The Consumer Product Safety Commission is persecuting a fireworks manufacturer because its products make the wrong sound.
The Consumer Product Safety Commission is persecuting a fireworks manufacturer because its products make the wrong sound.
T heory: Regulators develop specialized, scientific knowledge of the industries they regulate, and that expertise is necessary for effective governance in the modern world.
Reality: Regulators have decided to ban fireworks based on whether the sound they make is more of a “poof” or a “bang.”
Poofs are allowed, and bangs are not, under the Audible Effects Regulation enforced by the Consumer Product Safety Commission. The CPSC is the same agency that questioned whether gas-powered stoves are safe, and it’s a textbook case of the administrative state run amok. It abuses its statutory authority to harass small businesses, and it can do so in a way that denies victims their constitutional right to a fair trial.
The latest example is its persecution of Jake’s Fireworks. Jake’s sells numerous different firework products, among them reloadable aerial shells. Those are a type of consumer firework — i.e., they do not require any professional qualifications to set off — with a diameter of 1.75 inches or less. They explode about 50 feet off the ground.
In 1970, the Audible Effects Regulation was created to ban everyday consumers from buying flares used by farmers to scare away animals. The products farmers use are intended to produce an audible effect, not a visual effect. To stay on the safe side of this regulation, consumer-fireworks manufacturers must make fireworks that are intended to produce a visual effect, not an audible one.
Fireworks explode. They make noise when they explode. This is a significant part of their appeal as a product. They don’t need to be silent, and they can’t be silent. To determine whether a firework is intended to create a visual effect — whether it should be permitted for sale or banned from the marketplace — the CPSC uses the poof/bang test.
The poof/bang test is not a safety test. The CPSC does not maintain that fireworks pose greater levels of danger based on the sound they make. The purpose of the test is to identify fireworks that are subject to the Audible Effects Regulation.
Reloadable aerial shells aren’t even supposed to be subject to the regulation in the first place. They are small fireworks that aren’t intended to produce an audible effect. The Audible Effects Regulation mentions cherry bombs as an example of the types of fireworks it is meant to regulate. But the CPSC began applying the regulation to reloadable aerial shells anyway in 1990.
To test a firework, CPSC staff set one off and judge whether it sounds like a “poof” or a “bang.” If it’s a “bang,” the CPSC can ban the product’s sale to consumers. No consumer actually complained about Jake’s, and the CPSC hasn’t cited any injuries caused by the products. But the CPSC has, since 2006, found that Jake’s reloadable aerial shells are a little too bang-y and informed Jake’s that they are considered a “banned hazardous substance.” As a result, Jake’s needs to destroy the products, and if it sells them, it could be subject to more than $15 million in fines and possible criminal charges.
The CPSC has also said that Jake’s failed to label the products adequately because they make loud noises. But no actual regulation exists mandating such a label, and the CPSC has only pointed to general fireworks-labeling regulations, which Jake’s has followed.
Jake’s challenged both parts of the CPSC’s ruling — or what it thought was the CPSC’s ruling. The CPSC claims that its decision is not a “final action” and therefore is not subject to judicial review under the Administrative Procedure Act (APA). Jake’s has already completed its appeal of the decision within the CPSC, and the CPSC did not change its decision. Federal district courts said they couldn’t hear the challenge of a nonfinal action.
So Jake’s is stuck. It has $2 million worth of fireworks that it believes to be legal that have been ruled illegal through an administrative process. It can’t sell them without incurring significant penalties. It certainly seems like a final decision, since there’s nothing more Jake’s can do to change it.
The Pacific Legal Foundation, a public-interest law firm, is representing Jake’s as it challenges the district court’s ruling at the Fourth Circuit Court of Appeals. PLF argues that the Fourth Circuit should reverse the district court’s dismissal of the case and allow Jake’s the trial it deserves. The administrative state has tried this not-final-but-actually-final chicanery before, and the Supreme Court has shot it down. PLF’s opening brief cites several of those previous cases.
In Sackett v. EPA, the Supreme Court rejected the EPA’s argument that a ruling wasn’t final because the agency could change its mind in the future. It held that the “mere possibility that an agency might reconsider in light of ‘informal discussion’ and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.” If the possibility of an agency changing its mind means a decision isn’t final, agencies could avoid judicial review forever.
In Hawkes II, the Supreme Court ruled that even if an agency action doesn’t directly cause punishment, it can still be a final action. The CPSC’s ruling against Jake’s says there will be penalties if Jake’s tries to sell the reloadable aerial shells. If an action is only final when the punishments are actually meted out, agencies can hang penalties over businesses’ heads and prevent them from doing things without any judicial review.
“The CPSC should not be allowed — and under the APA, it is not allowed — to avoid accountability by indefinitely prolonging its administrative process to prevent juridical review,” PLF’s brief says. This is common sense, but the CPSC seems immune from it. A former chairwoman of the CPSC believes that it should have the power to regulate firearms as well, adding the Second Amendment to the rights it wishes to trample upon. This agency is out of control, and whether its overreaches are terminated with a poof or a bang from the courts, they must end.