CPSC Votes Lawn Dart Ban

The Consumer Product Safety Commission has approved a ban of certain types of lawn darts that present an unreasonable risk of death or serious injury. The action, which covers those darts capable of causing skull punctures, was approved by CPSC Chairman Terrence Scanlon and Commissioner Anne Graham. Commissioner Carol Dawson voted against the provision.

Three children -- ages 4,7, and 13 -- are known to have died in lawn dart-related incidents. An estimated 670 lawn dart injuries are treated each year in U.S. hospital emergency rooms. Three quarters of the injured are under 15 years old. The types of lawn darts associated with the three deaths will be banned by the CPSC action.

The motion approved by the Commission authorizes the ban under the Consumer Product Safety Act and the Federal Hazardous Substances Act. A draft Federal Register notice to propose the rule will be presented to the Commission by June 30.

The Commission published an Advance Notice of Proposed Rulemaking (ANPR) on Oct. 20, 1987, warning that it might either require the five labeling and marketing actions earlier requested of industry or ban the sale of lawn darts. On March 2, 1988, the Commission directed the staff to prepare a Notice of Proposed Rulemaking -- the second step in the congressionally-mandated three stage rulemaking process. Comments from the public are encouraged.

The Commission has also initiated litigation against two retail distributors of lawn darts. The CPSC entered into a consent decree with more of the defendants, Sears, Roebuck and Company, on March 30, 1988, in which the company agreed to stop selling lawn darts in all its U.S. outlets. A consent decree with Menard's, a Wisconsin-based retail chain, is currently being negotiated. In addition, an extensive survey of the nation's lawn dart retailers is currently under way.

According to Wednesday's motion, the ban will concentrate on lawn darts with a tip that are intended to stick in the ground, as well as those that otherwise have a potential for causing skull puncture injuries from "reasonably foreseeable use or misuse." Those lawn darts which do not cause skull punctures will be exempted.

A vote on the proposed rule is expected in early July.

For more information, call the CPSC Office of Information and Public Affairs at (301) 492-6580.

Lawn Dart Statement of Chairman Terrence Scanlon
May 25, 1988

I am pleased the Commission has agreed to rid the marketplace of unsafe lawn darts while leaving safer varieties available to American consumers. The action taken today will remove those darts capable of causing skull penetration injuries --while not affecting non-hazardous types, which have been included in earlier regulatory proposals. I have pursued this kind of resolution previously and believe the remedy approved today is entirely reasonable.

The current regulations precluding the sale of lawn darts in toy stores and toy departments and requiring precautionary labeling have been on the books since 1970 when they were adopted by the Food and Drug Administration (FDA). While the most recent death associated with lawn darts did not involve a violation of those regulations, a subsequent study indicated that they were not being adhered to with sufficient frequency. As a consequence, the Commission promptly asked the industry to improve the labeling of lawn darts, stop marketing them in conjunction with other games and redesign them to prevent edification in order to reduce the hazard they present to young children. That action was soon followed, in October 1987, by publication of an Advance Notice of Proposed Rulemaking in which those potential remedies were presented, along with the possibility of a total ban. Subsequently, the Commission decided to proceed with a Notice of Proposed Rulemaking on these options, plus it directed that legal action be taken against repeat offenders of the current lawn dart regulations. Then, on March 30, 1988 the Commission announced that Sears Roebuck and Co. had agreed to stop selling lawn darts in its stores to settle a complaint that it had been in violation of those existing regulations.

This series of actions clearly indicate the Commission's timely and continuing determination to deal with any dangers that may be associated with lawn darts. However, the current estimate of 670 people per year being treated in hospital emergency rooms for lawn dart-related injuries, suggests that development of a safer lawn dart is desirable. The proposal adopted today will further that objective without necessarily depriving senior citizens and others of the enjoyment associated with recreational use of lawn darts. And because of the specificity of our solution, I feel confident that it could withstand a court challenge. The Commission has detailed a permanent solution to this safety problem, and has thus acted in the public interest.

Opinion of Commissioner Carol G. Damson
Regarding Commission Action to Ban Lawn Darts
May 25, 1988

From the start of my service on the Commission, I have advocated using the "least drastic means" to achieve public safety goals. In the case of lawn darts, for example, I have already voted, in an earlier public session, to impose more stringent regulatory requirements on the manufacturers and distributors of lawn darts. The Commission also instructed its compliance and legal staffs to step up enforcement of existing regulations.

Now, a new proposal to ban the product is before us. Such federal regulatory decisions are difficult at best. When the tragic death of a young child is involved, they become even more difficult.

Our statutes require that certain criteria be met in regulatory activities. When such criteria are met, I do not hesitate to use the full power of the law when I believe it is in the public interest.

But we as Commissioners must keep in mind the nature of the power we wield. Whenever we regulate, we limit freedom in some way. Moreover, our decisions affect all Americans.

As a consumer, I would not purchase or use the kind of lawn darts which are the target of the proposal before us. If I were a manufacturer or a retailer, I would not produce or sell them. Yet, I am not prepared to make that absolute choice for every other American.

To ban a product is to take the most extreme sanction which this body can take. Such a tool should be used sparingly, and only after every other means has been advanced to reduce the risk of injury. In my judgement, in this case, all other means have not been thoroughly-pursued:. Based on my understanding of our statutes, and in keeping with my philosophy of limited government, I prefer the implementation of the remedies previously adopted by the Commission.

Statement by Anne Graham, Commissioner
Decision to Ban Lawn Darts
May 25, 1988

The Chairman indicated at a briefing last week that he is willing to support a motion to prohibit lawn darts similar to the motion I offered in March. Since last week, the Chairman and I have discussed this issue further and I will offer a motion today which the Chairman has agreed to support that will propose to ban lawn darts. I am extremely pleased that the Commission is finally taking the action it should have taken months ago. My only regret is that because of the lack of a second vote in March we did not pass this motion sooner.

As I have consistently stated the limited value lawn darts may have as a recreational product is far outweighed by the number of serious injuries. From January, 1978 to December 1986 lawn darts were responsible for an estimated 6,100 hospital emergency-room treated injuries. Approximately 81% of the victims were under 15 years old, and 50% were under the age of ten.

In 1970 the Food and Drug Administration (FDA) published a proposal which consisted of an absolute ban on lawn darts. After being petitioned, the FDA compromised and passed a conditional ban. Lawn darts were to be kept out of the hands of children by marketing them only to adults as a game of skill and with warning labels. Nonetheless, lawn darts are still being sold in sporting good stores where unsuspecting parents buy them for their children. Today, after 3 deaths and more than 6,000 injuries it is clear that this measure designed to ensure safety has failed. The conditional ban has not worked.

Today's motion, as did my March 2, 1988 motion, authorizes a Notice of Proposed Rulemaking to ban lawn darts. The language of the notice should make it clear that lawn darts causing puncture wound injuries are banned totally. The notice will exclude those products which, for sample, do not have pointed tips, are not intended to stick in the ground, and thus do not have the potential to cause puncture wounds.

I believe that when the Government acts it should do so reasonably and responsibly. In the case of lawn darts, eighteen years of history shows us that the original proposal to ban lawn darts was correct...

Today's motion recognizes that the conditional ban has not marked and that the original 1970 proposal to ban lawn darts was the right one. believe that this measure is prudent, necessary and will correctly I address the public interest.

Statement on Lawn Dart Decision
Anne Graham, Commissioner
March 2, 1988

I dissented from the Commission's decision to implement certain non-regulatory actions with regard to lawn darts because I believe these actions will not adequately reduce the hazard presented to children by this product. Based on the information provided by the Commission's directorates with technical expertise on this issue, I believe the only remedy that will address this hazard is a revocation of the exemption to the ban of lawn darts for use by children. The Commission's technical staff has concluded that efforts to market lawn darts for adult use only (such as those contained in the current banning regulation) do not prevent use by children. Thus, the sales prohibition and labeling provisions in the current mandatory standard, either alone or in conjunction with the five actions requested of the industry by the Commission and authorized by the Commission today, cannot be expected to accomplish their intended purpose -- namely to prevent potential serious injuries from lawn dart use by children.

The motion I offered today would have authorized a notice of proposed rulemaking to ban lawn darts, but at the same time make clear that if a firm develops a product which does not present a puncture hazard to children, the firm can applv for an exemption from the ban. The staff believes this course of action is an effective allocation of Commission staff resources and cost effective. Of equal importance, I believe this course of action is reasonable and responsible and would result in the nest expeditious relief to consumers.

Anne Graham, Commissioner
March 2, 1988