Teddy Bang Bang
The Coming Fight Over Firearm “Product Safety”

by Sean Oberle
Dischord@KeepAndBearArms.com

If you haven't seen it yet, I urge you to check out Violence Policy Center's scare poster, which ominously points out that teddy bears must comply to more federal safety standards than do firearms – in fact, warns VPC, guns face zero federal standards.

Now this bit of propaganda is, on its face, rather easy to dispose of. Chain saws also must comply with zero federally mandated standards. Indeed, most items that fit under the definition of "consumer product" are not subject to federally mandated safety standards. The difference is due to the fact that teddy bears are intended for frequent and intimate contact with infants and small children, while most people typically do not place chain saws, toasters or firearms in the bassinet for junior to cuddle. 

But laying aside VPC's overly simplistic posturing, we know that the grabbers will be increasing their "product safety" strategy. And in order to understand it and possibly counter their overreaching, we gun rights activists need to have a working understanding of product safety in the United States and how firearms should and should not fit into that. As it stands now, I'm afraid, most RKBAers, indeed most Americans, have a simplistic understanding that allows VPC's teddy bear propaganda to appear sensible.

Do the grabbers intend firearm product safety regulation to be a Trojan Horse? Absolutely. But my essay is not to warn you of that, so I’ll just give you the highlights: The most recent attempt -- The Firearm Safety and Consumer Prevention Bill -- would have given the government “product safety” authority to “recall” guns for too much use in criminal activity, homicide and suicide.

Such authority would give the government power to restrict sales of firearms without further legislation. Once enacted, the grabbers would no longer have the hard battle of getting enough votes in Congress each time they wanted action. Rather, they would have to convince only a handful of bureaucrats. 

Such circumvention of the political process is to be resisted. But we may see movement toward such government power whether we want it or not, and we must be prepared to mitigate its negative impact on our rights. Thus, I'll try to provide some context to help. A bit of background: I have over a decade's experience reporting on, writing about, editing others' writing on federal product safety regulation. 

To understand what’s coming, it’s important to understand where we’ve been, which means understanding that U.S. safety regulation is not “one size fits all.”  Different products are regulated in different ways due to their different natures.

APPROVAL POWER

Government approval of products is rare power. The Food and Drug Administration has it for pharmaceuticals, biologics and medical devices, but that is because these items must safely interact with the body.

There are two types of approval – government approval and third-party approval. Traditionally, especially in the United States, the government directly tests each design. More recently, especially in Europe, third-party approval has arisen. This means that the government certifies private testing labs, which in turn do the actual approving. The reason for third-party approval is to save the government money – it costs less to certify a limited number of labs than to test multitudes of products.

Is this possible for firearms in the United States? You bet. Third party approval is occurring with handguns in California right now. By Jan. 1, 2001, handgun manufacturers must get their products certified for manufacture, importation or sale within the state. As of this writing about a month before that date, only 111 models by seven companies have received state certification.

Because approval authority gives the government the most power to impede our access to firearms, we would have to consider a national law along those lines a worst-case scenario, especially if it were to include the broad definition of “safety problem” in the most recent national attempt – prevalent use in crime, homicide and suicide.

The best argument against this worst-case scenario reveals itself by going back to the reason that the U.S. government got approval powers in the first place. Pharmaceuticals, medical devices and biologics must interact with – indeed enter – human bodies, and not only do so safely, but actually improve those bodies. That’s certainly not the case with guns.

MANDATORY STANDARDS

The next level down is that of mandatory standards. Relatively few products are subject to mandatory standards. For, example, of the approximately 15,000 types of products that the Consumer Product Safety Commission has power to regulate, only a few dozen must meet mandatory standards.

A mandatory standard is one that the government itself sets. However, unlike with approval requirements, the company does not have to get the government’s permission before manufacture and sale. Instead, the government sends its agent out to stores to purchase and test the products to keep the manufacturers honest.

Most of the few dozen products for which CPSC mandates standards are related to children’s products – such as those teddy bears – or have proven capable of spreading residential fire. 

While mandatory standards would be better than approval requirements for guns because the government would not be able to bottleneck access, we still ought to oppose such federal power. Just like with approval, we need to point out that firearms do not rise to the level of products that typically get mandatory standards. In other words, they are not teddy bears.

VOLUNTARY STANDARDS

A bit less restrictive than mandatory standards are voluntary standards. The first step in understanding voluntary standards is to recognize the misleading confusion of the term itself. Compliance with voluntary standards is not “voluntary.” A manufacturer has no real choice whether to comply, as failure to do so will bring government sanctions, often in the form of lawsuits.

Rather, a particular industry “voluntarily” comes up with the standards without the government mandating precisely what they are. Get it? Nothing mandated by government equals “voluntary.” However, the government has proven very capable in applying vast amounts of pressure when these standards are under development to get exactly what it would have mandated itself.

The government’s biggest leverage in the voluntary standards process is the threat of mandatory standards. CPSC, for example, has the power to bring mandatory standards upon a product type if it determines that the industry’s voluntary standards are not sufficiently addressing a safety concern. 

While this may seem at first glance to be no different from mandatory standards insofar as the effects it produces, it actually works to give an industry more maneuvering room. Essentially, voluntary standards put the burden of proof on the government to show that it must take action, rather than simply giving it free rein and saying, “go at ‘em boys.”

Of course, once you factor out those non-safety problems, then you have to ask whether guns really need any government safety action at all. The problems associated with (not due to) guns are not caused by design or manufacturing problems, but to poor behavior, and as a society we’ve shown great ability to address such misuse – be it lowering the accident rate year after year for decades or lowing the firearm homicide rate by nearly 50% in less than a decade.

The best argument against voluntary standards is that government money would be better spent addressing the true problems associated with firearms – misuse – and those are mostly criminal and mental health problems.

But be warned: there are two philosophies about the need for standards – one which states that manufacturers are not responsible for people who misuse their products and the other which states that manufacturers have a product safety responsibility to account for misuse in their design. You can see how this debate applies to such devices as trigger locks, which could be the camel’s nose that begins the whole process of government product safety regulation of firearms.

RECALL POWER

There are two types of recall power. Some government agencies have power to order companies to pull their products from the shelves. Other agencies, like CPSC, simply have power to negotiate recalls. What this second power means is that the government can only bring suit against a company for violating certain laws associated with selling unsafe products. In reality, there is little difference between the two powers; the government comes to the company and says “recall.”

Few companies will risk the bad press and financial cost of defending a lawsuit to defy that request; if the company won’t recall, then it is selling an unsafe product and the government can sue it. While a company defying a recall order is technically not being punished specifically for refusing to do the recall, the effect is the same.

To be fair to both sides, in most cases, the companies actually are conducting needed recalls, but nearly all companies have the responsibility to conduct those recalls regardless of the government. In fact, most companies that get in trouble with CPSC over recalls do not get there due to their refusal to conduct recalls, but due to their failure to comply with the law that says they must report safety problems in a timely fashion to CPSC. Indeed, some companies have actually gotten into trouble because they conducted recalls and then CPSC found out about it after the fact.

Again, just like with presale standards, the best argument is to ask whether any post-sale recall power is truly needed. Most problems with guns are not due to defects, but to misuse or abuse. But as with standards, the side that believes companies must account for misuse will see work for themselves here – especially if they get that absurd mandate that criminal misuse and suicide are “product safety problems.”

BAN POWER

This power lets the government forbid sale of total product types – not just those that fail to meet standards – because the government decides that the product type cannot possibly be designed to meet a minimum level of safety. Remember lawn darts from about 20 years ago? You don’t see them because CPSC banned them. There was no way to design them so that they could come straight down and stick in a lawn but not be able to come straight down and stick in a person.

It is this power to ban which is especially troubling if you couple that power with the grabbers’ alleged intent to address crime, homicide and suicide with product safety. For example, because any handgun is impossible to “improve” so that it is not concealable and thus useful in crime, it is conceivable that a gun regulatory agency could ban them outright. And I suppose you theoretically could make a shotgun long enough to make it unusable in suicide, but imagine trying to maneuver it through the woods on your next hunting trip. So much for “we don’t want to take away your hunting weapons.” 

Frankly, I would take the firmest no-compromise stance against any ban power, arguing that due to the intended deadly nature of firearms, the power to ban firearms would be open to abusive interpretations. No government agency should get ban power over firearms, but rather each ban fight should be slugged out one by one in the political arena.

LIABILITY

There are two types of liability. The bad version is that which has been getting much press in recent years – the courtroom assaults against gun makers for misuse of their products in crime and suicide. You already know the problems with that tack – it’s like suing Ford or Chevrolet for drunk driving. This misguided attempt to deal with the issue of the criminal misuse of guns misdirects blame and should be resisted on principle.

The good version is the type of product safety protection that I actually support for guns. Indeed, it’s what we already have. If a company’s failure to manufacture a quality product leads to injury or death, the company bears liability, plain and simple, and the injured person or the dead person’s survivors have the right to sue. But product liability needs to be limited to design or manufacturing defects – say barrels that can explode upon firing – and not include such absurdities as usability in crime. Unless we wish to encourage lawsuits against knife-makers, rope makers, the auto industry and any other industry whose products are used criminally and thus open a courtroom fiasco of monumental proportions, this approach must end completely and immediately.

Indeed if we can work the grabbers back down to liability only for defects, then we will have resisted the Trojan Horse. We’ll have maintained the status quo. The position we take is not only fair, rational and sound, a number of judges have sided with us. May there be more, and soon.

Sean Oberle is a featured writer with KeepAndBearArms.com whose archive is kept here: http://www.KeepAndBearArms.com/Oberle.  Distribution permitted and encouraged. Please say you saw it first on KeepAndBearArms.com. You can contact Mr. Oberle at Dischord@KeepAndBearArms.com.