Regulatory

Consumer Product Safety Commission Proposed Rule Change That Could Ban Many Aerial Consumer Fireworks

Summary

The Consumer Product Safety Commission (CPSC) is considering a new rule that would dramatically change the testing procedures for aerial consumer fireworks, which would likely lead to the ban of many devices that have been legally imported, and sold in the United States for decades.

Current Fireworks Regulations

Consumer aerial devices are limited to two grains (130 mg) of pyrotechnic content if they contain fine metals in their burst charge and are solely intended to produce an audible effect (e.g., a bang or a pop) instead of a visual effect (e.g., the break of a shell). Currently, the CPSC staff evaluates whether devices are intended to produce an audible effect by listening to the sound level of a device (e.g., ear test).

Draft Rule

The CPSC's draft rule would ban all aerial devices with more than two grains of pyrotechnic content if a powdered metal is detected in the burst charge. The CPSC's rationale for changing the rule is that the existence of powdered metals is a better indicator of the explosive power of a device than the sound level of its report.

Several Problems with the Draft Rule

The potential effect of the draft rule on what devices are permissible is dramatic. The CPSC randomly tested fireworks samples collected from the years 2014 to 2016. Using the criteria in the current rule, the CPSC determined that only 17 percent of the tested devices were intended to produce an audible effect and were subject to the two-grain limitation. However, using the criteria in the proposed rule, the CPSC determined that 84 percent of devices would be subject to the two-grain limitation. That is to say that the draft rule would increase the amount of aerial devices subject to the two-grain limitation substantially. In other words, the draft rule could increase the amount of aerial devices subject to the two-grain limitation by 394 percent.

This means that the CPSC's draft rule would likely serve as a de facto ban on the most popular consumer fireworks devices like reloadable/single shot shells, aerial multi shot devices, and stick rockets.

Fireworks

Current Testing Methods are Fatally Flawed

Under the proposed rule, the CPSC would conduct laboratory testing of devices to determine whether they have powdered metal in their burst charges. The type of test that would be used is called an X-Ray Fluorescence ("XRF") test. The XRF test is fatally flawed in two ways.

1. The XRF testing cannot tell the difference between the powdered metals and metallic compounds. This is a major problem because simply being a metallic compound (which is found in fireworks components and construction materials like clay and adhesives) has absolutely nothing to do with the explosive power of the burst charge.

2. Contamination of burst charges is unavoidable due to the way that they are manufactured, stored, and shipped. In consumer fireworks devices, it is common for color effect stars and burst charges to be comingled. This allows powdered metals in frangible stars to become detached and contaminate the burst charge of an aerial device. The powdered metal contaminates do not have a material effect of the explosive power of a burst charge, and most often have no effect at all. In sum, the XRF test that the CPSC would use to enforce its proposed rule is not appropriate. Its use would ban many devices for reasons that have little to do with the explosive force of the devices and any potential concerns with the increased risk of injury to end users.

The CPSC's Justifications for the Change Does not Stand up to Scrutiny

The CPSC's attempts to justify the proposed rule by claiming that fireworks designs have changed since the original rule was adopted, and the screening for powdered metals is more effective than determining whether devices are intended to produce audible effects. Neither of these justifications stand up to scrutiny. At the time that the current rule was adopted, the use of powdered metals as a fuel in pyrotechnic charges was well known. For example, firecrackers and bottle rockets contained 30 percent powdered aluminum, however those limits were under the 130mg (2 grain) limitation and still are today. Despite this, the original rule was written to screen for devices that were intended to produce audible effects, not devices that contained powdered metal.

Further given the flaws in XRF testing, trying to test for powdered metals is just as likely to be an unreliable predictor of the explosive force of a device as the current rule and "ear test" testing methodology. Furthermore, the current rule's application to aerial devices and saying they are intended to produce audible effects is misguided and is being misapplied from the original intent of the 1970s ban on powerful ground effect devices such as the cherry bombs and M-80s of that time. The burst charge happens when the firework device is way up in the air, and its purpose is to break open the insert that contains all of the color effect stars and to ignite them so they will produce their visual color effect. Without powdered aluminum the burst charge will not be able effectively ignite all of the varied colored effect stars that have become so prevalent in the consumer fireworks of today. Its purpose is to break open and ignite the color effect stars safely so they do not fall back to the ground. It is not there to only to create an audible effect; that is where the current rule and testing method (ear test) are being misapplied.

Conclusion

The CPSC should not move forward with the proposed rule, which would change the types of devices subject to the two-grain limit. Doing so, without achieving the goal of safety, is unacceptable.