In response to rising fatalities and injuries in the 1970s the Consumer Products Safety Commission moved to ban, for example, cherry bombs, M-80s, and other fireworks that were designed and intended to produce an audible effect. To that end, CPSC, under the Federal Hazardous Substances Act, ultimately banned all fireworks devices intended to produce an audible effect, provided the audible effect is produced by a charge of more than 2 grains of pyrotechnic composition. The only exception to this rule are devices intended and sold for bona fide agricultural use, e.g., scaring wildlife.
The CPSC has not, however, provided an exhaustive list of banned devices, leaving it open for Agency determination. Similarly, the CPSC also left unaddressed the issue of how to determine whether a product falls into the category of banned devices (intended to produce an audible effect). In this void, the CPSC’s Consumer Fireworks Testing Manual adopted a Sound Test, whereby Commission staff would evaluate the relative intensity of any sound produced by a firework device to determine whether such sound is an intended effect or, alternatively, merely incidental to the operation of the device itself. The current Sound Test is completely subjective, if only for the fact that one staff members’ hearing may be more sensitive than another. At best, the current Sound Test process is arcane, inconsistent and generally unreliable; at worst, the current Sound Test is both arbitrary and capricious, subjecting the Agency to legal challenge.
No one can say the CPSC is sound deaf. Instead of developing its own proprietary standard, the CPSC is seemingly prepared to adopt the voluntary ‘bright-line’ standard promulgated by the American Pyrotechnics Association. In brief, under APA Standard 87-1, any burst charge/break charge containing metallic powder less than 100-mesh in particle size is automatically deemed intended to produce an audible effect and, accordingly, is limited to 130 mg (the equivalent of 2 grains) in consumer fireworks. The fact that the APA Standard has already been adopted by reference by the US Department of Transportation only enhances the CPSC’s recent statement of policy to adopt.
Accordingly, it appears that CPSC will now interpret the critical phrase “intended to produce an audible effect” in the following manner. Tracking the language in APA Standard 87-, the CPSC “will consider the presence in the burst (or break) charge of a fireworks device of metallic powder less than 100-mesh in particle size to mean that the device is intended to produce an audible effect. Likewise, if the device lacks such metallic powder, staff will consider it as not intended to produce an audible effect.” In view of its reliance upon clear and unambiguous language, the CPSC’s revised Sound Test protocols will likely result in more efficient (i.e., successful) enforcement. October 6, 2016 is the present deadline for submissions of public comment.