00

On November 17, 2008, the Consumer Product Safety Commission (“CPSC”) issued an advisory opinion stating that the phthalate limits in Section 108 of the Consumer Product Safety Improvement Act (“CPSIA”) did not apply to products manufactured prior to February 10, 2009, and therefore would not be applied retroactively. However, the CPSC’s interpretation of the phthalate prohibitions received immediate criticism from members of Congress, state Attorney Generals, and consumer advocacy groups.

On December 4, 2008, two consumer advocacy groups, the National Resources Defense Council, Inc. (“NRDC”) and Public Citizen, Inc. (“PC”) filed a lawsuit against the CPSC. The NRDC and PC asked the Court to set aside the opinion of the CPSC and declare that the phthalate provisions are retroactive. The Court did just that. The full opinion can be read here

The Court stated that Section 108 of the CPSIA unambiguously forbids the continued sale and distribution of products that violate the prohibitions, whether in inventory or otherwise. The Court, with excruciating detail, cataloged the faults in the CPSC’s opinion letter and explained why Section 108 clearly applies to existing inventory. The Court found that the language and the structure of the CPSIA unambiguously states that the phthalate provisions of Section 108 apply to all products offered for sale after February 10, 2009, including existing inventory. In addition, the Court found that the statutory purpose and legislative history of the CPSIA also support this conclusion.

Therefore as of February 10, 2009, all non-complaint toys and child care articles must be removed from store shelves and inventory, and destroyed. These products can no longer be sold, stored or transported after this date.

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Profile of Steven W. Hansen

2009-02-04T13:43:00.000-08:00

I graduated from Brigham Young University in 1983 with a Bachelor of Science degree and from Pepperdine University School of Law in 1986. Since 1986 I have practiced in many of the areas outlined in the firm profile at both national and small firms. I founded this firm in 1994. Many of the practice areas outlined in the firm profile overlap and I have gained experience in some areas of the law because of the unusual fact patterns of particular cases. Most of the practice areas are complimentary. I have learned that many cases require a knowledge of more than one practice area to be properly defended.

I am a cycling enthusiast and have covered most of the US (and about 15 foreign countries) on a bicycle as well as followed the routes of the Tour de France (1991, 2000, 2001, 2003, 2006), Giro d'Italia (1992, 1999, 2002), Tour de Suisse (1993 and 2004) and Tour Du Pont (1994, 1995) by bicycle. Some of my bike trips can bee seen here. I complete all of my own repairs and maintain all my own bicycles. I am a former licensed USCF bicycle racer and current CBR licenced rider, have finished over 200 sanctioned road, mountain and biathlon race events and ridden over 125,000 miles since 1986. Every year I attend most of the major industry trade shows such as Interbike and keep current with industry and consumer publications covering cycling.

MEMBERSHIPS, PUBLICATIONS AND PRESENTATIONS

Member, California State Bar, 1986 to Present.

Admitted, United States District Court for the Southern and Central Districts, 1987 to present.

Member, Defense Research Institute (DRI), Product Liability Committee and Manufacturer's Risk Prevention Specialized Litigation Group, 1998-1999.

Secretary, The American Society for Testing and Materials (ASTM) F08.10 Subcommittee on Bicycles (within the F08 Committee on Sports Equipment and Facilities) 1996 to 2004; member 1996 to present.

Columnist, "A Legal Viewpoint", Bicycle Retailer and Industry News, 1994 to 2003. Selected articles can be viewed here.

Editor, Product Liability Defense Newsletter, a topical newsletter distributed electronically to over 2000 product manufacturers, distributors and retailers, 1997 to present.

Editor, Insurance Industry Newsletter, a topical newsletter distributed electronically to over 300 insurance brokers, insurance underwriters, claims adjusters and in house counsel, 1999 to present.

Legal Advisor to the BSE Board (Bicycle Standards of Excellence), which tests bicycle retail employees for assembly competence, 1999-2001.

Founding Legal Advisor to the U.S. Electric Bicycle and Scooter Association, an association intended to advance and standardize electric bicycles and scooters.

Approved Panel Counsel, Independent Cities Risk Management Authority (ICRMA), 1994 to present.

President, Paramount Racing, United States Cycling Federation Club license #274, Orange County California; a 75 member race team part of a 400 member recreational club; 1998 through 2001.

Member, United States Cycling Federation (now USA Cycling), Category 4 road racing; 1997 to 2003.

Member, California Bicycle Racing, (organization which sanctions bicycle racing) Category 4 road racing; 2003 to current.

Member, League of American Bicyclists, Legal Network, 2006 to current.

Member, San Gabriel River Master Plan Stakeholder Committee, Los Angeles County Dept. of Public Works, personally responsible for hundreds of thousands of dollars of bike path improvements along the San Gabriel River Bicycle Path, 2002 to current.

Panel Speaker / Moderator, “Product Standards and Recalls”, Bicycle Business Leadership Conference, BPSA Annual Meeting, San Diego, California, January 2003

Panel Speaker, "Product Liability Litigation Symposium", Bicycle Industry Organization (BIO) Annual Convention, Las Vegas, Nevada, September 1994 (BIO was a competing trade show organization to Interbike)

Panel Speaker, "Product Liability Prevention Programs and Efforts", addressing the Defense Research Institute (DRI) Product Liability Committee and Manufacturer's Risk Prevention Specialized Litigation Group yearly meeting, (now referred to as: "Recreational Products Specialized Litigation Group") New Orleans, Louisiana, February 1998

Featured Speaker, "Product Liability Basics for the Bicycle Retailer", CABDA World Cycling Expo, Rosemont Convention Center, Chicago, Illinois, October 30 - November 1, 1998 (Chicago Area Bicycle Dealers Association "CABDA" was the producer of the longest running bicycle trade show in the United States)

Featured Speaker, "Employment Law Basics for the Bicycle Retailer", CABDA World Cycling Expo, Rosemont Convention Center, Chicago, Illinois, October 30 - November 1, 1998

Guest Speaker, "Risk Management", addressing the Diving Equipment and Marketing Association (DEMA), Board Meeting, Irvine, California, July 1993

Guest Speaker, "Standards Development", addressing the International In-Line Skating Association (IISA), Sporting Goods Manufacturers Association (SGMA) annual meeting, Palm Beach, Florida, October 1995

Invitee, "Indy Dealer Expo Show" Largest Motorcycle Trade Show in the USA, Indianapolis, IN, February 2006.

Article, "Business Basics: Limiting Suspension Liability", Off-Road Retailer Magazine, March/April 2005.

Article, "The Law and Bike Rentals: What you can do to help protect yourself from legal liability", Outspokin', official publication of the National Bicycle Dealers Association (NBDA), June 1995.

Feature Article, "Using Standards in Defending Product Liability Cases", ASTM Standardization News, February 1996

Contributing Author, “Electric Bikes Worldwide Reports” appearing in the 7th, 8th and 9th (2009) editions; published by Electric Bikes Worldwide Report by Frank E. Jamerson PhD.

Article, "Covering Your Assets", Mountain Bike Magazine, October 1996 page 124-125 and December 1996 page 132-133.

Quoted, "Reducing Rental Liability", Inline Retailer and Industry News, June 1996

Quoted, "UL Inspected", Home Theater Magazine, Feature Article, January 1998

Quoted, "The Dark of Heartness", Mountain Bike Magazine, Feature Article profiling product liability suits in the bicycle industry, September 1998

Quoted, "Risky Business: Liability Is Serious Threat To Mountain Bike Parks", Bicycle Retailer and Industry News, August 1, 2006

Attendee, "CPSIA Legislative Update", Bicycle Leadership Conference "BLC" , Monterey California, April 15-17, 2009

Attendee, "Seminar on the Role of Standards in Sports Litigation", ASTM F.08 Committee on Sports Equipment and Facilities , Denver Colorado, May 15-16, 1995

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© Copyright 1996-2008 Conditions of Use

Petition by BPSA to CPSC

2009-02-01T13:53:00.000-08:00

The press release from the CPSC on Jan 30 2009 was somewhat deceiving. It was not much of a stay of enforcement and will not assist companies whose products likely contain lead over the 600ppm limit which goes into effect Feb 10, 2009. What is most interesting is Congress is now trying to blame the CPSC for the mess, but it was congress who created the 600 ppm lead ban and the February 10, 2008 compliance date with very little clarification. It was relying on the CPSC to get it implemented via implementing regulations between August 2008 when the bill passed and February when the lead limits come into effect. At this point the best thing that the bike related companies can do is write to the CPSC directly asking them to act on the BPSA emergency petition filed with the CPSC last week and ask that they act on it before Feb 10. The National Association of Manufacturers (NAM) is asking for less focused relief (mostly arguing the economic effects which may work better with Congress than the CPSC) and their petition is not based on a scientific testing approach like the BPSA's. Here is the NAM petition: http://www.cpsc.gov/library/foia/foia09/brief/stay101.pdf We feel the BPSA petition is better and more targeted and is more likely to have success with the CPSC. At this time writing to Congress is not the best approach but that may be required next week if the CPSC fails to act on the BPSA petition. In the latest developments, Congress has asked President Obama to ask Acting Chairman Nancy Nord to step down to the confusion that has resulted from this law. The letter can be seen here

Write to:

Acting Chairman Nancy Nord
Commissioner Thomas Moore
U.S. Consumer Product Safety Commission
4330 East-West Highway
Bethesda, MD 20814
Fax: (301) 504-0124 or (301) 504-0025
or email http://www.cpsc.gov/cgibin/commissionernord.aspx

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CPSC Grants One Year Stay of Testing and Certification Requirements for Certain Products

2009-01-30T22:31:00.000-08:00

NEWS from CPSC
U.S. Consumer Product Safety Commission
Office of Information and Public Affairs
Washington, DC 20207

FOR IMMEDIATE RELEASE
January 30, 2009
Release #09-115

CPSC Recall Hotline: (800) 638-2772
CPSC Media Contact: (301) 504-7908

CPSC Grants One Year Stay of Testing and Certification Requirements for Certain Products

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission voted unanimously (2-0) to issue a one year stay of enforcement for certain testing and certification requirements for manufacturers and importers of regulated products, including products intended for children 12 years old and younger. These requirements are part of the Consumer Product Safety Improvement Act (CPSIA), which added certification and testing requirements for all products subject to CPSC standards or bans.

Significant to makers of children's products, the vote by the Commission provides limited relief from the testing and certification requirements which go into effect on February 10, 2009 for new total lead content limits (600 ppm), phthalates limits for certain products (1000 ppm), and mandatory toy standards, among other things. Manufacturers and importers - large and small - of children's products will not need to test or certify to these new requirements, but will need to meet the lead and phthalates limits, mandatory toy standards and other requirements.

The decision by the Commission gives the staff more time to finalize four proposed rules which could relieve certain materials and products from lead testing and to issue more guidance on when testing is required and how it is to be conducted.

The stay will remain in effect until February 10, 2010, at which time a Commission vote will be taken to terminate the stay.

The stay does not apply to:

*Four requirements for third-party testing and certification of certain children's products subject to:

**The ban on lead in paint and other surface coatings effective for products made after December 21, 2008;

**The standards for full-size and non full-size cribs and pacifiers effective for products made after January 20, 2009;

**The ban on small parts effective for products made after February 15, 2009; and

**The limits on lead content of metal components of children's jewelry effective for products made after March 23, 2009.

*Certification requirements applicable to ATV's manufactured after April 13, 2009.

*Pre-CPSIA testing and certification requirements, including for: automatic residential garage door openers, bike helmets, candles with metal core wicks, lawnmowers, lighters, mattresses, and swimming pool slides; and

*Pool drain cover requirements of the Virginia Graeme Baker Pool & Spa Safety Act.

The stay of enforcement provides some temporary, limited relief to the crafters, children's garment manufacturers and toy makers who had been subject to the testing and certification required under the CPSIA. These businesses will not need to issue certificates based on testing of their products until additional decisions are issued by the Commission. However, all businesses, including, but not limited to, handmade toy and apparel makers, crafters and home-based small businesses, must still be sure that their products conform to all safety standards and similar requirements, including the lead and phthalates provisions of the CPSIA.

Handmade garment makers are cautioned to know whether the zippers, buttons and other fasteners they are using contain lead. Likewise, handmade toy manufacturers need to know whether their products, if using plastic or soft flexible vinyl, contain phthalates.

The stay of enforcement on testing and certification does not address thrift and second hand stores and small retailers because they are not required to test and certify products under the CPSIA. The products they sell, including those in inventory on February 10, 2009, must not contain more than 600 ppm lead in any accessible part. The Commission is aware that it is difficult to know whether a product meets the lead standard without testing and has issued guidance for these companies that can be found on our web site.

The Commission trusts that State Attorneys General will respect the Commission's judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.

STATEMENT OF ACTING CHAIRMAN NANCY NORD ON THE STAY OF ENFORCEMENT OF CERTAIN TESTING AND CERTIFICATION REQUIREMENTS OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 2008 January 30, 2009

Today the Commission voted to stay the enforcement of certain testing and certification provisions of the Consumer Product Safety Improvements Act (CPSIA) scheduled to go into effect on February 10, 2009. The stay is for one year and can be lifted only with an affirmative vote of the Commission. This stay does not extend to testing and certification required by Commission regulations issued before enactment of the CPSIA and certain third party and other testing requirements already adopted by the Commission.

Consumer safety is the foremost consideration of this agency. Nevertheless we must be mindful of the chaos and confusion that this new law has created in the marketplace. The action we are taking today puts in place a limited time-out” so that the Commission and the Congress can address the issues with the law that have become so painfully apparent. The stay will give the CPSC time to develop and issue rules defining responsibilities of manufacturers, importers, retailers, and testing labs. It will give the Commission time to rule on exemptions and exclusions from the lead provisions and develop and put in place appropriate testing protocols. It will give staff time to develop an approach to component parts testing, given the ambiguity of the statute on this point.

It is important to clearly understand what the stay does and does not do. The stay of enforcement of the testing and certification provisions will give some temporary and limited relief to small manufacturers, home-based businesses and crafters who cannot comply with the law without incurring substantial testing costs. However, the stay does not relieve them of complying with the underlying requirements enacted by Congress and which go into effect on February 10, 2009, dealing with lead, phthalates and a number of other toy standards. Any changes to these requirements will need to be addressed by Congress.

The stay of enforcement does not provide relief for the charities, thrift shops, resellers and small retailers who are impacted especially hard by the retroactive effect of the lead ban to existing inventory. While these groups do not have a legal requirement to test their inventory, they must meet all standards enacted by Congress. Thrift shops, charities and other sellers will have to decide whether they will continue to sell children’s clothing and other products that have not been tested, even though no one has suggested that they are unsafe. The retroactive nature of the lead ban has caused much of the concern that has been voiced over this law but Congress will need to address that issue; the CPSC cannot.

The CPSC is committed to implementing the Act as fairly and as efficiently as possible given the constraints of the law. I have given the same commitment to Congress in a letter, attached to this statement, which also addresses concerns raised by the law and its implementation. The action taken today provides breathing space to get in place some of the rules needed for implementation, but it should not be viewed as a full solution to the many problems that have been raised.

STATEMENT OF THE HONORABLE THOMAS H. MOORE ON THE STAY OF ENFORCEMENT OF CERTAIN OF THE TESTING AND CERTIFICATION REQUIREMENTS OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 2008 January 30, 2009

The Consumer Product Safety Improvement Act (CPSIA) embodies a bold and, for some, painful shift in how product safety is assured in this country. Prior to the high profile recalls of 2007 and 2008, many consumers wrongly assumed that products, particularly ones designed for children, were pre-tested by the government before they entered the marketplace. They were shocked to learn that not only was there no pre-market testing by the government, but many products were not even adequately tested by the manufacturers of the products. Consumer outrage at this state of affairs made Congress decide that, at least for children’s products, manufacturers had to have their products tested by third party testing laboratories and certify that their products met all applicable safety standards. This provision applied to all manufacturers, regardless of their size. Now it is the business community’s turn to be shocked.

The Consumer Product Safety Commission’s (CPSC) safety requirements have always applied to all manufacturers of children’s products, even the small crafter who makes products at home. But until the enactment of the CPSIA, the government had not required all manufacturers to affirmatively prove that their products complied with those requirements by having them tested. From the outpouring of letters, emails and phone calls to the agency, it is clear that many smaller manufacturers did not know that there were any federal standards that applied to their products, had no idea how to have their products tested and may never have heard of the CPSC, or if they had, did not think this agency had any relevance to their business. Their reaction made a number of things clear:

That the new electronic media channels, particularly the blogs, are tremendously useful tools for disseminating important information to small businesses, but that they can also be a channel for spreading confusing misinformation, That the Commission has not done enough to make the home crafters and other smaller businesses aware of their pre-existing obligations under the law, That the new law (CPSIA) has done what the Commission had not been able to do, get the attention of many, many of these smaller manufacturers with respect to their responsibility to assure the safety of their products, and That the vast majority of these smaller businesses, while they may not know the specific rules that apply to their products, are likely making safe products, or they would have come to our attention.

Many of the smaller businesses do have legitimate concerns about how they will comply with the new law and the cost of the new testing and certification requirements. However, their fears are being fueled to some extent by others who, through an aggressive misinformation campaign, are trying to create a groundswell of panic that will lead to the repeal of the testing and certification requirement entirely.

The goal of the testing and certification provision is a sound one: to make sure every manufacturer of a children’s product, no matter their size, regardless of where they are located, knows the standards that apply to their products and takes the appropriate steps to ensure compliance with those standards before the products are put into the hands of consumers. The closer we get to that goal, the fewer recalls our agency will have to undertake and the fewer injuries we will see to children.

Therefore, it is not an easy thing for me to vote to support a delay in enforcing the testing and certification requirements, but I think there are legitimate reasons for doing so. One important reason is to give the larger manufacturers and retailers an opportunity to create a market for pre-tested components—the kinds of things many large companies use in their products, but that are of particular interest to small crafters. Just one example are sewing components like zippers, buttons and snaps, which are the items in children’s apparel most likely not to meet the new lead content limits.

Major retailers appear to be on track to comply with the new law’s requirements. They are demanding complying components from their suppliers and it is reasonable to think that their demands will lead to a supply of pre-tested and certified components that will be available for the small home-based manufacturers. These components may first be available in those retailers crafting or notions departments. However, I foresee a huge market for craft and sewing and other components used by smaller manufacturers in making their products. There will be businesses that will supply that market, but they need time to develop.

The Commission also needs time to determine whether and under what circumstances component testing could be used as a surrogate for whole product testing. Assuming such an avenue is legally and practicably supportable, it could provide businesses (large and small alike) with an alternative to testing the finished product through the use of component parts already pre-tested and certified by the component part maker. While the Commission may not have the authority to require component part makers to test and certify their products, the demands of their customers will force them to bring their products into compliance. Some component manufacturers also need time to adjust their manufacturing processes to eliminate the random failures of their products to certain of the safety standards, which some companies are reporting. Small businesses also need more guidance from the Commission. We are working on filling that need, but the additional time that this stay will provide will enable us to give common sense information to help the small crafters feel comfortable in making and marketing their products without fear of violating the law.

This stay of enforcement does not stop the testing and certification requirements from going into effect, nor does it suspend the underlying product safety requirements. Thus, if during the stay period a company does not test and certify, our agency will not take enforcement action against the company on that ground. However, if the company puts a violative product into the market and that product causes injury to a child, rest assured that we will take whatever action is necessary to protect the public. This may seem like a Catch 22 to some people, but it really will not be for most of the smaller manufacturers who are so worried about the law’s application. If they have a history of making products that have caused no harm, as so many assure us in their communications, then they have no reason to fear this interim period. The Commission is not interested in putting small manufacturers out of business; we just want them to make safety one of their guiding principles. If there is one message a small manufacturer should take from the Commission’s action today it is this: If you have been making products without receiving any safety-related complaints, you should go on making and selling your products. You should, however, begin to look for and demand that the components you buy are certified as not containing lead or banned phthalates, as your demands can help to bring the component market into compliance. You also must familiarize yourself with all of your obligations under the various laws this agency administers. It is my hope that during this stay our agency will provide detailed guidance, particularly for the home-based manufacturers, on how to comply with requirements of the law.

I would expect the companies that can do testing and certification, and who have positioned themselves to comply with the law, will do so regardless of the stay. They should not use this stay as an excuse to delay what they are already doing or have planned to do. It is their compliance that will help develop the market for pre-tested, certified components. While the agency was not able to craft a workable small business exemption, this stay will help small businesses adjust to the new world of product safety. I do not foresee voting for an extension of this stay, so it behooves all manufacturers to prepare for the February 10, 2010 date when the testing and certification requirements will be enforced.

I am aware that some people will be unhappy with this stay, but I fear that without it, the forces that would like to do away with the testing and certification requirements will use the panic they have helped create to accomplish their goal. It should also be understood by all that although the Commission’s staff is extremely capable, they are few in number and they must be given adequate time to research, solicit, analyze, and develop all the information and data pertinent to these issues. It is this work that will provide the underpinning for sound recommendations to the Commission on future courses of actions with respect to implementing, and providing guidance for the implementation of, the requirements of the CPSIA. It is my hope that Congress will act quickly to give our agency the additional funding we need to enable us to move forward swiftly and aggressively to implement and enforce the CPSIA and to provide businesses with the guidance they have been seeking.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2009 Conditions of Use

Sen. Orrin Hatch (R-Utah) calls for Senate hearings on the unintended consequences of the CPSIA

2009-01-30T11:50:00.000-08:00

January 30th, 2009
Media Contact(s): Mark Eddington or Heather Barney, 202-224-5251

HATCH WANTS SENATE HEARINGS ON CONSUMER PRODUCT IMPROVEMENT ACT
Senator's Letter Outlines Concerns to Consumer Product Safety Commissioner
Letter to CPSC Commissioner Nancy Nord (PDF, 190 KB)
Letter to Chairmen Rockefeller and Hutchinson (PDF, 169 KB)
Letter to Chairmen Leahy and Specter (PDF, 164 KB)

WASHINGTON – Sen. Orrin Hatch (R-Utah) today called for Senate hearings on the unintended consequences of the Consumer Product Safety Improvement Act of 2008, which the president signed into law last August.

Hatch also delivered a letter to Nancy Nord, commissioner of the Consumer Product Safety Commission, in which he shared the concerns of many of Utah’s small-manufacturers and charities about the unintended consequences and potential liabilities they will face under the law, which goes into effect Feb. 10.

"I understand that states across the country, including Utah, are concerned and child safety should never be compromised,” Hatch wrote Nord in the letter. “However, the commission believes a legislative solution is necessary to alleviate the unintended consequences of the law. I am particularly concerned about the unintended consequences of the provisions that impose liability and penalties to those selling goods on the secondary market."

Recognizing the commission’s view that a legislative remedy is required to address other issues, Hatch further called upon the chairmen of the Senate Commerce, Science and Transportation Committee and the Senate Judiciary Committee to hold hearings.

Hatch is particularly worried about the law’s unintended consequences on resale businesses, handicraft stores, and small-toy manufacturers which operate in Utah. Under the new law, selling any product containing lead is a criminal offense, which makes resale business owners liable and makes it difficult for them to get insurance.

“Unless there are some changes, the legislation could end up placing undue hardships on many Utah companies, Hatch said. “That is neither desirable nor acceptable, especially during these tough economic times.”

In discussing the merits of Hatch’s letter, Nord acknowledged that the commission plans to soon release a modification of the certification requirements. She was clear that this is only one step in addressing the issues that have arisen as the commission attempts to implement the requirements in the enacted statute.

To see copies of Sen. Hatch's letters to Commissioner Nord and to the Senate Committee Chairmen, click on the PDF file below:

Hatchletters.PDF (96.0 KBs)

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

Liberalization of the Freedom of Information Act

2009-01-21T21:13:00.000-08:00

http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/

Date: 1/21/09
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Freedom of Information Act

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.

I direct the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. In doing so, the Attorney General should review FOIA reports produced by the agencies under Executive Order 13392 of December 14, 2005. I also direct the Director of the Office of Management and Budget to update guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish such guidance in the Federal Register.

This memorandum does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.

BARACK OBAMA

Scott Kirton et. al. v Jordan Fields et. al. No. SC07-1741 Dec 11, 2008 Sup. Ct. of Florida

2009-01-01T09:31:00.000-08:00

This is a Dec 2008 case from Florida which holds that a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in a "commercial activity". This is similar to the Hawkins v Peart case in Utah. Amazingly California has not followed this line of decisions yet. A pdf version of this case is printable by clicking here

Supreme Court of Florida No. SC07-1739 SCOTT COREY KIRTON, etc., et al., Petitioners, vs. JORDAN FIELDS, etc., et al., Respondents. No. SC07-1741 DEAN DYESS, Petitioner, vs. JORDAN FIELDS, etc., et al., Respondents. No. SC07-1742 H. SPENCER KIRTON, et al., Petitioners, vs. JORDAN FIELDS, etc., et al., Respondents.

[December 11, 2008] QUINCE, C.J.

We have for review the decision of the Fourth District Court of Appeal in Fields v. Kirton, 961 So. 2d 1127 (Fla. 4th DCA 2007), which certified the following question to be of great public importance:

WHETHER A PARENT MAY BIND A MINOR’S ESTATE BY THE PRE-INJURY EXECUTION OF A RELEASE. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. 1 For the reasons discussed below, we answer the certified question in the negative and hold that a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in a commercial activity. 2 1. The Fourth District also certified conflict with the decision of the Fifth District Court of Appeal in Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998). However, subsequent to its decision in Lantz and subsequent to the certification of conflict, the Fifth District decided Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112 (Fla. 5th DCA 2008), where the Fifth District aligned itself with the Fourth District in Kirton. For those reasons and because the Fourth District certified a question providing us for any independent basis for jurisdiction, we do not address the certified conflict. 2. We answer the certified question as to pre-injury releases in commercial activities because that is what this case involves. Our decision in this case should not be read as limiting our reasoning only to pre-injury releases involving commercial activity; however, any discussion on pre-injury releases in - 2 -

Page 3 STATEMENT OF THE CASE AND FACTS The instant action arises from the decision by the Fourth District Court of Appeal in Fields v. Kirton, 961 So. 2d 1127 (Fla. 4th DCA 2007). The facts of the underlying action were detailed in the opinion of that court: Pursuant to a final judgment of dissolution of marriage, Bobby Jones was the primary residential parent for his fourteen year old son, Christopher. On May 10, 2003, the father took Christopher to Thunder Cross Motor Sports Park to ride his all terrain vehicle (ATV). To gain entry to the facility and be allowed to participate in riding the ATV, Bobby Jones, as Christopher's natural guardian, signed a release and waiver of liability, assumption of risk, and indemnity agreement. While attempting a particular jump, Christopher lost control of his ATV, causing himself to be ejected. Tragically, he hit the ground with the ATV landing on top of him. He got up, walked a short distance, then collapsed and died. Christopher's mother, Bette Jones, was unaware that the father was permitting their son to engage in this activity. She was also unaware that approximately one month prior to the accident causing Christopher's death, he had attempted the same jump, resulting in a fractured rib and mild concussion. Id. at 1128. Subsequently, Fields, as personal representative of the estate of Christopher Jones, filed suit for wrongful death against Spencer Kirton, Scott Corey Kirton, Dudley Kirton, and the Kirton Brother Lawn Service, Inc. (“the Kirtons”) as owners and operators of Thunder Cross Motor Sports. The amended complaint also named Dean Dyess as a defendant for his participation in the management of noncommercial activities would be dicta and it is for that reason we do not discuss the broader question posed by the Fifth District. - 3 -

Page 4 the park. The Kirtons then filed an answer and affirmative defenses to the amended complaint. In one of the affirmative defenses, the Kirtons argued that the claims raised by Fields were barred by the release and waiver executed by Mr. Jones on behalf of his son. The Kirtons thereafter filed a motion for summary judgment based on the release and waiver. 3 The trial court entered an order granting the Kirtons’ motion for summary judgment on the wrongful death claim, finding that there was no genuine issue of material fact because the release executed by Mr. Jones on behalf of his minor child, Christopher, barred the claim. On appeal, the Fourth District reversed the trial court’s order granting the motion for summary judgment. In doing so, the district court emphasized that the issue was not about a parent’s decision on what activities are appropriate for his or her minor child, which is properly left to the parent. Instead, the issue concerned the “decision to absolve the provider of an activity from liability for any form of negligence . . . [which] goes beyond the scope of determining which activity a 3. Mr. Jones filed an affidavit in support of the Kirtons’ motion for summary judgment. In that affidavit, he admitted that he willfully and with full understanding executed the release on behalf of his minor child at Thunder Cross Motor Sports Park. He also stated that he understood that it was his intention to waive the right to sue for the death of Christopher and to be banned by the other terms as set forth in the general release. He further stated that he understood that by signing the general release, he was forever discharging the Kirtons for any and all loss or damage and any claim or demands on account of injury to Christopher or his property or resulting in the death of Christopher arising out of or related to the events, whether caused by the negligence of the releasees or otherwise. - 4 -

Page 5 person feels is appropriate for their child.” Id. at 1129. This is because the “effect of the parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” As a result, the district court found that these rights could not be waived by the parents absent a basis in common law or statute. Id. at 1129-30. The district court found that there was no statutory scheme governing the issue of pre-injury releases signed by parents on behalf of minor children. Because there is no basis in common law or statute, the district court found that the courts do not have the authority to “judicially legislate that which necessarily must originate, if it is to be law, with the legislature.” Id. at 1130. Accordingly, the district court held that a parent could not bind a minor’s estate by the parent’s execution of a pre-injury release. In doing so, the Fourth District also certified the above question to be of great public importance and certified conflict with the Fifth District Court of Appeal’s decision in Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998). ANALYSIS The issue in this case is the enforceability of a pre-injury release executed by a parent on behalf of a minor child that binds a minor child’s estate and releases an activity provider from liability. Because the enforceability of the pre-injury release is a question of law arising from undisputed facts, the standard of review is de novo. See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (stating that - 5 -

Page 6 the standard of review for pure questions of law is de novo and no deference is given to the judgment of the lower courts). The Kirtons and the amicus curiae 4 supporting their position assert that a parent has a fundamental right to make decisions relating to the care of a minor child, and that right includes executing a pre-injury release on behalf of the minor child. The Kirtons also argue that enforcing the validity of a pre-injury release is consistent with Florida courts that have ruled that a parent has the prelitigation right to forego settlement awards in favor of pursuing a lawsuit without court approval or appointment of a guardian ad litem. On the other hand, Fields contends that pre-injury releases are invalid because neither the common law nor the Legislature has given parents the authority to waive these substantive rights of a minor child. Parental Authority and the State’s “Parens Patriae” Authority The enforceability of a pre-injury release concerns two compelling interests: that of the parents in raising their children and that of the state to protect children. Parental authority over decisions involving their minor children derives from the liberty interest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution. See Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion) 4. The American Motorcyclist Association. - 6 -

Page 7 (“In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”); see also Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996) (“The fundamental liberty interest in parenting is protected by both the Florida and federal constitutions. In Florida, it is specifically protected by our privacy provision.”). In fact, beginning with Meyer v. Nebraska, 262 U.S. 390 (1923), the United States Supreme Court has recognized that parents have a constitutionally protected interest in child rearing. In Troxel, the United States Supreme Court further pointed to a presumption that fit parents act in the best interests of their children. . . . Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. 530 U.S. at 68-69; see also Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998) (“Neither the legislature nor the courts may properly intervene in parental decision- making absent significant harm to the child threatened by or resulting from those decisions.”). However, these parental rights are not absolute and the state as parens patriae may, in certain situations, usurp parental control. In Global Travel - 7 -

Page 8 Marketing, Inc. v. Shea, 908 So. 2d 392, 399 (Fla. 2005), we explained the concept of parens patriae as applied in this State: "Parens patriae," which is Latin for "parent of his or her country," describes "the state in its capacity as provider of protection to those unable to care for themselves." Black's Law Dictionary 1144 (8th ed. 2004). The doctrine derives from the common-law concept of royal prerogative, recognized by American courts in the form of legislative prerogative. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). The United States Supreme Court, upholding a state child labor law in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), recognized the parens patriae power when it stated that although the "custody, care, and nurture of the child reside first in the parents, . . . the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor and in many other ways." Id. at 166, 64 S.Ct. 438 (footnotes omitted). In decisions over the past three decades, this Court has expressly relied on the state's parens patriae authority to protect children in two areas: (1) juvenile delinquency and dependency, see P.W.G. v. State, 702 So.2d 488, 491 (Fla.1997); State v. D.H., 340 So.2d 1163, 1166 (Fla.1976); In re Camm, 294 So.2d 318, 320 (Fla.1974); and (2) child custody and support. See Schutz v. Schutz, 581 So.2d 1290, 1293 (Fla.1991); Lamm v. Chapman, 413 So.2d 749, 753 (Fla.1982); Kern v. Kern, 333 So.2d 17, 19 (Fla.1976). Pervasive statutory schemes cover each of these areas. See generally ch. 39, Fla. Stat. (2004) ("Proceedings Relating to Children"); ch. 61, Fla. Stat. (2004) ("Dissolution of Marriage; Support; Custody"); ch. 984, Fla. Stat. (2004) ("Children and Families in Need of Services"); ch. 985, Fla. Stat. (2004) ("Delinquency; Interstate Compact on Juveniles"). Although there is no statutory scheme governing pre-injury releases, the Kirtons argue that a parent’s execution of a pre-injury release falls squarely within the parent’s authority to settle pursuant to section 744.301(2), Florida Statutes (2007). This statutory provision allows a parent, acting as the natural guardian of a - 8 -

Page 9 minor child, to settle the child’s claim for amounts up to $15,000. The Kirtons reason that because at the time a parent signs a pre-injury release, the claim is worth less than $15,000, the parent’s authority to execute a pre-injury release for a minor child falls within this section. Contrary to the Kirtons’ assertion, a parent’s authority to execute a pre-injury release on behalf of a minor child does not fall within the purview of section 744.301(2). Section 744.301, Florida Statutes (2007), applies to situations where a minor child already has a cause of action against another party. A pre-injury release is executed before any cause of action accrues and extinguishes any possible cause of action. The absence of a statute governing parental pre-injury releases demonstrates that the Legislature has not precluded the enforcement of such releases on behalf of a minor child. See Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 400 (Fla. 2005) (noting that the absence of a statutory scheme governing a parent’s agreement to binding arbitration on behalf of a minor child demonstrates that the Legislature has not precluded the enforcement of such agreements). However, we find that public policy concerns cannot allow parents to execute pre-injury releases on behalf of minor children. Florida Courts Although this is an issue of first impression for this Court, the district courts of Florida have addressed this matter, but their decisions have not been consistent. - 9 -

Page 10 In Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998), the minor child’s natural guardian filed suit against Iron Horse Saloon after the child was injured while operating a “pocket bike” on the Iron Horse premises. Id. at 591. The trial court granted Iron Horse’s motion to dismiss the complaint based on the pre-injury release executed by the minor child’s guardian. On appeal, the Fifth District affirmed the trial court’s order granting the motion, finding that the release was sufficient to bar the child’s claim. Id. at 591-92. However, the Fifth District’s decision was based on the finding that the release clearly and unequivocally relieved Iron Horse from liability. The district court did not focus on whether the guardian had authority to execute the pre-injury release on behalf of the minor. Id. In Gonzalez v. City of Coral Gables, 871 So. 2d 1067 (Fla. 3d DCA 2004), the mother signed a pre-injury release so that the minor child could participate in the Coral Gables Fire Rescue Explorer Program. After the child was injured, the mother filed suit and the trial court entered summary judgment in favor of the city based on the release the mother had signed. The Third District affirmed and found that the release barred the mother’s claim on behalf of the minor child. Id. at 1067- 68. The district court relied on a distinction the Fourth District made in Shea v. Global Travel Marketing, Inc., 870 So. 2d 20, 24 (Fla. 4th DCA 2003), quashed, 908 So. 2d 392 (Fla. 2005), between community and school-supported activities and commercial activities. The Third District found that because the explorer - 10 -

Page 11 program was a community-supported activity, the release was enforceable. Gonzalez, 871 So. 2d at 1067. 5 The Third District similarly found a parent’s execution of a pre-injury release on behalf of a minor child, for participation on the high school cheerleading squad, enforceable. See Krathen v. School Bd. of Monroe Cty., 972 So. 2d 887 (Fla. 3d DCA 2007). In Krathen, the Third District again discussed the Fourth District’s distinction in Shea between school-supported activities and commercial activities. Id. at 889. However, the Third District’s decision ultimately relied on this Court’s finding in Shea that “parents have the authority to make the decision whether to waive a child’s litigation rights in exchange for participation in an activity the parent feels is beneficial for the child.” Id. at 889 (citing Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 404 (Fla. 2005)). On the other hand, in Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112 (Fla. 5th DCA 2008), a case decided after Lantz, the Fifth District aligned itself with the Fourth District in the instant case and held that pre-injury releases are unenforceable as against public policy. Applegate involved a minor child who was injured while wakeboarding at a camp. In finding the parent’s execution of the pre-injury release unenforceable, the district court emphasized that its decision was 5. This Court in Shea found such a distinction arbitrary as applied to parents’ agreements to arbitrate but, in doing so, noted that it would not address this distinction as applied to pre-injury releases. Shea, 908 So. 2d at 403-04 & n.9. - 11 -

Page 12 limited to commercial enterprises because “[t]hey can insure against the risk of loss and include these costs in the price of participation.” Id. at 1115. In Global Travel Marketing, Inc. v. Shea, the father brought a wrongful death action against a safari operator for the death of his son who was mauled by hyenas while on the safari. 908 So. 2d at 395. Before the safari, the child’s mother signed a travel contract on behalf of herself and her son, which included a release of liability and an arbitration agreement provision. Based on the travel contract, Global Travel moved to stay the proceedings and compel arbitration of the father’s claim, which the trial court granted. Id. On appeal, the Fourth District reversed and found the arbitration clause unenforceable as to the child based on public policy grounds. Id. at 396. However, this Court quashed the Fourth District’s decision and found the arbitration agreement enforceable against the minor or minor’s estate in a tort action arising from the contract. 6 In doing so, this Court reasoned that if the courts required parents to seek court approval before entering 6. This Court noted at the beginning of its decision that the issue, as phrased by the Fourth District, only touched “upon binding arbitration and not on any broader contractual waiver of a tort claim brought on behalf of a minor.” Id. at 394. It also distinguished pre-injury releases from arbitration agreements: Whether a parent may waive his or her child’s substantive rights is a different question from whether a parent may agree that any dispute arising from the contract may be arbitrated rather than decided in a court of law.” Id. at 401. We emphasized this distinction by noting that the nature of the waiver, whether it concerns a waiver of a legal claim or right or a waiver of the forum in which the claim is presented, “is a crucial consideration in determining whether the state’s interest in protecting children renders the waiver unenforceable.” Id. at 403. - 12 -

Page 13 into travel contracts that included arbitration agreements, courts would be second guessing a fit parent’s decision. Id. at 404. The Court emphasized that parents who decide which activities their children can participate in may also decide on behalf of their children “to arbitrate a resulting tort claim if the risks of these activities are realized.” Id. A federal district court in Florida in two separate cases also found that pre- injury releases signed by parents on behalf of their minor children were invalid. See In re Royal Caribbean Cruises Ltd., 459 F. Supp. 2d 1275 (S.D. Fla. 2006); In re Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d 1168 (S.D. Fla. 2005) (where both the father and minor child were injured on a jet ski that was owned by Royal Caribbean on the island of Coco Cay, Bahamas). In both cases, the federal district court reviewed out-of-state precedent and found that in cases involving school- sponsored or community-run activities the courts upheld pre-injury releases, and in cases involving commercial activities the courts have found the releases unenforceable. In re Caribbean Cruises Ltd., 459 F. Supp. 2d at 1280; In re Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d at 1172. Out-of-State Precedent Other states and federal courts have also addressed the propriety of a parent or guardian’s execution of a pre-injury release on behalf of a minor child. In holding that pre-injury releases executed by parents on behalf of minor children are - 13 -

Page 14 unenforceable for participation in commercial activities, we are in agreement with the majority of other jurisdictions. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621 (S.D.W.Va. 2004) (finding a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act); Meyer v. Naperville Manner, Inc., 634 N.E.2d 411 (Ill. App. Ct. 1994) (finding a parental pre-injury waiver unenforceable in a situation where the minor child was injured after falling off a horse at a horseback riding school); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 (Me. 1979) (stating in dicta that a parent cannot release a child’s cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 550 N.W.2d 262, 263 (Mich. Ct. App. 1996) (“It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent’s child.”); Hojnowski v. Vans Skate Park, 901 A.2d 381, 383 (N.J. 2006) (finding that where a child was injured while skateboarding at a skate park facility, “a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility”); Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) (extending the law that a parent could not execute a pre-injury release on behalf of a minor child to a mentally handicapped twenty- - 14 -

Page 15 year-old student who was injured while training for the Special Olympics at a YMCA swimming pool); Munoz v. II Jaz, Inc., 863 S.W.2d 207 (Tex. App. 1993) (finding that giving parents the power to waive a child’s cause of action for personal injuries is against public policy to protect the interests of children); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding that “a parent does not have the authority to release a child’s claims before an injury,” where the child was injured as a result of falling off a horse provided by a commercial business); Hiett v. Lake Barcroft Cmty. Ass’n., 418 S.E.2d 894 (Va. 1992) (concluding that public policy prohibits the use of pre-injury waivers of liability for personal injury due to future acts of negligence, whether for minor children or adults); Scott v. Pac. W. Mountain Resort, 834 P.2d 6 (Wash. 1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child participating in a ski school is contrary to public policy). Although there are jurisdictions where pre-injury releases executed by parents on behalf of minor children have been found enforceable, we note that the only published decisions where they have been upheld involved a minor’s participation in school-run or community-sponsored activities. See, e.g., Hohe v. San Diego Unified Sch. Dist., 274 Cal. Rptr. 647 (Cal. Ct. App. 1990) (finding the pre-injury release executed by the father on behalf of the minor child enforceable against any claims resulting from the child’s participation in a school-sponsored - 15 -

Page 16 event); Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002) (holding that a parent has the authority to bind a minor child to a waiver of liability as a condition of a child’s participation in public school extracurricular sports activities); Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 205 (Ohio 1998) (concluding that a parent may bind a minor child to a release of volunteers and sponsors of a nonprofit sports activity from liability for negligence because the threat of liability would strongly deter “many individuals from volunteering for nonprofit organizations” because of the potential for substantial damage awards). While this particular case involves a commercial activity, we note that these jurisdictions that have upheld pre-injury releases have done so because community-run and school-sponsored type activities involve different policy considerations than those associated with commercial activities. As the Ohio Supreme Court explained in Zivich, in community and volunteer-run activities, the providers cannot afford to carry liability insurance because “volunteers offer their services without receiving any financial return.” 696 N.E.2d at 205. If pre-injury releases were invalidated, these volunteers would be faced with the threat of lawsuits and the potential for substantial damage awards, which could lead volunteers to decide that the risk is not worth the effort. This Case - 16 -

Page 17 The trial court in this case specifically relied on the case law that has upheld the enforceability of the pre-injury release executed by the father on behalf of the deceased minor child in granting a motion for summary judgment in favor of the Kirtons. In reversing the trial court’s order, the Fourth District first acknowledged that as part of the liberty interest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution, parents have a right to determine what activities may be appropriate for the minor child’s participation. However, the district court determined that the “decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child.” Fields, 961 So. 2d at 1129. We agree. Although parents undoubtedly have a fundamental right to make decisions concerning the care, custody, upbringing, and control of their children, Troxel, 530 U.S. at 67, the question of whether a parent should be allowed to waive a minor child’s future tort claims implicates wider public policy concerns. See Hojnowski, 901 A.2d at 390. While a parent’s decision to allow a minor child to participate in a particular activity is part of the parent’s fundamental right to raise a child, this does not equate with a conclusion that a parent has a fundamental right to execute a pre-injury release of a tortfeasor on behalf of a minor child. It cannot be presumed - 17 -

Page 18 that a parent who has decided to voluntarily risk a minor child’s physical well- being is acting in the child’s best interest. Furthermore, we find that there is injustice when a parent agrees to waive the tort claims of a minor child and deprive the child of the right to legal relief when the child is injured as a result of another party’s negligence. When a parent executes such a release and a child is injured, the provider of the activity escapes liability while the parent is left to deal with the financial burden of an injured child. If the parent cannot afford to bear that burden, the parties who suffer are the child, other family members, and the people of the State who will be called on to bear that financial burden. Therefore, when a parent decides to execute a pre-injury release on behalf of a minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider. Moreover, a “parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” Fields, 961 So. 2d at 1129-30. For this reason, the state must assert its role under parens patriae to protect the interests of the minor children. Business owners owe their patrons a duty of reasonable care and to maintain a safe environment for the activity they provide. See Hojnowski, 901 A.2d at 388. If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed. Id. Moreover, as a provider of the activity, a commercial business can - 18 -

Page 19 take precautions to ensure the child’s safety and insure itself when a minor child is injured while participating in the activity. On the other hand, a minor child cannot insure himself or herself against the risks involved in participating in that activity. As the New Jersey Supreme Court stated in Hojnowski: The operator of a commercial recreational enterprise can inspect the premises for unsafe conditions, train his or her employees with regard to the facility's proper operation, and regulate the types of activities permitted to occur. Such an operator also can obtain insurance and spread the costs of insurance among its customers. Children, on the other hand, are not in a position to discover hazardous conditions or insure against risks. Moreover, the expectation that a commercial facility will be reasonably safe to do that which is within the scope of the invitation, is especially important where the facility's patrons are minor children. If we were to permit waivers of liability, we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety. Id. (citations omitted). Based on these public policy concerns, it is clear that the pre-injury release executed by Bobby Jones on behalf of his now deceased son was unenforceable because it prevented the minor’s estate from bringing a cause of action against the commercial establishment that provided the activity which resulted in the minor’s death. CONCLUSION For the reasons set forth above, we hold that a pre-injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the - 19 -

Page 20 minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity. Accordingly, we answer the certified question in the negative, approve the decision of the Fourth District, disapprove the Fifth District’s decision in Lantz, and remand for proceedings consistent with this opinion. It is so ordered. ANSTEAD, PARIENTE, and LEWIS, JJ., concur. ANSTEAD, J., specially concurs with an opinion. PARIENTE, J., concurs with an opinion. WELLS, J., dissents with an opinion. CANADY and POLSTON, JJ., did not participate. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. ANSTEAD, J., specially concurring. I concur in the majority opinion and write separately to emphasize that our holding is narrowly directed at those commercial operators who wrongfully and negligently cause injury to a child but seek to be relieved of liability for their misconduct by securing a pre-activity release from the child’s parent. Of course, under today’s holding commercial operators who properly conduct their operations and cannot be demonstrated to have acted negligently will continue to be free of liability. On the other hand, Florida’s children and parents need not worry, after today’s decision, that careless commercial operators may be immunized from their carelessness by the presence of an exculpatory clause in a ticket for admission. - 20 -

Page 21 Finally, I also find the articulation of the policy considerations supporting today’s decision set out in Judge Torpy’s opinion for the Fifth District in Applegate to be particularly instructive and persuasive: Exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006). Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy. Id.; Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973); Restatement (Second) of Torts § 496B. Appellants concede that the contract at issue here is unambiguous but urge that the general rule should give way to an overriding public policy of protecting children from damages caused by negligently imposed injuries. This argument finds considerable support in the decisional law across the country. We are persuaded by some of the reasoning advanced by these authorities and also offer our own rationale for our holding. Indisputably, Florida’s public policy manifests a strong intent to protect children from harm. As parens patriae, the state’s authority is broader than that of a parent’s and may be invoked to limit parental authority when necessary to protect children. Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 399 (Fla. 2005). The expression of that policy most relevant here is the legislative limitation on parental authority to settle post-injury claims contained in section 744.301(2), Florida Statutes (2007). By requiring judicial approval of settlements over $15,000, the legislature has manifested a policy of protecting children from parental imprudence in the compromise of their claims for injury. Because parents’ legal duty to support their children ends at or near the age of majority, the potential societal burden of an imprudent settlement justifies judicial oversight of the settlement contract. The case of a pre-injury exculpatory clause may be distinguished from a post-injury settlement in one respect. In a pre- injury situation, there is no risk that financial pressure will induce - 21 -

Page 22 parental imprudence. Instead, the parents’ motivation is the potential benefit to the child derived from the child’s participation in the activity. Theoretically, the prudent parent can weigh this benefit against the potential consequence of a negligently caused injury and determine whether it is in the child’s best interest to execute an exculpatory clause and permit the activity. Motivations aside, however, the consequence of an imprudent decision is the same as in the post-injury context: a child will suffer injury for which society might ultimately bear the burden. Thus, the parents’ interest is not necessarily consonant with those of society and the child. Although this potential societal cost is arguably a justification to invalidate all pre-injury exculpatory clauses, we discern significant reasons for a distinction when a child is the subject. A consenting adult has the ability to avoid potential injury by exercising personal caution and mitigate the impact of future economic loss by purchasing disability and health insurance policies. Conversely, children tend to throw caution to the wind during risky activities, resulting in a decreased chance of avoiding injury caused by the negligence of others. More importantly, children have no ability to indemnify themselves for future economic losses like their adult counterparts, making them especially vulnerable after the parents’ support obligation ends. As parens patriae, the state also has an interest in protecting children from the non-economic consequences of negligently-caused injury. A policy that enforces exculpatory clauses fosters an increased risk of injury through carelessness. For these reasons, although the scales of public policy might tip in favor of the enforcement of exculpatory contracts involving consenting adults, we think they tip the other way when children are the subject. We emphasize that our holding is limited to commercial enterprises. They can insure against the risk of loss and include these costs in the price of participation. Applegate, 974 So. 2d at 1114-15 (footnote and citation omitted). - 22 -

Page 23 PARIENTE, J., concurring. I fully concur with the majority’s conclusion that the pre-injury release signed by the father on behalf of his fourteen-year-old son, executed in order to gain entry to the facility and be allowed to participate in riding the ATV in the Thunder Cross Motor Sports Park,” is invalid. The owners and operators of the sports park, the Kirtons, raised the execution of this release as a complete defense to the wrongful death action brought on behalf of the estate. I write to emphasize several points. First, as pointed out by the Fourth District, “[t]here is no basis in common law for a parent to enter into a compromise or settlement of a child’s claim, or to waive substantive rights of the child without court approval.” Fields, 961 So. 2d at 1130. Second, the release in this case was all-encompassing, as it covered not just injuries occurring as a result of the activity of ATV riding, which itself could be considered inherently dangerous, but all negligent acts. The allegations of the complaint in this case, which we must accept as true, asserted in pertinent part that the ATV fourteen-year-old Christopher Jones was “racing and jumping” on “the course set up and maintained by Defendants” was recommended “only for use by those over the age of 16” by the manufacturer. Significantly, the allegations also asserted that “the subject four wheel all terrain vehicle was not designed by the manufacturer or recommended for racing or jumping on a course such as the - 23 -

Page 24 course constructed and maintained by Defendants and/or Defendants’ agents and employees.” Moreover, the amended complaint alleged that the Kirtons had prior knowledge of Christopher Jones’s limited experience based on a serious injury he sustained on the same course with the same ATV approximately one month before: Defendants and/or their agents and employees knew or should have known that a fourteen year old with limited experience as a rider, such as CHRISTOPHER JONES, should not have been permitted to operate the subject 350 cc four wheel all terrain vehicle in the manner it was being operated by him on the course constructed and maintained by THUNDER CROSS MOTOR SPORTS PARK on May 10, 2003. This is particularly the case given the fact that the last time CHRISTOPHER JONES operated the subject 350 cc four wheel all terrain vehicle he operated it in the same manner and “missed the jump” while riding on the identical course constructed and maintained by THUNDER CROSS MOTOR SPORTS PARK on April 6, 2003. On that date he was seriously injured such that he was removed from the Defendant’s property by Fire Rescue personnel and was transported to the hospital for treatment. The amended complaint further alleged that the negligent design of the course and the failure to have a “flag man” to alert riders to the dangers of the course and to prevent the fatal injuries directly caused or substantially contributed to the death of Christopher Jones. As explained in the amended complaint: On May 10, 2003 while attempting to jump on Defendants’ course which was negligently constructed and/or maintained by Defendants through their agents and their employees, CHRISTOPHER JONES missed the jump” so that he came up short and did not clear the jump. The front tires of the four wheel all terrain vehicle he was operating hit the ground first and CHRISTOPHER JONES bounced - 24 -

Page 25 over the handlebars, flipped off the four-wheeler to the right and the four-wheeler went to the left and then came back directly at him. Although there was supposed to be a flag man stationed at the jump to alert riders of dangers on the course and to assist in rendering assistance to injured riders such as CHRISTOPHER JONES, there was no flag man stationed at the jump that CHRISTOPHER JONES was attempting to navigate when the accident occurred on May 10, 2003. Because the four-wheeler came back at CHRISTOPHER JONES after he was thrown off the vehicle, had a flag man been close enough to the jump, he would have been able to remove CHRISTOPHER JONES from harm’s way before the vehicle hit and killed him. In distinguishing between risks inherent in the activity and separate acts of negligence, the Fourth District explained: The decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child. The decision to allow a minor to participate in an activity is properly left to the parents or natural guardian. For instance, the decision to allow one’s child to engage in scuba diving or sky diving involves the acceptance of certain risks inherent in the activity. This does not contemplate that a dive instructor will permit or encourage diving at depths beyond safe recreational limits, or that the pilot of the plane on a sky diving venture is intoxicated or otherwise impaired, both situations which could cause injury to the minor. Id. at 1129. I agree with this distinction. Although the father accepted the risks inherent in ATV riding by allowing his son to participate in the activity, his acceptance did not contemplate that the defendants would act negligently as described in the amended complaint. - 25 -

Page 26 Finally, I write to emphasize that this Court limits its decision to activities provided by commercial establishments because those were the facts presented by this case. However, I do not agree with the reasoning of those cases cited by the majority that have found that all releases from liability for noncommercial activities are automatically valid. To me there is an important distinction between a release to allow a child to participate in school activities, such as cheerleading or football, which could be considered inherently dangerous, and a blanket release that absolves the sponsor of liability from all negligent acts. As with commercial activities, when a parent allows his or her child to participate in an inherently dangerous noncommercial activity, his or her acceptance does not contemplate that the activity provider will act negligently. WELLS, J., dissenting. While I agree that it would be a good policy to limit parental pre-injury releases of minors’ claims for injuries or death arising out of dangerous activities operated by commercial entities, until today this Court has never held that such a pre-injury release knowingly executed by a parent is unenforceable. Nor until this case was decided by the Fourth District Court of Appeal, had a district court of appeal held such a pre-injury release unenforceable. Furthermore, when the parent in this case signed such a release, the Legislature had not prohibited or regulated - 26 -

Page 27 pre-injury parental releases of a minor’s claims, though the Legislature had legislated as to post-injury parental releases of a minor’s claims. See §§ 744.301, 744.387, Fla. Stat. (2003). The Legislature has not subsequently acted to regulate pre-injury releases. Thus, at the time of this parental agreement which permitted the minor to participate in this activity, there was no law in Florida, either statutory or court-declared, enunciating the public policy that the majority now determines makes this agreement unenforceable. Absent the majority’s decision that such an agreement is against public policy, the agreement would without question be enforceable. See Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973) (explaining that exculpatory clauses are generally valid and enforceable absent public policy requiring nonenforcement). I believe that it is fundamentally unfair to now declare a new public policy and then apply it to the defendants in this case. Moreover, I conclude that the majority opinion highlights why the decision as to the enforceability of a parent’s pre-injury release of a minor’s claim is and should be a legislative decision. The majority opinion creates many questions and provides few answers. The answers will have to be gleaned from further costly case-by-case litigation, and if the particular circumstances of other releases are found to be against the declared public policy, the result will be additional after- the-fact determinations of liability without sufficient notice to the parties involved. - 27 -

Page 28 The majority opinion draws a distinction between “commercial establishments” and “community based or school activities,” which is precisely the distinction that this Court’s majority criticized in quashing the Fourth District Court of Appeal’s decision in Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005). The Court expressly stated: [T]he line dividing commonplace activities from commercial travel opportunities is far from clear, given that some commonplace school or community activities might also involve commercial travel. The Fourth District decision might prevent arbitration of claims of minors arising from their parents’ decisions in individually authorizing activities that involve commercial travel, but not from the decisions of school authorities in arranging for the same activity. We see no basis in fact or law for this distinction, nor a reliable standard by which to apply it without making value judgments as to the underlying activity that the parent has deemed appropriate for the child to engage in. Moreover, the alternative of requiring parents to seek court approval before entering into commercial travel contracts that include arbitration agreements would place courts in a position of second guessing the decision-making of a fit parent. Id. at 404 (footnote omitted). In reaching our decision, we relied upon and quoted from Troxel v. Granville, 530 U.S. 57, 68-69 (2000) (“Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”). I recognize that in Shea the majority said in a footnote that it was not addressing the distinction between commercial and community-based and school- - 28 -

Page 29 related activities as applied to pre-injury waivers of liability. See 908 So. 2d at 395 n.3. However, in this case, the majority does not have any more of a reasonable basis in law or fact for this distinction, nor a reliable standard by which to apply it without making value judgments as to the underlying activity that the parent has deemed appropriate for the child to engage in” than the majority had in Shea. As found in Shea, the line dividing commercial activities from community-based and school-related activities is far from clear. For example, is a Boy Scout or Girl Scout, YMCA, or church camp a commercial establishment or a community-based activity? Is a band trip to participate in the Macy’s Thanksgiving Day parade a school or commercial activity? What definition of commercial is to be applied? The importance of this issue cannot be overstated because it affects so many youth activities and involves so much monetary exposure. Bands, cheerleading squads, sports teams, church choirs, and other groups that often charge for their activities and performances will not know whether they are a commercial activity because of the fees and ticket sales. How can these groups carry on their activities that are so needed by youth if the groups face exposure to large damage claims either by paying defense costs or damages? Insuring against such claims is not a realistic answer for many activity providers because insurance costs deplete already very scarce resources. The majority’s decision seems just as likely to force - 29 -

Page 30 small-scale activity providers out of business as it is to encourage such providers to obtain insurance coverage. If pre-injury releases are to be banned or regulated, it should be done by the Legislature so that a statute can set universally applicable standards and definitions. When the Legislature acts, all are given advance notice before a minor’s participation in an activity as to what is regulated and as to whether a pre- injury release is enforceable. In contrast, the majority’s present opinion will predictably create extensive and expensive litigation attempting to sort out the bounds of commercial activities on a case-by-case basis. The majority opinion also does not explain the reason why after years of not finding pre-injury releases to be against public policy, it today finds a public policy reason to rule pre-injury releases unenforceable when the Legislature has not done so. Again, the present majority opinion conflicts with the reasoning expressed just three years ago in Shea: Further, the lack of a statutory requirement for court involvement in pre-injury arbitration agreements provides a basis for treating these agreements differently from settlements of lawsuits involving minors’ claims, for which appointment of a guardian ad litem and court approval are necessary under certain circumstances pursuant to sections 744.301 and 744.387, Florida Statutes (2004). The Legislature has chosen to authorize court protection of children’s interests as to extant causes of action, but has not exercised its prerogative as parens patriae to prohibit arbitration of those claims. - 30 -

Page 31 908 So. 2d at 403. Similarly, though the Legislature has acted in respect to the settlement of accrued claims, the Legislature has not acted in respect to pre-injury releases. There can be no question that the Legislature adopts legislation when it concludes that the interests of minors are best served by statutory protection. The Legislature has chosen to act in respect to many matters in which the Legislature concluded that minors should have the protection of a guardian ad litem. See Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Petersen, 920 So. 2d 75, 78 (Fla. 1st DCA 2006) (listing circumstances in which trial court may or must appoint a guardian ad litem: § 39.402(8)(c) (shelter hearings); § 39.807(2)(a) (termination of parental rights proceedings); § 73.021(4) (eminent domain proceedings); 390.01115(4)(a) (termination of pregnancy without parental notification); 731.303(4) (probate proceedings); § 743.09(3) (contract for artistic or creative services or professional sport contract); § 744.446 (parental conflict of interests with minor child), Florida Statutes (2004)). Thus, as we did in respect to arbitration agreements, it is reasonable to conclude that the Legislature has chosen not to act in respect to pre-injury releases. The Legislature may have chosen not to act on the issue of pre-injury releases out of respect for the authority of parents to make choices involving their children, which again we recognized in Shea: Parents’ authority under the Fourteenth Amendment and article I, section 23 [of the Florida Constitution] encompasses decisions on - 31 -

Page 32 the activities appropriate for their childrenwhether they be academically or socially focused pursuits, physically rigorous activities such as football, adventure sports such as skiing, horseback riding, or mountain climbing, or, as in this case, an adventure vacation in a game reserve. Parents who choose to allow their children to engage in these activities may also legitimately elect on their children’s behalf to arbitrate a resulting tort claim if the risks of these activities is realized. 908 So. 2d at 404. Without the ability to execute pre-injury releases, a parent may find that his or her minor child will not be able to participate in activities because the operators of the activities will not accept the financial exposure of the minor’s participation, regardless of whether the parent would decide that the benefit to the minor outweighed the risk of injury. The majority opinion raises other serious questions. If a parent does not have the authority to execute a pre-injury release, does a parent have the authority to execute an enforceable consent for medical treatment on behalf of a minor child? Florida courts have long recognized the authority of the parent to execute an enforceable consent for medical treatment on behalf of a minor child, see Ritz v. Fla. Patient’s Comp. Fund, 436 So. 2d 987, 989 (Fla. 5th DCA 1983) (holding that parent could consent to medical treatment on behalf of incompetent child), but medical consents and pre-injury releases have substantial similarities. Plainly, without the giving of consent, health care providers in most instances will not provide medical services. The majority’s decision also calls into question whether - 32 -

Page 33 a parent has authority to turn down an offer of settlement for an injury to a minor as was upheld in Petersen. In sum, I conclude that the questions presented by this case demonstrate a need for the Court to exercise judicial restraint, recognize that the Legislature is the policy-making branch of government, and defer to the Legislature by respecting the Legislature’s non-action to date.

Booth v. Santa Barbara Biplane Tours, LLC (2008) 158 Cal.App.4th 1173

2008-12-24T14:54:00.000-08:00

Another interesting release case in California. In Booth (below) the court distinguished City of Santa Barbara v. Superior Court and held that had plaintiffs sued for gross negligence or recklessness, the release would not be a bar to recovery.

[No. B193417. Second Dist., Div. Six. Jan. 14, 2008.]

BLUE BOOTH et al., Plaintiffs and Appellants, v. SANTA BARBARA BIPLANE Tours, LLC et al., Defendants and Respondents.

(Superior Court of Santa Barbara County, No. 1169333, Thomas P. Anderle, Judge.)

(Opinion by Yegan, J., with Gilbert, P.J., and Coffee, J., concurring.)

OPINION

YEGAN, J.-

Blue Booth and his daughter Cassey Booth appeal from a summary judgment granted in favor of respondents Santa Barbara Biplane Tours, et al, on their complaint for personal injuries. The trial court ruled that the action was barred by a release and waiver of liability agreement. We agree and affirm.

Facts and Procedural History

In May of 2005, appellants went on an aerial sightseeing tour of Santa Barbara. They sustained injuries when respondents' plane lost power and [158 Cal.App.4th 1176] made an emergency landing. Appellants signed a release and waiver of liability about 30 minutes before boarding the plane. Prior to the emergency landing, the pilot had made several flights earlier in the day, all without incident.

Appellants sued alleging simple negligence and breach of implied warranty. The complaint stated that respondents acted "as a common carrier on an advertised and promoted sight-seeing tour around Santa Barbara. The contract of carriage was entered into and, among other things, carried an implied warranty of airworthiness of the aircraft, as well as suitability for the use and purposes intended . . . ."

Respondents moved for summary judgment based on the following undisputed facts:

Respondents owned a Waco biplane and provided aerial sightseeing tours by a licensed pilot.

Customers were required to sign a "High Risk Activity Release, Waiver and Assumption of Risk Agreement" before riding in the plane. The release stated in pertinent part that "I UNDERSTAND THAT PARTICIPATION IN BIPLANE OR OTHER AIRCRAFT TOURS IS A HIGH RISK ACTIVITY AND THAT SERIOUS INJURY OR DEATH MAY OCCUR. [¶] 8. I VOLUNTARILY ASSUME ALL RISK, KNOWN AND UNKNOWN, OF INJURIES, HOWEVER CAUSED, EVEN IF CAUSED IN WHOLE OR IN PART BY THE ACTION, INACTION, OR NEGLIGENCE OF THE RELEASED PARTIES TO THE FULLEST EXTENT ALLOWED BY LAW."

Common Carrier Liability

[1] Civil Code section 2168 provides: "Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry." fn. 1 The statute has been broadly construed to include amusement rides, ski lifts, planes and trains, and guided tour mule rides. (Simon v. Walt Disney World Co. (2004) 114 Cal.App.4th 1162, 1168; Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1506-1508; McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal.App.2d 489, 492-493.) [158 Cal.App.4th 1177] [2] A common carrier, "by special contract," may limit its liability (§ 2174) but not for gross negligence. (§ 2175: "A common carrier cannot be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants.".) "The prohibition of the common law against a carrier limiting his liability for any kind of negligence is declared in this state by section 2175 only to apply to the limitation for gross negligence." (Donlon Bros. v. Southern Pacific Co. (1907) 151 Cal. 763, 770.)

[3] The trial court ruled that the release was a special contract within the meaning of section 2174. It did not err.

Appellants argue that respondents violated Federal Aviation Regulations by operating an unairworthy plane. But that is not what is alleged. The complaint only alleges simple negligence and breach of implied warranty. It does not allege the violation of any law or regulation. On a motion for summary judgment, the pleadings define the issues. (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119.) Appellants may not interject new theories of liability on appeal. (Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223.)

In their opposition papers, appellants admitted that the pilot and respondents were not cited for doing anything wrong and that respondents had no reason to believe that the aircraft was not airworthy. Like the trial court, we must utilize common sense in drawing inferences from the undisputed facts. (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1615.)

Appellants also argue that the release was hurriedly signed, but it is undisputed that they signed the release 30 minutes before the flight. There was no surprise element. Appellants were told that it was "a standard release or standard insurance form" and that their money would refunded if they decided not to sign the release.

Appellants' opposition papers also include a National Transportation Safety Board (NTSB) accident report discussing engine maintenance problems. The trial court struck the report because it was hearsay and lacked foundation. Appellants do not challenge the evidentiary ruling on appeal and have waived [158 Cal.App.4th 1178] the issue. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.) We are precluded from considering the accident report and deny appellants' request to take judicial notice of it.

Tunkl - Public Interest Analysis

[4] Appellants cite section 1668 for the principle that contracts exculpating a person from liability for violation of law are void as a matter of public policy. The argument fails because the complaint does not allege that respondents violated a law or regulation. More importantly, section 2175 permits exculpatory agreements affecting the liability of a common carrier. (Code Civ. Proc., § 1859 [specific statute controls over general statute]; Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253,. 1260.)

Relying on City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, appellants argue that an exculpatory contract releasing a defendant from liability is void on public policy grounds. (Id., at p.763.) There, a 14 year old developmentally disabled girl drowned at a city swim program. Our Supreme Court held that a release exculpating city from liability for "any negligent act" did not extend to acts of gross negligence. (Id., at p. 750.) Citing Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl), the court acknowledged that a release of liability for future ordinary negligence may be "void on public policy grounds other than those set forth in section 1668." (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 763.) The court stated that "Tunkl's public interest analysis focuses upon the overall transaction - with special emphasis upon the importance of the underlying service or program, and the relative bargaining relationship of the parties. . . ." (Ibid., at p. 763.)

[5] Pursuant to Tunkl, the question of whether a general release "affects the public interest, and is thus void as a matter of public policy, requires analysis of the transaction giving rise to the contract -- not the allegedly negligent conduct by the party invoking the release. [Citation.]" (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 670.) In Tunkl, a hospital's use of a general release to exculpate itself from liability for the negligent treatment of patients violated public policy because the hospital performed "a service of great importance to the public, which is often a matter of practical necessity for some members of the public." (Tunkl, supra, "60 Cal.2d at p. 99.) [158 Cal.App.4th 1179]

[6] Recreational activities such as snow skiing or parachute jumping are not essential services or necessities affecting the public within the meaning of Tunkl. (Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th at pp. 1259-1260, Paralift, Inc. v. Superior Court (Levin) (1993) 23 Cal.App.4th 748, 756-758 [release for parachuting activities].) To that list, we add aerial sightseeing tours. "[N]othing in Civil Code sections 2174 and 2175 prevented [respondents] from negotiating a release from liability for ordinary negligence." (Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th at p. 1258.)

Pursuant to Tunkl, common carriers provide an important public service. (Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th at p. 1269; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1734; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1467.) But not all common carriers are the same. Respondents provide aerial sightseeing tours of Santa Barbara. They are not an air carrier transporting passengers "for compensation between points within this state." (Pub. Utilities Code, § 2714.) Nor is sightseeing a public utility function. (See e.g., City of St. Helena v. Pubic Utilities Com. (2004) 119 Cal.App.4th 793, 803 [Wine Train sightseeing excursions not a common carrier service].)

The trial court ruled that the release "is very clearly worded, and is not ambiguous in conveying its purpose and intent. Plaintiffs have cited no authority which would compel the court to reach the conclusion that Congress has preempted the area of releases of liability for airline or airplane passengers . . . . The court further does not believe that the contract at issue was in the public interest, within the meaning of Tunkl v. Regents of California (1963) 60 Cal.2d 92 and declines to invalidate the release on that ground. Defendants do not provide an essential service, and there was no obligation or compulsion for plaintiffs to go on a sightseeing flight over Santa Barbara."

[7] We concur with the trial court's well reasoned ruling. There are many ways to go on a sightseeing tour, whether it be by plane, hot air balloon, boat, or bus. Appellant cites no authority that a recreational airplane ride is an essential service affecting the public interest that comes within the purview of Tunkl. Whether the activity affects the public interest is objectively determined. (Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134, 151.) Appellants' "particular interest in the activity has no bearing on whether the 'public interest' is involved. The issue is tested objectively, by the activities important to the general public, [158 Cal.App.4th 1180] not by its subjective importance to the particular plaintiff. [Citation.]" (Haning & Flahavan, Cal. Practice Guide: Personal Injury (Rutter 2006) § 3:240.17, pp. 3-186 to 3-187.).

Federal Preemption -- Federal Standard of Care v. State Remedy

Citing Montalvo v. Spirit Airlines (9th Cir. 2007) ___ F.3d __ [2007 DJDAR 16802] (Montalvo), appellants claim that Congress has preempted the field of air safety which requires reversal of the summary judgment order. We disagree that reversal is required. In Montalvo, plaintiffs sued for negligence pursuant to California common law, based on the theory that airlines breached a duty of care in not warning about the risk of deep vein thrombosis (DVT) on long flights. The airlines were granted summary judgment because they were under no obligation to warn of DVT absent a federal mandate to do so.

The Montalvo court held that Congress, in enacting of the Federal Aviation Act of 1958 [FAA) [49 U.S.C. § 40103 et seq.), had preempted the entire field of air safety. fn. 2 (Id., at p. __ [2007 DJDAR at p. 16804].) "[I]t is clear that Congress intended to invest the Administrator of the Federal Aviation Administration with the authority to enact exclusive air safety standards. Moreover, the Administrator has chosen to exercise this authority by issuing such pervasive regulations that we can infer a preemptive intent to displace all state law on the subject of air safety. [Citation.] These regulations codified in Title 14 of the Code of Federal Regulations, cover, inter alia, airworthiness standards, crew certification and medical standards, and aircraft operating requirements. The regulations also include a general federal standard of care for aircraft operators, requiring that "no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.' 14 C.F.R. § 91.13(a). (2003.)" (Id., at p. __ [2007 DJDAR at pp. 16806-16807], emphasis added.)

[8] Based on Montalvo, appellants now argue that air safety is a strict liability tort because passenger injuries can always be attributed to someone's "carelessness." But that is not what Montalvo holds. Because the FAA preempts the field of air safety, a state may not expand the federal standards by imposing a common law duty of care. In Montalvo the failure to warn passengers of the risk of DVT injuries may have been careless, but no duty of care was breached. [158 Cal.App.4th 1181]

Like the plaintiffs in Montalvo, appellants may not reinterpret FAA regulations to create a "strict liability" standard of care. Federal courts have held that 14 C.F.R. section 91.13(a) is reserved for serious misconduct where the potential for harm is incontestably high. (Allen v. American Airlines (E.D. Penn. 2003) 301 F.Supp.2d 370, 376 [falling luggage not "careless" conduct].) Even Abdullah v. American Airlines, Inc. (3rd Cir. 1999) 181 F.3d 363, the Third Circuit case appellants cite to support their general concept that airline operation must either be careless nor reckless, seems to recognize that § 91.13(a) should be reserved only for serious, more flagrant pilot misconduct. (Allen v. American Airlines, supra, 301 F.Supp.2d at p. 377.)

The State Remedy

[9] Although federal law sets the standards for aviation safety, state law causes of action may be invoked where the violation of those federal standards result in personal injury or death. Under the FAA there is no federal remedy for personal injury or death caused by the operation of aircraft. (Abdullah v. American Airlines, Inc., supra, 181 F.3d at p. 375.) The FAA has a savings clause which provides that "[a] remedy under this part is in addition to any other remedies provided by law."] (49 U.SC. § 40120(c); see Abdullah v. American Airlines, Inc., supra, 181 F.3d at pp. 375-376.) "[I]n spite of the fact that federal law may have completely occupied the field of regulation of aircraft safety" remedies that a party may have under state law are not necessarily abridged by the FAA. (Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 549.) Because state law causes of action may be invoked for personal injury resulting from negligence in aviation, state law defenses thereto may also be invoked.

Had appellants sued for gross negligence or recklessness, the release would not be a bar to recovery. (§ 2175; City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 750-751.) But the complaint alleges simple negligence and breach of implied warranty. These causes of action were waived by the preflight release of liability. (See e.g., Olsen v. Breeze, Inc.(1996) 48 Cal.App.4th 608, 616 [general release barred personal injury claim allegedly caused by defendant's negligence and breach of warranty]; Delta Air Lines, Inc v. Douglas Aircraft Company, Inc. (1965) 238 Cal.App.2d 95, 101 [exculpatory clause in contract for sale of aircraft covered tort liability] Harrell v. Champlain Enterprises, Inc. (N.Y.App. 1994) 200 A.D.2d 290, 191 [release barred wrongful death action and not preempted by the Airline Deregulation Act [49 U.S.C. App. § 1305(a)(1) governing rates, routes or services of air carrier].) [158 Cal.App.4th 1182]

The judgment is affirmed. Respondents are awarded costs on appeal.

Gilbert, P.J., and Coffee, J., concurred.

FN 1. Unless otherwise stated, all further statutory references are to the Civil Code.

FN 2. "There are two types of implied preemption: conflict preemption and field preemption. Courts may find conflict preemption when a state law actually conflicts with federal law or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the federal law. [Citations.] . . . [F]ield preemption occurs when Congress indicates in some manner an intent to occupy a given field to the exclusion of state law. [Citation.]" (Montalvo, supra, ___ F.3d at p. __ [2007 DJDAR at p. 16805].)

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2008-12-24T12:32:00.000-08:00

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California Proposition 65 - Safe Drinking Water and Toxic Enforcement Act of 1986

2008-12-24T12:06:00.000-08:00

This text contains new statutory language added by Assembly Bill 1756 (Committee on Budget, Chapter 228, Statutes of 2003) which was signed into law by Governor Gray Davis on August 9, 2003. The new language took effect on August 11, 2003.

To see a current list of all the chemicals banned under Proposition 65 see this link.

25249.5. Prohibition On Contaminating Drinking Water With Chemicals Known to Cause Cancer or Reproductive Toxicity. No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water, notwithstanding any other provision or authorization of law except as provided in Section 25249.9.>

25249.6. Required Warning Before Exposure To Chemicals Known to Cause Cancer Or Reproductive Toxicity. No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.

25249.7. Enforcement.
(a) Any person that violates or threatens to violate Section 25249.5 or 25249.6 may be enjoined in any court of competent jurisdiction.
(b) (1) Any person who has violated Section 25249.5 or 25249.6 shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2500) per day for each violation in addition to any other penalty established by law. That civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction.
(2) In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:

(A) The nature and extent of the violation.
(B) The number of, and severity of, the violations.
(C) The economic effect of the penalty on the violator.
(D) Whether the violator took good faith measures to comply with this chapter and the time these measures were taken.
(E) The willfulness of the violator's misconduct.
(F) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
(G) Any other factor that justice may require.

(c) Actions pursuant to this section may be brought by the Attorney General in the name of the people of the State of California, by any district attorney, by any city attorney of a city having a population in excess of 750,000, or, with the consent of the district attorney, by a city prosecutor in any city or city and county having a full-time city prosecutor, or as provided in subdivision (d).
(d) Actions pursuant to this section may be brought by any person in the public interest if both of the following requirements are met:
(1) The private action is commenced more than 60 days from the date that the person has given notice of an alleged violation of Section 25249.5 or 25249.6 that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator. If the notice alleges a violation of Section 25249.6, the notice of the alleged violation shall include a certificate of merit executed by the attorney for the noticing party, or by the noticing party, if the noticing party is not represented by an attorney. The certificate of merit shall state that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action. Factual information sufficient to establish the basis of the certificate of merit, including the information identified in paragraph (2) of subdivision (h), shall be attached to the certificate of merit that is served on the Attorney General.
(2) Neither the Attorney General, any district attorney, any city attorney nor any prosecutor has commenced and is diligently prosecuting an action against the violation.
(e) Any person bringing an action in the public interest pursuant to subdivision (d) and any person filing any action in which a violation of this chapter is alleged shall notify the Attorney General that the action has been filed. Neither this subdivision nor the procedures provided in subdivisions (f) to (j), inclusive, shall affect the requirements imposed by the statute or a court decision in existence on January 1, 2002 concerning whether any person filing any action in which a violation of this chapter is alleged is required to comply with the requirements of subdivision (d).
(f) (1) Any person bringing an action in the public interest pursuant to subdivision (d), any person filing any action in which a violation of this chapter is alleged, or any private person settling any violation of this chapter alleged in a notice given pursuant to paragraph (1) of subdivision (d), shall, after the action or violation is either subject to a settlement or to a judgment, submit to the Attorney General a reporting form that includes the results of that settlement or judgment and the final disposition of the case, even if dismissed. At the time of the filing of any judgment pursuant to an action brought in the public interest pursuant to subdivision (d), or any action brought by a private person in which a violation of this chapter is alleged, the plaintiff shall file an affidavit verifying that the report required by this subdivision has been accurately completed and submitted to the Attorney General.
(2) Any person bringing an action in the public interest pursuant to subdivision (d) or any private person bringing an action in which a violation of this chapter is alleged, shall, after the action is either subject to a settlement, with or without court approval, or to a judgment, submit to the Attorney General a report that includes information on any corrective action being taken as a part of the settlement or resolution of the action.
(3) The Attorney General shall develop a reporting form that specifies the information that shall be reported, including, but not limited to, for purposes of subdivision (e), the date the action was filed, the nature of the relief sought, and for purposes of this subdivision, the amount of the settlement or civil penalty assessed, other financial terms of the settlement, and any other information the Attorney General deems appropriate.
(4) If there is a settlement of an action brought by a person in the public interest under subdivision (d), the plaintiff shall submit the settlement, other than a voluntary dismissal in which no consideration is received from the defendant, to the court for approval upon noticed motion, and the court may approve the settlement only if the court makes all of the following findings:

(A) Any warning that is required by the settlement complies with this chapter.
(B) Any award of attorney's fees is reasonable under California law.
(C) Any penalty amount is reasonable based on the criteria set forth in paragraph (2) of subdivision (b).

(5) The plaintiff subject to paragraph (4) has the burden of producing evidence sufficient to sustain each required finding. The plaintiff shall serve the motion and all supporting papers on the Attorney General, who may appear and participate in any proceeding without intervening in the case.
(6) Neither this subdivision nor the procedures provided in subdivision (e) and subdivisions (g) to (j), inclusive, shall affect the requirements imposed by statute or a court decision in existence on the January 1, 2002 concerning whether claims raised by any person or public prosecutor not a party to the action are precluded by a settlement approved by the court.
(g) The Attorney General shall maintain a record of the information submitted pursuant to subdivisions (e) and (f) and shall make this information available to the public.
(h) (1) Except as provided in paragraph (2), the basis for the certificate of merit required by subdivision (d) is not discoverable. However, nothing in this subdivision shall preclude the discovery of information related to the certificate of merit if that information is relevant to the subject matter of the action and is otherwise discoverable, solely on the ground that it was used in support of the certificate of merit.
(2) Upon the conclusion of an action brought pursuant to subdivision (d) with respect to any defendant, if the trial court determines that there was no actual or threatened exposure to a listed chemical, the court may, upon the motion of that alleged violator or upon the court's own motion, review the basis for the belief of the person executing the certificate of merit, expressed in the certificate of merit, that an exposure to a listed chemical had occurred or was threatened. The information in the certificate of merit, including the identity of the persons consulted with and relied on by the certifier, and the facts, studies, or other data reviewed by those persons, shall be disclosed to the court in an in-camera proceeding at which the moving party shall not be present. If the court finds that there was no credible factual basis for the certifier's belief that an exposure to a listed chemical has occurred or was threatened, then the action shall be deemed frivolous within the meaning of Section 128.6 or 128.7 of the Code of Civil Procedure, whichever provision is applicable to the action. The court shall not find a factual basis credible on the basis of a legal theory of liability that is frivolous within the meaning of Section 128.6 or 128.7 of the Code of Civil Procedure, whichever provision is applicable to the action.
(i) The Attorney General may provide the factual information submitted to establish the basis of the certificate of merit on request to any district attorney, city attorney, or prosecutor within whose jurisdiction the violation is alleged to have occurred, or to any other state or federal government agency, but in all other respects the Attorney General shall maintain, and ensure that all recipients maintain, the submitted information as confidential official information to the full extent authorized in Section 1040 of the Evidence Code.
(j) In any action brought by the Attorney General, a district attorney, a city attorney, or a prosecutor pursuant to this chapter, the Attorney General, district attorney, city attorney, or prosecutor may seek and recover costs and attorney's fees on behalf of any party who provides a notice pursuant to subdivision (d) and who renders assistance in that action.

25249.8. List of Chemicals Known to Cause Cancer or Reproductive Toxicity. (a) On or before March 1, 1987, the Governor shall cause to be published a list of those chemicals known to the state to cause cancer or reproductive toxicity within the meaning of this chapter, and he shall cause such list to be revised and republished in light of additional knowledge at least once per year thereafter. Such list shall include at a minimum those substances identified by reference in Labor Code Section 6382(b)(1) and those substances identified additionally by reference in Labor Code Section 6382(d).
(b) A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state's qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity, or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity, or if an agency of the state or federal government has formally required it to be labeled or identified as causing cancer or reproductive toxicity.
(c) On or before January 1, 1989, and at least once per year thereafter, the Governor shall cause to be published a separate list of those chemicals that at the time of publication are required by state or federal law to have been tested for potential to cause cancer or reproductive toxicity but that the state's qualified experts have not found to have been adequately tested as required.
(d) The Governor shall identify and consult with the state's qualified experts as necessary to carry out his duties under this section.
(e) In carrying out the duties of the Governor under this section, the Governor and his designates shall not be considered to be adopting or amending a regulation within the meaning of the Administrative Procedure Act as defined in Government Code Section 11370.

25249.9. Exemptions from Discharge Prohibition.
(a) Section 25249.5 shall not apply to any discharge or release that takes places less than twenty months subsequent to the listing of the chemical in question on the list required to be published under subdivision (a) of Section 25249.8.
(b) Section 25249.5 shall not apply to any discharge or release that meets both of the following criteria:
(1) The discharge or release will not cause any significant amount of the discharged or released chemical to enter any source of drinking water.
(2) The discharge or release is in conformity with all other laws and with every applicable regulation, permit, requirement, and order. In any action brought to enforce Section 25249.5, the burden of showing that a discharge or release meets the criteria of this subdivision shall be on the defendant.

25249.10. Exemptions from Warning Requirement.
Section 25249.6 shall not apply to any of the following:
(a) An exposure for which federal law governs warning in a manner that preempts state authority.
(b) An exposure that takes place less than twelve months subsequent to the listing of the chemical in question on the list required to be published under subdivision (a) of Section 25249.8.
(c) An exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical pursuant to subdivision (a) of Section 25249.8. In any action brought to enforce Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant.

25249.11. Definitions. For purposes of this chapter:
(a) "Person" means an individual, trust, firm, joint stock company, corporation, company, partnership, limited liability company, and association.
(b) "Person in the course of doing business" does not include any person employing fewer than 10 employees in his or her business; any city, county, or district or any department or agency thereof or the state or any department or agency thereof or the federal government or any department or agency thereof; or any entity in its operation of a public water system as defined in Section 4010.1.
(c) "Significant amount" means any detectable amount except an amount which would meet the exemption test in subdivision (c) of Section 25249.10 if an individual were exposed to such an amount in drinking water.
(d) "Source of drinking water" means either a present source of drinking water or water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses.
(e) "Threaten to violate" means to create a condition in which there is a substantial probability that a violation will occur.
(f) "Warning" within the meaning of Section 25249.6 need not be provided separately to each exposed individual and may be provided by general methods such as labels on consumer products, inclusion of notices in mailings to water customers, posting of notices, placing notices in public news media, and the like, provided that the warning accomplished is clear and reasonable. In order to minimize the burden on retail sellers of consumer products including foods, regulations implementing Section 25249.6 shall to the extent practicable place the obligation to provide any warning materials such as labels on the producer or packager rather than on the retail seller, except where the retail seller itself is responsible for introducing a chemical known to the state to cause cancer or reproductive toxicity into the consumer product in question.

25249.12. (a) The Governor shall designate a lead agency and other agencies that may be required to implement this chapter, including this section. Each agency so designated may adopt and modify regulations, standards, and permits as necessary to conform with and implement this chapter and to further its purposes.
(b) The Safe Drinking Water and Toxic Enforcement Fund is hereby established in the State Treasury. The director of the lead agency designated by the Governor to implement this chapter may expend the funds in the Safe Drinking Water and Toxic Enforcement Fund, upon appropriation by the Legislature, to implement and administer this chapter.
(c) In addition to any other money that may be deposited in the Safe Drinking Water and Toxic Enforcement Fund, all of the following amounts shall be deposited in the fund:
(1) Seventy-five percent of all civil and criminal penalties collected pursuant to this chapter.
(2) Any interest earned upon the money deposited into the Safe Drinking Water and Toxic Enforcement Fund.
(d) Twenty-five percent of all civil and criminal penalties collected pursuant to this chapter shall be paid to the office of the city attorney, city prosecutor, district attorney, or Attorney General, whichever office brought the action, or in the case of an action brought by a person under subdivision (d) of Section 25249.7, to that person.

25249.13. Preservation Of Existing Rights, Obligations, and Penalties. Nothing in this chapter shall alter or diminish any legal obligation otherwise required in common law or by statute or regulation, and nothing in this chapter shall create or enlarge any defense in any action to enforce such legal obligation. Penalties and sanctions imposed under this chapter shall be in addition to any penalties or sanctions otherwise prescribed by law.

25180.7. (a) Within the meaning of this section, a "designated government employee" is any person defined as a "designated employee" by Government Code Section 82019, as amended. (b) Any designated government employee who obtains information in the course of his official duties revealing the illegal discharge or threatened illegal discharge of a hazardous waste within the geographical area of his jurisdiction and who knows that such discharge or threatened discharge is likely to cause substantial injury to the public health or safety must, within seventy-two hours, disclose such information to the local Board of Supervisors and to the local health officer. No disclosure of information is required under this subdivision when otherwise prohibited by law, or when law enforcement personnel have determined that such disclosure would adversely affect an ongoing criminal investigation, or when the information is already general public knowledge within the locality affected by the discharge or threatened discharge. (c) Any designated government employee who knowingly and intentionally fails to disclose information required to be disclosed under subdivision (b) shall, upon conviction, be punished by imprisonment in the county jail for not more than one year or by imprisonment in state prison for not more than three years. The court may also impose upon the person a fine of not less than five thousand dollars ($5000) or more than twenty-five thousand dollars ($25,000). The felony conviction for violation of this section shall require forfeiture of government employment within thirty days of conviction.
(d) Any local health officer who receives information pursuant to subdivision (b) shall take appropriate action to notify local news media and shall make such information available to the public without delay.

25192. (a) All civil and criminal penalties collected pursuant to this chapter shall be apportioned in the following manner:
(1) Fifty percent shall be deposited in the Hazardous Substance Account in the General Fund.
(2) Twenty-five percent shall be paid to the office of the city attorney, city prosecutor, district attorney, or Attorney General, whichever office brought the action.
(3) Twenty-five percent shall be paid to the department and used to fund the activity of the CUPA, the local health officer, or other local public officer or agency authorized to enforce the provisions of this chapter pursuant to Section 25180, whichever entity investigated the matter that led to the bringing of the action. If investigation by the local police department or sheriff's office or California Highway Patrol led to the bringing of the action, the CUPA, the local health officer, or the authorized officer or agency, shall pay a total of 40 percent of its portion under this subdivision to that investigating agency or agencies to be used for the same purpose. If more than one agency is eligible for payment under this paragraph, division of payment among the eligible agencies shall be in the discretion of the CUPA, the local health officer, or the authorized officer or agency.
(b) If a reward is paid to a person pursuant to Section 25191.7, the amount of the reward shall be deducted from the amount of the civil penalty before the amount is apportioned pursuant to subdivision (a).

California phthalates law takes effect Jan. 1, 2009

2008-12-24T11:49:00.000-08:00

This was was passed on Oct. 2007. It covers the same phthalates that the CPSC law covers. The difference is that California intends to enforce this law as of Jan. 1, 2009 (Not Feb. 10 , 2009 like the CPSC) and unlike the CPSC the January date will be a sell date not a manufacturing date. The CPSC has taken the position that articles manufactured before Feb 10, 2009, even though sold after that date, do not violate the CPSIA section on phthalates.

BILL NUMBER: AB 1108 CHAPTERED
BILL TEXT

CHAPTER 672
FILED WITH SECRETARY OF STATE OCTOBER 14, 2007
APPROVED BY GOVERNOR OCTOBER 14, 2007
PASSED THE SENATE SEPTEMBER 4, 2007
PASSED THE ASSEMBLY JUNE 5, 2007
AMENDED IN ASSEMBLY MAY 14, 2007
AMENDED IN ASSEMBLY APRIL 25, 2007

INTRODUCED BY Assembly Member Ma
(Coauthor: Assembly Member Huffman)

FEBRUARY 23, 2007

An act to add Chapter 11 (commencing with Section 108935) to Part
3 of Division 104 of the Health and Safety Code, relating to product
safety.

LEGISLATIVE COUNSEL'S DIGEST

AB 1108, Ma. Children's products: phthalates.
Existing law prohibits the manufacture, processing, and
distribution in commerce of products containing certain chemicals
found to raise health risks, including, but not limited to,
polybrominated diphenyl ether.
This bill would, commencing January 1, 2009, prohibit the
manufacture, sale, or distribution in commerce of certain toys and
child care articles, as defined, if those products contain types of
phthalates in concentrations exceeding 1/10 of 1%.
This bill would also require manufacturers to use the least toxic
alternative when replacing phthalates in their products and would
prohibit manufacturers from replacing phthalates with certain
carcinogens and reproductive toxicants.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares both of the
following:
(a) Phthalates are a class of chemicals used in polyvinyl chloride
(PVC) plastic to improve flexibility and in cosmetics to bind
fragrance to the product. Phthalates are used in many products
intended for use by young children, including, but not limited to,
teethers, toys, and soft plastic books.
(b) There is extensive scientific literature reporting the
hormone-disrupting effects phthalates and substantial evidence that
levels of the phthalates of concern are found in humans at levels
associated with adverse effects. Population studies show that
virtually everyone carries some level of phthalates in their body.
For the general population, the oral route of exposure is considered
a major route.
SEC. 2. Chapter 11 (commencing with Section 108935) is added to
Part 3 of Division 104 of the Health and Safety Code, to read:

CHAPTER 11. PHTHALATES IN PRODUCTS FOR YOUNG CHILDREN

108935. For the purposes of this chapter, the following terms
have the following meanings:
(a) "Toy" means all products designed or intended by the
manufacturer to be used by children when they play.
(b) "Child care article" means all products designed or intended
by the manufacturer to facilitate sleep, relaxation, or the feeding
of children, or to help children with sucking or teething.
108937. (a) Commencing January 1, 2009, no person or entity shall
manufacture, sell, or distribute in commerce any toy or child care
article that contains di-(2-ethylhexyl) phthalate (DEHP), dibutyl
phthalate (DBP), or benzyl butyl phthalate (BBP), in concentrations
exceeding 0.1 percent.
(b) Commencing January 1, 2009, no person or entity shall
manufacture, sell, or distribute in commerce any toy or child care
article intended for use by a child under three years of age if that
product can be placed in the child's mouth and contains diisononyl
phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl
phthalate (DnOP), in concentrations exceeding 0.1 percent.
108939. (a) Manufacturers shall use the least toxic alternative
when replacing phthalates in accordance with this chapter.
(b) Manufacturers shall not replace phthalates, pursuant to this
chapter, with carcinogens rated by the United States Environmental
Protection Agency as A, B, or C carcinogens, or substances listed as
known or likely carcinogens, known to be human carcinogens, likely to
be human carcinogens, or suggestive of being human carcinogens, as
described in the "List of Chemicals Evaluated for Carcinogenic
Potential," or known to the state to cause cancer as listed in the
California Safe Drinking Water Act (Chapter 4 (commencing with
Section 116270) of Part 12).
(c) Manufacturers shall not replace phthalates, pursuant to this
chapter, with reproductive toxicants that cause birth defects,
reproductive harm, or developmental harm as identified by the United
States Environmental Protection Agency or listed in the California
Safe Drinking Water Act (Chapter 4 (commencing with Section 116270)
of Part 12).

Federal Motor Vehicle Safety Standard No. 218 (Motorcycle helmets)

2008-12-23T22:40:00.000-08:00

[Code of Federal Regulations]
[Title 49, Volume 5, Parts 400 to 999]
[Revised as of October 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR571.218]
[Page 581-596]

TITLE 49--TRANSPORTATION

CHAPTER V--NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS6--Table of Contents

Subpart B--Federal Motor Vehicle Safety Standards

Sec. 571.218 Standard No. 218; Motorcycle helmets.

S1. Scope. This standard establishes minimum performance

requirements for helmets designed for use by motorcyclists and other

motor vehicle users.

S2. Purpose. The purpose of this standard is to reduce deaths and

injuries to motorcyclists and other motor vehicle users resulting from

head impacts.

S3. Application. This standard applies to all helmets designed for

use by motorcyclists and other motor vehicle users.

S4. Definitions.

Basic plane means a plane through the centers of the right and left

external ear openings and the lower edge of the eye sockets (Figure 1)

of a reference headform (Figure 2) or test headform.

Helmet positioning index means the distance in inches, as specified

by the manufacturer, from the lowest point of the brow opening at the

lateral midpoint of the helmet to the basic plane of a reference

headform, when the helmet is firmly and properly positioned on the

reference headform.

Midsagittal plane means a longitudinal plane through the apex of a

reference headform or test headform that is perpendicular to the basic

plane (Figure 3).

Reference headform means a measuring device contoured to the

dimensions of one of the three headforms described in Table 2 and

Figures 5 through 8 with surface markings indicating the locations of

the basic, mid-sagittal, and reference planes, and the centers of the

external ear openings.

Reference plane means a plane above and parallel to the basic plane

on a reference headform or test headform (Figure 2) at the distance

indicated in Table 2.

Retention system means the complete assembly by which the helmet is

retained in position on the head during use.

Test headform means a test device contoured to the dimensions of one

of the three headforms described in Table 2 and Figures 5 through 8 with

surface markings indicating the locations of the basic, mid-sagittal,

and reference planes.

S5. Requirements. Each helmet shall meet the requirements of S5.1,

S5.2, and S5.3 when subjected to any conditioning procedure specified in

S6.4, and tested in accordance with S7.1, S7.2, and S7.3.

S5.1 Impact attenuation. When an impact attenuation test is

conducted in accordance with S7.1, all of the following requirements

shall be met:

(a) Peak accelerations shall not exceed 400g;

(b) Accelerations in excess of 200g shall not exceed a cumulative

duration of 2.0 milliseconds; and

(c) Accelerations in excess of 150g shall not exceed a cumulative

duration of 4.0 milliseconds.

S5.2 Penetration. When a penetration test is conducted in

accordance with S7.2, the striker shall not contact the surface of the

test headform.

S5.3 Retention system.

S5.3.1 When tested in accordance with S7.3:

(a) The retention system or its components shall attain the loads

specified without separation; and

(b) The adjustable portion of the retention system test device shall

not move more than 1 inch (2.5 cm) measured between preliminary and test

load positions.

S5.3.2 Where the retention system consists of components which can

be independently fastened without securing the complete assembly, each

such component shall independently meet the requirements of S5.3.1.

S5.4 Configuration. Each helmet shall have a protective surface of

continuous contour at all points on or above the test line described in

S6.2.3. The helmet shall provide peripheral vision clearance of at least

105 deg. to each side of the mid-sagittal plane, when the helmet is

adjusted as specified in S6.3. The vertex of these angles, shown in

Figure 3, shall be at the point on the anterior surface of the reference

headform at the intersection of the mid-sagittal and basic planes. The

brow opening of the helmet shall be at least 1 inch (2.5 cm) above all

points in the basic plane that are within the angles of peripheral

vision (see Figure 3).

S5.5 Projections. A helmet shall not have any rigid projections

inside its shell. Rigid projections outside any

helmet's shell shall be limited to those required for operation of

essential accessories, and shall not protrude more than 0.20 inch (5mm).

S5.6 Labeling.

S5.6.1 Each helmet shall be labeled permanently and legibly, in a

manner such that the label(s) can be read easily without removing

padding or any other permanent part, with the following:

(a) Manufacturer's name or identification.

(b) Precise model designation.

(c) Size.

(d) Month and year of manufacture. This may be spelled out (for

example, June 1988), or expressed in numerals (for example, 6/88).

(e) The symbol DOT, constituting the manufacturer's certification

that the helmet conforms to the applicable Federal motor vehicle safety

standards. This symbol shall appear on the outer surface, in a color

that contrasts with the background, in letters at least \3/8\ inch (1

cm) high, centered laterally with the horizontal centerline of the

symbol located a minimum of 1\1/8\ inches (2.9 cm) and a maximum of 1\3/

8\ inches (3.5 cm) from the bottom edge of the posterior portion of the

helmet.

(f) Instructions to the purchaser as follows:

(1) ``Shell and liner constructed of (identify type(s) of

materials).

(2) ``Helmet can be seriously damaged by some common substances

without damage being visible to the user. Apply only the following:

(Recommended cleaning agents, paints, adhesives, etc., as appropriate).

(3) ``Make no modifications. Fasten helmet securely. If helmet

experiences a severe blow, return it to the manufacturer for inspection,

or destory it and replace it.''

(4) Any additional relevant safety information should be applied at

the time of purchase by means of an attached tag, brochure, or other

suitable means.

S5.7 Helmet positioning index. Each manufacturer of helmets shall

establish a positioning index for each helmet he manufactures. This

index shall be furnished immediately to any person who requests the

information, with respect to a helmet identified by manufacturer, model

designation, and size.

S6. Preliminary test procedures. Before subjecting a helmet to the

testing sequence specified in S7., prepare it according to the

procedures in S6.1, S6.2, and S6.3.

S6.1 Selection of appropriate headform.

S6.1.1 A helmet with a manufacturer's designated discrete size or

size range which does not exceed 6\3/4\ (European size: 54) is tested on

the small headform. A helmet with a manufacturer's designated discrete

size or size range which exceeds 6\3/4\, but does not exceed 7\1/2\

(European size: 60) is tested on the medium headform. A helmet with a

manufacturer's designated discrete size or size range which exceeds 7\1/

2\ is tested on the large headform.

S6.1.2 A helmet with a manufacturer's designated size range which

includes sizes falling into two or all three size ranges described in

S6.1.1 is tested on each headform specified for each size range.

S6.2 Reference marking.

S6.2.1 Use a reference headform that is firmly seated with the basic

and reference planes horizontal. Place the complete helmet to be tested

on the appropriate reference headform, as specified in S6.1.1 and

S6.1.2.

S6.2.2 Apply a 10-pound (4.5 kg) static verticle load through the

helmet's apex. Center the helmet laterally and seat it firmly on the

reference headform according to its helmet positioning index.

S6.2.3 Maintaining the load and position described in S6.2.2, draw a

line (hereinafter referred to as ``test line'') on the outer surface of

the helmet coinciding with portions of the intersection of that service

with the following planes, as shown in Figure 2:

(a) A plane 1 inch (2.5 cm) above and parallel to the reference

plane in the anterior portion of the reference headform;

(b) A vertical transverse plane 2.5 inches (6.4 cm) behind the point

on the anterior surface of the reference headform at the intersection of

the mid-sagittal and reference planes;

(c) The reference plane of the reference headform;

(d) A vertical transverse plane 2.5 inches (6.4. cm) behind the

center of the external ear opening in a side view; and

(e) A plane 1 inch (2.5 cm) below and parallel to the reference

plane in the posterior portion of the reference headform.

S6.3 Helmet positioning.

S6.3.1 Before each test, fix the helmet on a test headform in the

position that conforms to its helmet positioning index. Secure the

helmet so that it does not shift position before impact or before

application of force during testing.

S6.3.2 In testing as specified in S7.1 and S7.2, place the retention

system in a position such that it does not interfere with free fall,

impact or penetration.

S6.4 Conditioning.

S6.4.1 Immediately before conducting the testing sequence specified

in S7, condition each test helmet in accordance with any one of the

following procedures:

(a) Ambient conditions. Expose to a temperature of

70 deg.F(21 deg.C) and a relative humidity of 50 percent for 12 hours.

(b) Low temperature. Expose to a temperature of 14 deg.F(-10 deg.C)

for 12 hours.

(c) High temperature. Expose to a temperature of 122 deg.F(50 deg.C)

for 12 hours.

(d) Water immersion. Immerse in water at a temperature of

77 deg.F(25 deg.C) for 12 hours.

S6.4.2 If during testing, as specified in S7.1.3 and S7.2.3, a

helmet is returned to the conditioning environment before the time out

of that environment exceeds 4 minutes, the helmet is kept in the

environment for a minimum of 3 minutes before resumption of testing with

that helmet. If the time out of the environment exceeds 4 minutes, the

helmet is returned to the environment for a minimum of 3 minutes for

each minute or portion of a minute that the helmet remained out of the

environment in excess of 4 minutes or for a maximum of 12 hours,

whichever is less, before the resumption of testing with that helmet.

S7. Test conditions.

S7.1 Impact attenuation test.

S7.1.1 Impact attenuation is measured by determining acceleration

imparted to an instrumented test headform on which a complete helmet is

mounted as specified in S6.3, when it is dropped in guided free fall

upon a fixed hemispherical anvil and a fixed flat steel anvil.

S7.1.2 Each helmet is impacted at four sites with two successive

identical impacts at each site. Two of these sites are impacted upon a

flat steel anvil and two upon a hemispherical steel anvil as specified

in S7.1.10 and S7.1.11. The impact sites are at any point on the area

above the test line described in paragraph S6.2.3, and separated by a

distance not less than one-sixth of the maximum circumference of the

helmet in the test area.

S7.1.3 Impact testing at each of the four sites, as specified in

S7.1.2, shall start at two minutes, and be completed by four minutes,

after removal of the helmet from the conditioning environment.

S7.1.4 (a) The guided free fall drop height for the helmet and test

headform combination onto the hemispherical anvil shall be such that the

minimum impact speed is 17.1 feet/second (5.2 m/sec). The minimum drop

height is 54.5 inches (138.4 cm). The drop height is adjusted upward

from the minimum to the extent necessary to compensate for friction

losses.

(b) The guided free fall drop height for the helmet and test

headform combination onto the flat anvil shall be such that the minimum

impact speed is 19.7 ft./sec (6.0 m/sec). The minimum drop height is 72

inches (182.9 cm). The drop height is adjusted upward from the minimum

to the extent necessary to compensate for friction losses.

S7.1.5 Test headforms for impact attenuation testing are constructed

of magnesium alloy (K-1A), and exhibit no resonant frequencies below

2,000 Hz.

S7.1.6 The monorail drop test system is used for impact attenuation

testing.

S7.1.7 The weight of the drop assembly, as specified in Table 1, is

the combined weight of the test headform and the supporting assembly for

the drop test. The weight of the supporting assembly is not less than

2.0 lbs. and not more than 2.4 lbs. (0.9 to 1.1 kg). The supporting

assembly weight for the monorail system is the drop assembly weight

minus the combined weight of the test headform, the headform's

clamp down ring, and its tie down screws.

S7.1.8 The center of gravity of the test headform is located at the

center of the mounting ball on the supporting assembly and lies within a

cone with its axis vertical and forming a 10 deg. included angle with

the vertex at the point of impact. The center of gravity of the drop

assembly lies within the rectangular volume bounded by x = -0.25 inch

(-0.64 cm), x = 0.85 inch (2.16 cm), y = 0.25 inch (0.64 cm), and y =

-0.25 inch (-0.64 cm) with the origin located at the center of gravity

of the test headform. The rectangular volume has no boundary along the

z-axis. The x-y-z axes are mutually perpendicular and have positive or

negative designations in accordance with the right-hand rule (See Figure

5). The origin of the coordinate axes also is located at the center of

the mounting ball on the supporting assembly (See Figures 6, 7, and 8).

The x-y-z axes of the test headform assembly on a monorail drop test

equipment are oriented as follows: From the origin, the x-axis is

horizontal with its positive direction going toward and passing through

the vertical centerline of the monorail. The positive z-axis is

downward. The y-axis also is horizontal and its direction can be decided

by the z- and x-axes, using the right-hand rule.

S7.1.9 The acceleration transducer is mounted at the center of

gravity of the test headform with the sensitive axis aligned to within

5 deg. of vertical when the test headform assembly is in the impact

position. The acceleration data channel complies with SAE Recommended

Practice J211 JUN 80, Instrumentation for Impact Tests, requirements for

channel class 1,000.

S7.1.10 The flat anvil is constructed of steel with a 5-inch (12.7

cm) minimum diameter impact face, and the hemispherical anvil is

constructed of steel with a 1.9 inch (4.8 cm) radius impact face.

S7.1.11 The rigid mount for both of the anvils consists of a solid

mass of at least 300 pounds (136.1 kg), the outer surface of which

consists of a steel plate with minimum thickness of 1 inch (2.5 cm) and

minimum surface area of 1 ft \2\ (929 cm \2\ ).

S7.1.12 The drop system restricts side movement during the impact

attenuation test so that the sum of the areas bounded by the

acceleration-time response curves for both the x- and y-axes (horizontal

axes) is less than five percent of the area bounded by the acceleration-

time response curve for the vertical axis.

S7.2 Penetration test.

S7.2.1 The penetration test is conducted by dropping the penetration

test striker in guided free fall, with its axis aligned vertically, onto

the outer surface of the complete helmet, when mounted as specified in

S6.3, at any point above the test line, described in S6.2.3, except on a

fastener or other rigid projection.

S7.2.2 Two penetration blows are applied at least 3 inches (7.6 cm)

apart, and at least 3 inches (7.6 cm) from the centers of any impacts

applied during the impact attenuation test.

S7.2.3 The application of the two penetration blows, specified in

S7.2.2, starts at two minutes and is completed by four minutes, after

removal of the helmet from the conditioning environment.

S7.2.4 The height of the guided free fall is 118.1 inches (3 m), as

measured from the striker point to the impact point on the outer surface

of the test helmet.

S7.2.5 The contactable surface of the penetration test headform is

constructed of a metal or metallic alloy having a Brinell hardness

number no greater than 55, which will permit ready detection should

contact by the striker occur. The surface is refinished if necessary

before each penetration test blow to permit detection of contact by the

striker.

S7.2.6 The weight of the penetration striker is 6 pounds, 10 ounces

(3 kg).

S7.2.7 The point of the striker has an included angle of 60 deg., a

cone height of 1.5 inches (3.8 cm), a tip radius of 0.02 inch (standard

0.5 millimeter radius) and a minimum hardness of 60 Rockwell, C-scale.

S7.2.8 The rigid mount for the penetration test headform is as

described in S7.1.11.

S7.3 Retention system test.

S7.3.1 The retention system test is conducted by applying a static

tensile load to the retention assembly of a complete helmet, which is mounted,

as described in S6.3, on a stationary test headform as shown in Figure

4, and by measuring the movement of the adjustable portion of the

retention system test device under tension.

S7.3.2 The retention system test device consists of both an

adjustable loading mechanism by which a static tensile load is applied

to the helmet retention assembly and a means for holding the test

headform and helmet stationary. The retention assembly is fastened

around two freely moving rollers, both of which have a 0.5 inch (1.3 cm)

diameter and a 3-inch (7.6 cm) center-to-center separation, and which

are mounted on the adjustable portion of the tensile loading device

(Figure 4). The helmet is fixed on the test headform as necessary to

ensure that it does not move during the application of the test loads to

the retention assembly.

S7.3.3 A 50-pound (22.7 kg) preliminary test load is applied to the

retention assembly, normal to the basic plane of the test headform and

symmetrical with respect to the center of the retention assembly for 30

seconds, and the maximum distance from the extremity of the adjustable

portion of the retention system test device to the apex of the helmet is

measured.

S7.3.4 An additional 250-pound (113.4 kg) test load is applied to

the retention assembly, in the same manner and at the same location as

described in S7.3.3, for 120 seconds, and the maximum distance from the

extremity of the adjustable portion of the retention system test device

to the apex of the helmet is measured.

Appendix to Sec. 571.218

Table 1--Weights for Impact Attenuation Test Drop Assembly

------------------------------------------------------------------------

Test headform size Weight \1\--1b(kg)

------------------------------------------------------------------------

Small................................... 7.8 (3.5 kg).

Medium.................................. 11.0 (5.0 kg).

Large................................... 13.4 (6.1 kg).

------------------------------------------------------------------------

\1\ Combined weight of instrumented test headform and supporting

assembly for drop test.

[GRAPHIC OMITTED]

National Highway Traffic Safety Administration (NHTSA)

2008-12-23T22:34:00.000-08:00

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Federal Motor Vehicle Safety Standard No. 218 (Motorcycle helmets)