Citing “difficulties engendered in significant part by a lack of adequate technical justification for provisions or proposed provisions concerning the regulation of retail sales off consumer fireworks”, the NFPA Standards Council has seemingly undertaken a broadside attack on retail fireworks sales. This assessment is found in the Standards Council Decision (Final), D#08-19 (the “Decision”), dated July 24, 2008; inexplicably, the Council never describes the other ‘part(s)’ to its determination (as if it is insignificant). In any event, the Decision should have set off an alarm to the fireworks retailing industry to gather all information and documentation relating to the formulation, performance and documentation of testing protocols, preferably administered by testing laboratories and experts with unimpeachable and unassailable reputations. To that end, the NFPA Technical Committee has already convened various meetings and, at press time, is in Orlando, Fla. to continue its efforts; another article describing the current state of affairs is likely to be the topic of a future article on the subject.
The Decision highlights the NFPA’s concerns regarding fire safety in consumer fireworks and retail facilities and, in the process, the Council cites a report presented by the Fire Protection Research Foundation (the “Foundation Report”). Interestingly, the Council expressly gave the conclusions contained in the Foundation Report “significant weight”, presumably solely upon the basis that no other report was before it to review, as opposed to commenting upon its credibility and reliability.
Seemingly, the Council is willing to accept standards and determinations without consideration of credibility and reliability by wholesale reliance upon the Hazard Report and, yet, the Council argues that the “NFPA does not wish to be associated with sustaining a weak standard.” The NFPA’s positions are contradictory, leading a reasonable person to conclude that the NFPA may not be fair-minded in refining and extending NFPA 1124.
The Foundation Report is entitled, Literature Review: Fire Safety In Consumer Fireworks Storage And Retail Facilities- Hazard Assessment, and it was prepared by Schirmer Engineering Corporation of San Diego, California, and dated October 1, 2007. Accordingly, the Foundation Report is not an original product of the Fire Protection Research Foundation; rather, it had subcontracted the tasks to Schirmer Engineering and, in my opinion, the Foundation Report leaves much to be desired in terms of relevancy, reliability and credibility. Indeed, the Foundation Report expressly notes that all statements and conclusions contained within it are based upon a literature review (as its title expressly notes), as opposed to Schirmer Engineering having conducted independent tests and studies in a controlled environment. In brief, the report is premised upon anecdotal fact as opposed to empirical proof.
This author notes that in the Forward that accompanies the Foundation Report the NFPA expressly discloses that it had commissioned a “study to assemble research data related to the hazards associated with retail sale of consumer fireworks and identify research needed to develop appropriate facility fire safety provisions….[based upon] a review of available literature.” Here, Schirmer Engineering served in a limited capacity as fact gatherer, and nothing in the Foundation Report indicates that Schirmer Engineering undertook the additional task of independently verifying the validity of the information that it had assembled.
The information assembled in the Foundation Report is seemingly focused upon highlighting the most egregious examples of retail fireworks incidents. Significantly, the Foundation Report has been able to identify only 6 domestic incidents involving the storage and sale of consumer fireworks over a 33-year period; an average of one incident every 5½ years. The Foundation Report further hedges this figure (of 6) by revealing that “half of these incidents involved an unknown inventory of fireworks, which may have included consumer and display type devices as well as a number of other commodities.” To the extent that display and consumer fireworks are not found together in a retail environment, this risk has all but been eliminated.
Importantly, only one incident (of the six identified) involved a fatality and, in that instance, the sprinkler system had been disabled and a customer intentionally ignited a carton of fireworks inside the store during business hours. In my opinion, it is impossible for any business owner to prevent an intentional act by one of its customers or employees. Further, to the extent that public safety is of paramount importance to all constituencies, the Foundation Report’s disclosure of only one incident involving fatalities at a retail fireworks establishment is, in my opinion, a testament to the overall positive safety record of the industry. To its credit, the author of the Foundation Report states that “[t]his limited number of incidents over this time period implies a loss history that is quite favorable in relation to other fireworks related applications such as manufacturing and private consumer use yet this distinction is rarely made in the available literature.”
Against this background, it behooves the industry to be transparent and to retain experts that will produce written reports that are more comprehensive, credible and reliable than the Foundation Report. Although ambiguously worded, the Council did admonish unnamed representatives of the retail fireworks industry for failing to furnish the Council with “the full reports of tests that they assert have been conducted and completed. (italics added). The investment in unimpeachable industry test reports should also serve to enhance industry credibility and overcome the NFPA’s predisposition to rely upon the Foundation Report in formulating final determinations, and if necessary, for purposes of judicial review.
As the Council reasonably notes, the absence of “technical knowledge” and “reliable data” is not “a reason to forego development of standards.”, although, at the same time, the Council recognizes the rare situation where it declines to issue a standard due to an absence of technical knowledge (citing two examples where such an exception was, presumably, invoked). To summarize the NFPA’s position on the matter in my own words, a weak standard is better than no standard at all, except for consumer fireworks where no standard is better than a weak standard. In my opinion, the Council’s stated inconsistent positions should prompt the consumer fireworks industry, as well as fireworks consumers, to register their objections to the NFPA and challenge the Foundation Report.
PS: At the time of this writing, the U.S. Consumer Products Safety Commission issued a release delaying, until February 10, 2010, the effective date of the new testing and certification requirements under the Consumer Products Safety Improvements Acts of 2008.
