Information Regarding the CPSC Action against Firefox
By Tom Handel with John Steinberg
This article is from the January issue of American Fireworks News, a leading fireworks industry publication. They have generously given us permission to make it available here.
A serious situation, which has been developing over the past year, has now reached a stage where action by - and a specific response from - our community of hobbyist pyros are necessary. In our considered opinion, this Consumer Products Safety Commission (CPSC) action constitutes the single greatest threat to amateur pyrotechnic manufacture we have ever faced and is an action that could well, for all practical purposes, end hobbyist pyrotechnics, as we currently know it.
On Monday, 29 November 2004, the CPSC served Gary and Diane Purrington of Firefox with a Complaint for Injunction, the terms of which demand certain constraints on Firefox sales of pyrotechnic chemicals. The details are below, but in summary, it forbids or very severely limits sale of all common oxidizers and many common pyrotechnic fuels to anyone who does not hold a BATFE manufacturing license.
A few days later we had our winter Crackerjacks meeting. John Steinberg and I had the pleasure to spend the day and dinner in the company of a group of pyro notables from all over the country, as well as numerous Crackerjacks. The CPSC suit and related issues were frequent topics of discussion throughout the day. In conversation it came up that Harry Gilliam had, earlier that day, informed John Steinberg that Pyrotek, a pyro chemicals and supplies dealer in Hallstead, PA, had already signed a CPSC consent decree. As a direct result, it was alleged, Pyrotek is very likely to go out of business.
The next day I went to the Pyrotek web site (www.pyrotek.org) and had a look for myself. It would appear they are still in business, but the pattern of chemicals which they now no longer sell (e.g., any aluminum suitable for flash) and those that are "out of stock" bears an eerie resemblance to the CPSC list from the Firefox injunction as enumerated below. The correspondence is not perfect, but it's close.
The next shoe fell about 9:00 AM on Tuesday, 14 December when Harry Gilliam at Skylighter received an un-announced visit from two representatives of the CPSC. They spent about five hours with him, asking lots of questions about “flash kits” and “boomers,” and going through several boxes of Skylighter’s sales records. They made copies of some materials to take away with them for further study (or evidence).
What does all this mean?
This is clearly a disaster for Firefox, but even more importantly, there are a lot of non-federally-licensed hobbyist pyros out there legally manufacturing fireworks of various types who will be severely affected if the CPSC is successful. Here's how it works.
'Spose I'm a whistle rocket fanatic and I am not federally licensed. Assuming I'm over the age of 21 and can prove it, right now I can go to my friendly neighborhood Firefox and legally buy as much Potassium Benzoate, Sodium Salicylate, red Iron Oxide, Potassium Perchlorate, (and anything else I need) as my pyro appetite requires and my pyro budget will allow. I can legally preprocess these materials - mill, screen, weigh, and to a limited extent mix (so long as oxidizers and fuels remain separate and no pyrotechnically live material is created) - in my garage or basement or back yard. I can legally transport these materials to the site of a federally licensed manufacturer (say, the PGI or a regional club). Given appropriate permission from the licensee, I can then, under his license, legally mix my pre-processed materials to create my whistle mix, a pyrotechnically live composition (an explosive, if you will). I can legally press my whistle rockets and fly them to my heart's content (given the licensee/WPA has the appropriate shooting permits).
Now lets look at this scenario (and it is only one) after the CPSC action: Most of it remains the same, but the critical first step, acquisition of the raw materials to pursue my hobby, has been rendered impossible. Firefox can only sell me one pound of Potassium Perchlorate, Potassium Benzoate and Sodium Salicylate per year. That isn’t many four-pound whistle rockets. Fortunately, they can still sell me unlimited quantities of red Iron Oxide (rust) (that's a joke). Even with all the things I can still legally do - processing and transporting materials, creating whistle mix at a licensed manufacturer's facility, building and shooting rockets - it is all for nothing since I cannot legally acquire the necessary raw materials any more.
So, you say, too bad for Firefox, but ring up old Harry at Skylighter and get your materials from him instead. Or maybe that Pyrotek outfit in Pennsylvania.
Well, Pyrotek seems to be “out of stock” on Potassium Perchlorate (as well as many other things). And Skylighter, well, that works for now, but the CPSC has already visited him, and given their historical, well documented and unrelenting war on anything having to do with fireworks, it is, in our considered opinion, inevitable that Harry will not be far behind Firefox and Pyrotek if the CPSC is successful. Armed with the precedents established with Firefox (and perhaps Pyrotek), they will force Skylighter to accede to the same conditions.
But it gets much worse. Firefox has said (and I believe) that imposition of these restrictions will drive them out of the pyro-chemicals-in-hobbyist-quantities business. There is not enough business available from BATFE-licensed hobbyist manufacturers, to whom they can still sell legally, to keep them afloat. (Non-hobbyist manufacturers don't buy from Firefox - they go to Hummel-Croton or Service Chemical and buy their chemicals by the drum and pallet, not the pound.) The same argument will apply to Pyrotek (perhaps already has) and Skylighter in turn, and the result will be that there are no longer any suppliers of any pyro chemicals in hobbyist quantities. Even though someone could legally sell me a pound of Potassium Perchlorate and Sodium Salicylate a year, there is no one in business any more who will do so. Though oxidizers and metals will be the big problem, we'll even be back to combing the drug store shelves and garden shops for such mundane materials as sulfur.
So, you say, let's all just go get federally licensed and solve the problem that way.
It won't happen. Those in our community who are not now federally licensed (the vast majority - most of Firefox's customers) are casual pyrotechnists who do not currently require a federal license to legally pursue their hobby (see above). For them the hassles (e.g., storage/magazines/inspections/logs), expense and difficulty of acquiring and maintaining a federal license are either impossible to deal with or simply not worth it. The ranks of hobbyists will diminish (as the CPSC grins with glee), and the market for even the chemicals that Firefox could still legally sell will diminish even more.
In a cruel example of a feedback mechanism, the foreseeable unavailability of any pyro chemicals in hobbyist quantities from anywhere acts as an additional deterrent to those currently unlicensed hobbyists who might decide to pursue licensure. Why bother if you won't be able to get your chemicals and supplies anyway?
In a final double-reverse-whammy-gotcha, (pointed out to me by one of my colleagues in the Florida club) those few remaining licensed hobbyists left standing once the dust from the CPSC vs. our vendors fight settles will soon find themselves without any licensed, permitted, and insured events left at which they can make and shoot the things they like to manufacture. This is because many pyro club members that aren't licensed will quit the pyro clubs in droves, and without their dues how do the pyro clubs meet the exorbitant cost of insurance?
Pretty picture, eh? This is our future if we don't act.
What is being done?
This must be stopped now. This is not about Firefox, it is about the survival of our hobby, but Firefox is the proverbial canary in the coalmine. If they fall, the likely path from there is all too clear. A legal team, John Brooke and Doug Mawhorr of Muncie, Indiana, has been assembled and they have been asked by the Purringtons to notify the CPSC that the case will proceed to litigation. Doug Mawhorr has provided an initial review and opinion of the legal ramifications of this case which is printed elsewhere in this issue of AFN.
What is needed now is money to support their defense and perhaps ultimately the defense of our other vendors.
No matter what happens from here on out, the one incontestably useful thing we can do now is to accumulate as large a war chest as possible. Whether the case proceeds to litigation, which seems very likely, or settles, competent legal representation and hired expert help are both indispensable and expensive. It remains remotely possible that the accumulation of a truly huge war chest (like multiple six figures) on our part could help prompt the CPSC to negotiate a settlement. If this case does proceed to litigation, the legal fees will skyrocket. Summary: Building the war chest is the most constructive thing we can do right now and it will be needed in almost any conceivable scenario.
The PGI has contributed $7,500.00 to date to the defense of this case, and the PGI Board has a motion before it as we speak for an additional legal defense grant of $5,000.00 for this matter. The Fireworks Foundation has donated $1,500.00 to date, with another $1500.00 virtually assured, and has established a “Chemical Defense Fund” so that contributions to the Fireworks Foundation can be earmarked for the defense of this case. Firefox itself has already expended considerable amounts of time and money in this effort and is preparing to spend yet more. Skylighter and others suppliers are being mobilized. Regional clubs are receiving the call to arms and several have already made generous donations. I have personally challenged my fellow PGI officers and John Steinberg with a matching donation. I’ll match whatever they put up personally between now and New Years up to an aggregate total of $500.00. Thus, the six of us will raise an additional $1,000.00. We’re all in this together, and we will sink or swim as one. It is time for amateur pyrotechnists to stand up and be counted.
John and I ask your help in this. We know the less-than-encouraging financial situation that many find themselves in right now, but considering the stakes, I encourage your consideration of a considerable contribution. In addition I would appreciate your help in raising funds in any other way you can devise.
The Fireworks Foundation is actively and centrally involved in this case. Indeed, its very existence is all that allows us to immediately have at our disposal a conduit for raising funds and disbursing them as required. Not only has the Foundation made a total of $3,000.00 in direct contributions, but, through the hard work and efforts of its Trustees, all the resources that can be brought to bear in this fight are being mustered. Without the Foundation, no means to coordinate a financial effort of this magnitude would exist. Thanks to the Fireworks Foundation, a legally secure means to receive the moneys, a tax deduction opportunity for donors, and a secure means to control, maintain, and disburse funds is at our disposal. This is what the Foundation was created to do and it is doing it well and responding admirably.
Any individual or organization can write a check in any amount they can afford to The Fireworks Foundation. Since the Fireworks Foundation is a 501.c (3), your contribution is tax deductible so long as you do not DIRECT the Foundation on how to use the monies. If you would like your donation to be tax-deductible, you may write on your check (in the Memo section) "For the Chemical Defense Fund or other purposes as required." That way you are not strictly telling the Foundation how to use the money. If you don't care about tax deductibility, you can write (in the Memo section) "For the Chemical Defense Fund" in which case the Foundation will be bound to use your money for that purpose.
[Editor's note: Donations can also be made electronically via the Fireworks Foundation website at www.fireworksfoundation.com.]
Checks should be payable to "The Fireworks Foundation" and mailed to:
14511 Olinda Blvd. N
Stillwater, Minnesota 55082
Thank you for listening and considering,
1st VP PGII
Proud member of Crackerjacks, FPAG, WPA.
Immediate Past-President, PGI
Proud Member of the CrackerJacks, the WPA, FPAG, the NWPAAA, and the Canadian Fireworks Association
Honorary Member: MPAG, NHPA, CPA
Details of CPSC Injunction against Firefox
The CPSC Injunction against Firefox would require them to:
“Not sell, give away, or otherwise distribute any chlorate compound, magnesium metal, permanganate compound, peroxide compound, zirconium metal, or any chemical listed at 16 C.F.R. § 1507.2 to any recipient who does not possess a valid manufacturing license for explosives issued by the ATF;
Not sell, give away or otherwise distribute any of the following chemicals for which the particle size is finer than 100 mesh (or particles less than 150 microns in size) to any recipient who does not possess a valid manufacturing license for explosives issued by the ATF: aluminum and aluminum alloys, magnalium metal, magnesium/aluminum alloys, titanium and titanium alloys, or zinc metal;
Not sell, give away or otherwise distribute any of the following chemicals in an amount greater than one pound per year per recipient to any recipient who does not possess a valid manufacturing license for explosives issued by the ATF: antimony and antimony compounds, benzoate compounds, nitrate compounds, perchlorate compounds, salicylate compounds or sulfur;
Not sell, give away or otherwise distribute any fuse in an amount greater than 25 feet per year per recipient who does not possess a valid manufacturing license for explosives issued by the ATF”
In addition, the injunction requires extensive record keeping (photocopies of drivers licenses and, if applicable, ATF licenses for all recipients, as well as detailed invoices maintained for at least seven years) and requires Firefox’s agreement to provide those records to CPSC at any time on demand.