September 24, 2019

I am disappointed that the Commission was not able to reach any consensus on the staff’s recommendations for amending our fireworks regulations.  Although the audible effects test—also known as the “ear test” – has been upheld by the courts, the staff has worked for years to replace it with a more objective standard.  That was a central objective of the package before us, which recommended limits on fine-mesh metals as a substitute for the ear test.  Unfortunately, the staff did not provide adequate justification for the specific quantitative limits they proposed. 

The staff also failed to justify the new pyrotechnic limits they recommended.  Some proponents have suggested that these limits are necessary to address recent increases in fireworks deaths and injuries.  They make no showing, however, that the injuries or deaths are being caused by fireworks that comply with our current regulations.  Regrettably, we still often find overloaded fireworks being imported and sold.  Tightening our regulations will not solve that problem.  It is like lowering the speed limit in an area where there is already too much speeding.

I also hear the argument that these pyrotechnic limits are no big deal because they are already being complied with by many fireworks manufacturers.  I am not convinced on this point.  The staff’s recommended break-charge ratio, for example, appears to be significantly stricter than the prevailing industry standard.  The staff package appears to show that this limitation alone would outlaw many aerial devices that meet our current standards.

Finally, I wish to address the notion that it would not be expensive to comply with the recommended pyrotechnic limits.  It is logical, of course, that if you use less of an ingredient, the end product may be cheaper to make.  But this ignores the fact that some changes to a product will reduce or even ruin its appeal to consumers.  That is a real cost that should also be recognized.  If there are real safety benefits to be gained, then the additional cost may be justified, but that showing has yet to be made.

Unfortunately, the effect of today’s vote is to leave the oft-criticized ear test in place for now.  I hope the staff will continue to seek a solution to this longstanding problem.