Legal Environment Surrounding the Injunction against Firefox
By Doug Mawhorr
By now I will assume that most pyros have heard about the Consumer Product Safety Commission’s (“CPSC”) civil lawsuit against Firefox Enterprises, Inc. I want to address a few legal aspects of this matter to answer the many questions I have fielded and many of the readers probably have themselves.
For those of you who do not know, there is a difference between the ATFE and the CPSC. Firefox is not regulated by the ATFE. The basis being as explained here: First, ATFE regulations and the Explosives Control Act deal only with the commerce and storage of explosives. The definition of an explosive includes anything on the Explosives list published by the ATFE. Nothing that Firefox sells is found on the Explosives List, absolutely nothing.
Second, nothing Firefox sells meets the definition of an explosive. For an item to meet the definition of an explosive, it MUST be either: 1) a chemical compound, 2) a chemical mixture or 3) a device of which the primary or common purpose is to function by explosion (or to explode). Firefox merely sells individual chemicals that can be combined to make an explosive. But the items Firefox sells are not explosives, explosive materials or found on the explosives list.
Therefore, because Firefox is not in the business of distributing explosives or explosive materials, the ATFE does not regulate Firefox. Firefox does not need an ATFE permit or license to operate its business.
The CPSC was created by Congress to reduce injuries to consumers caused by dangerous/hazardous products. Now with that said, how does the CPSC feel they can regulate Firefox? That answer is found in three sources. The first source is the Federal Hazardous Substance Act ("FHSA"). The FHSA is found at 15 U.S.C. 1261 et seq. The second source is the Consumer Product Safety Act (“CPS Act”). The CPS Act can be found at 15 U.S.C. 2051 et seq. The third source is the regulations of the CPSC. The specific regulations (as the CPSC has thousands) are found at 16 C.F.R. 1500 and 1507. The CPSC claims its ability to regulate Firefox derives from these statutes and regulations.
I will not go into the time and length to provide the CPSC view of their authority and my critique. But there are, in my view and opinion, serious flaws in the CPSC logic and interpretation of the FHSA and its regulations. Unfortunately, our system of laws is set up so that an agency's own interpretation of its regulations is valid unless you show it to be otherwise. You do that by convincing a court that the agency’s interpretation is arbitrary, capricious or without authority.
Here is my interpretation of the CPSC authority and basis for regulating pyrotechnic chemicals. First, the CPS Act and FHSA provide the CPSC the authority to regulate certain hazardous products that are a danger to consumers. Second, the FHSA defines a banned hazardous substance. Third, FHSA allows the CPSC to declare other hazardous substances to be banned hazardous substances. Fourth, the FHSA and Regulations instruct that certain consumer fireworks are exempt from the regulations. Fifth, Regulations of the CPSC ("Regs") declare certain non-consumer fireworks ("Illegal Fireworks") to be banned hazardous substances. Sixth, the Regs also declare the components and kits known or intended to produce Illegal Fireworks to be banned hazardous substances.
As I interpret the federal statutes (CPS Act and FHSA) and the Regs, the CPSC is trying to enforce the statutes and Regs where they have no authority to so act. The CPSC is attempting to regulate where no authority to regulate exists. Finally, the CPS Act, FHSA and the Regs allow for the legal manufacture, possession and use of fireworks (even those made with a metal powder fuel and strong oxidizer) as long as certain limitations of composition amounts are followed.
You can review the FHSA and the CPSC regulations I have cited and draw your own conclusions as to what the CPSC can and can not do. As for the supporting the "cause" of Firefox, this is not just about Firefox. Whether you want to believe it or not, this is about the hobbyist pyrotechnic industry. The hobbyist pyrotechnic industry includes: fireworks, rocketry (firework and experimental), chemistry, black powder users (cannoneers and self loaders that make their own), and anyone else who can not buy direct from the chemical manufacturers. The CPSC has targeted chemical suppliers for years. I have personally spoken to CPSC personnel and they have told me such. They will call chemical vendors to try to order and purchase "kits" and they have done so. Finally, as you look at the Regs, they allow for the manufacture of items that contain aluminum and perchlorate as long as they are not larger than either 50 mg or 130 mg. So for the CPSC to attempt to ban the components of any and all fireworks, when it is not illegal to have smaller versions, is arbitrary, capricious and not supported by fact or law.