A STATEMENT FROM HARRY GILLIAM PRESIDENT OF SKYLIGHTER, INC.
If you are a fireworks maker, and if you don't ever read another thing from us at Skylighter, read this one newsletter right now. It is absolutely critical.
This is not our usual newsletter. There is nothing for sale; no special offers; nothing new; no projects. Rather, it is about the most serious threat to hobby fireworks makers that you and I have ever faced. Put simply, it is quite possible you may never be able to make fireworks again in the US. Read this to find out what you can do to help.
Even if you are not a fireworks maker, but are a buyer of sparklers or consumer fireworks, I urge you to read this as well. You too should be vitally concerned. It is not at all inconceivable that eventually our ability to buy and use consumer fireworks in this country may come to a screeching halt. Even your ability to shoot a simple backyard show on July 4th could be seriously reduced by the CPSC's proposed limits on the sale of any fuse to you to 25 feet per year.
What this article is about is a litigation being brought by the US Consumer Products Safety Commission against a competitor of ours, Firefox. It constitutes the most serious threat to amateur fireworks making and using that I believe this country has ever faced. This legal action, if won by the government, could quite easily result in these consequences:
- Pyrotechnic chemicals and supplies vendors would disappear
- Your ability to make fireworks would grind to a halt once your supplies run out
- The Pyrotechnic Guild International would either disappear or be reduced to a place to shoot consumer fireworks once a year
- The regional US fireworks clubs would disappear
- Amateur rocketry manufacture would probably disappear
- Various booksellers, newsletter publishers, and other pyrotechnic related vendors would fold
I am not exaggerating this problem. If you know me, you know that I am not given to sensationalism or hyperbole in these sorts of situations.
If these consequences concern you, I urge you to read this newsletter right now. Time is of the essence.
The following article was crafted largely by Tom Handel, Vice President of the Pyrotechnics Guild International. It was previous published in American Fireworks News.
Harry Gilliam
President
Skylighter, Inc.
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Overview
A serious situation, which has been developing over the past year, has now reached a stage where action by - and a specific response from - our community of hobbyist pyros is necessary. In our considered opinion, this Consumer Products Safety Commission (CPSC) initiative constitutes the single greatest threat to amateur pyrotechnic manufacture in the United States that we have ever faced. It is an action that could well, for all practical purposes, end hobbyist pyrotechnics, as we currently know it.
The facts
On Monday, 29 November 2004, the United States CPSC served Gary and Diane Purrington of Firefox, an Idaho based supplier of pyrotechnic chemicals and supplies to the hobbyist community, with a Complaint for Injunction, the terms of which demand certain constraints on Firefox's sales of pyrotechnic chemicals. The details are below, but in summary, it forbids or very severely limits sale of all common oxidizers and many common pyrotechnic fuels to anyone who does not hold a manufacturing license from the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE).
A few days later we had our winter Crackerjacks (a mid-Atlantic fireworks club) meeting. John Steinberg (three-times past President of the Pyrotechnics Guild International
The next day I went to their web site and had a look for myself. It would appear they are still in business, but the pattern of chemicals, which they now no longer sell (e.g., any aluminum suitable for flash) and those that are "out of stock" bears an eerie resemblance to the CPSC list from the Firefox injunction as quoted below. The correspondence is not perfect, but it's close.
The next shoe fell about 9:00 AM on Tuesday, 14 December when Harry Gilliam at Skylighter received an un-announced visit from two representatives of the CPSC. They spent about five hours with him, asking lots of questions about "flash kits" and "boomers," and going through several boxes of Skylighter's sales records. They made copies of some materials to take away with them for further study (or evidence).
What does all this mean to you?
This is clearly a disaster for Firefox, but even more importantly, you may be one of the legion of non-federally-licensed hobbyist pyros out there legally manufacturing fireworks of various types who will be severely affected if the CPSC is successful. Here's how it works.
'Spose I'm a whistle rocket fanatic and I am not federally licensed. Assuming I'm over the age of 21 and can prove it, right now I can go to my friendly neighborhood Skylighter or Firefox and legally buy the makings of my whistle mix. I can get as much potassium benzoate, sodium salicylate, red iron oxide, potassium perchlorate, (and anything else I need) as my pyro appetite requires and my pyro budget will allow. I can legally preprocess these materials - mill, screen, weigh, and to a limited extent mix (so long as oxidizers and fuels remain separate and no pyrotechnically live material is created) - in my garage or basement or back yard. I can legally transport these materials to the site of a federally licensed manufacturer (say, the PGI or a regional club). Given appropriate permission from the licensee, I can then, under his license, legally mix my pre-processed materials to create my whistle mix, a pyrotechnically live composition (an explosive, if so defined). I can legally press my whistle rockets and fly them to my heart's content (given the licensee/club has the appropriate shooting permits).
Now lets look at this scenario (and it is only one of many possible) after the CPSC action. Most of it remains the same, but the critical first step, acquisition of the raw materials to pursue my hobby, has been rendered impossible. Firefox can only sell me one pound of potassium perchlorate, potassium benzoate and sodium salicylate per year. That isn't many four- pound whistle rockets. Fortunately, the CPSC will still permit them to sell me unlimited quantities of red iron oxide. (That's rust.) (That's a joke.) Even with all the things I can still legally do - processing and transporting materials, creating whistle mix at a licensed manufacturer's facility, building and shooting rockets - it is all for nothing since I cannot legally acquire enough of the necessary raw materials any more.
"So," you say, "too bad for Firefox, but ring up old Harry at Skylighter and get your materials from him instead. Or maybe that other mail order outfit in Pennsylvania."
Well, that other outfit seems to be "out of stock" on potassium perchlorate (as well as many other things). And Skylighter, well, that works for now, but the CPSC has already visited him, and given their historical, well-documented and unrelenting war on anything having to do with fireworks, it is, in our considered opinion, inevitable that Harry will not be far behind Firefox and the other outfit if the CPSC is successful. Armed with the precedents established with Firefox (and perhaps the other outfit), they will force Skylighter to accede to the same conditions.
But it gets much worse. Firefox has said (and I believe) that imposition of these restrictions will drive them out of the pyro-chemicals-in-hobbyist- quantities business. There is not enough business available from BATFE- licensed hobbyist manufacturers, to whom they can still sell legally, to keep them afloat. (Non-hobbyist manufacturers don't buy from Firefox - they go to Hummel-Croton or Service Chemical and buy their chemicals by the drum and pallet, not the pound.) The same argument will apply to the other outfit (perhaps already has) and Skylighter in turn, and the result will be that there are no longer any suppliers of any pyro chemicals in hobbyist quantities. Even though someone could legally sell me a pound of potassium perchlorate and sodium salicylate a year, there will be no one in business any more who will do so. Though oxidizers and metals will be the big problem, we'll be back to combing the drug store shelves and garden shops even for such mundane materials as sulfur.
"So," you say, "let's all just go get federally licensed and solve the problem that way."
It won't happen. Those in our community who are not now federally licensed (the vast majority - most of Firefox's customers) are casual pyrotechnists who do not currently require a federal license to legally pursue their hobby (see above). For them the hassles (e.g., storage/magazines/inspections/logs), expense and difficulty of acquiring and maintaining a federal license are either impossible to deal with or simply not worth it. The ranks of hobbyists will diminish, and the market for even the chemicals that Firefox could still legally sell will diminish even more.
In a cruel example of a feedback mechanism, the foreseeable unavailability of any pyro chemicals in hobbyist quantities from anywhere acts as an additional deterrent to those currently unlicensed hobbyists who might decide to pursue licensure. Why bother if there won't be any vendors out there to sell you your chemicals and supplies anyway?
In a final double-reverse-whammy-gotcha, (pointed out to me by one of my colleagues in the Florida club) those few remaining hobbyists left standing once the dust from the CPSC assault on our vendors settles will soon find themselves without any licensed, permitted, and insured events left at which they can make and shoot the things they like to manufacture, even if they can find a way to get the chemicals and supplies. This is because pyro club members, unable to pursue their hobby any longer, will quit the pyro clubs in droves. Without their dues revenues how do the pyro clubs meet the exorbitant cost of insurance and other expenses?
Pretty picture, eh? This is our future if we don't act.
What is being done?
This must be stopped now. This is not about Firefox; it is about the survival of our hobby. But Firefox is the proverbial canary in the coalmine. If they fall, the likely path from there is all too clear. A legal team, John Brooke and Doug Mawhorr of Muncie, Indiana (specialists in fireworks law and regulation), has been assembled, and they have been asked by the Purringtons at Firefox to notify the CPSC that the case will proceed to litigation. Doug Mawhorr has provided an initial review and opinion of the legal ramifications of this case, which is printed below.
What is needed now is money to support their defense and perhaps ultimately the defense of our other vendors. No matter what happens from here on out, the one incontestably useful thing we can do now is to accumulate as large a war chest as possible. Whether the case proceeds to litigation, which seems very likely, or settles, competent legal representation and hired expert help are both indispensable and expensive. It remains remotely possible that the accumulation of a truly huge war chest (like multiple six figures) on our part could help prompt the CPSC to negotiate a settlement. If this case does proceed to litigation, the legal fees will skyrocket. Summary: Building the war chest is the most constructive thing we can do right now and it will be needed in almost any conceivable scenario.
The PGI has contributed $7,500.00 to date to the defense of this case, and the PGI Board has a motion before it as we speak for an additional legal defense grant of $5,000.00 for this matter. The Fireworks Foundation has donated $1,500.00 to date, with another $1,500.00 virtually assured, and has established a "Chemical Defense Fund" so that contributions to the Fireworks Foundation can be earmarked for the defense of this case. Firefox itself has already expended considerable amounts of time and money in this effort and is preparing to spend yet more. Skylighter and others suppliers are being mobilized. Regional clubs are receiving the call to arms and several have already made generous donations. I personally challenged my fellow PGII officers and John Steinberg with a matching donation. I promised to match whatever they put up personally by New Years up to an aggregate total of $500.00, and I'm delighted to say I sent in my full $500.00 donation last week. We're all in this together, and we will sink or swim as one. It is time for amateur pyrotechnists to stand up and be counted.
We ask your help in this. We know the less-than-encouraging financial situation that many find themselves in right now, but considering the stakes, I encourage your consideration of a considerable contribution to the Fireworks Foundation/Chemical Defense Fund. In addition I would appreciate your help in raising funds in any other way you can devise.
The Fireworks Foundation is actively and centrally involved in this case. Indeed, its very existence is all that allows us to immediately have at our disposal a conduit for raising funds and disbursing them as required. Not only has the Foundation made a total of $3,000.00 in direct contributions, but through the hard work and efforts of its Trustees, all the resources that can be brought to bear in this fight are being mustered. Without the Foundation, no means to coordinate a financial effort of this magnitude would exist. Thanks to the Fireworks Foundation, a legally secure means to receive the moneys, a tax deduction opportunity for donors, and a secure means to control, maintain, and disburse funds is at our disposal. This is what the Foundation was created to do and it is doing it well and responding admirably.
Any individual or organization can write a check in any amount they can afford to The Fireworks Foundation. Since the Fireworks Foundation is a 501.c (3) [non-profit Federal tax status], your contribution is tax deductible so long as you do not DIRECT the Foundation on how to use the monies. If you would like your donation to be tax-deductible, you may write on your check (in the Memo section) "For the Chemical Defense Fund or other purposes as required." That way you are not strictly telling the Foundation how to use the money. If you don't care about tax deductibility, you can write (in the Memo section) "For the Chemical Defense Fund" in which case the Foundation will be bound to use your money for that purpose.
Checks should be payable to "The Fireworks Foundation" and mailed to:
Mike Swisher, Treasurer-Fireworks Foundation, 14511 Olinda Blvd., N. Stillwater, Minnesota 55082
As an alternative, the Fireworks Foundation web site at
Thank you for listening and considering.
Details of CPSC Injunction against Firefox
The CPSC Injunction against Firefox would require them to:
"Not sell, give away, or otherwise distribute any chlorate compound, magnesium metal, permanganate compound, peroxide compound, zirconium metal, or any chemical listed at 16 C.F.R. =A7 1507.2 to any recipient who does not possess a valid manufacturing license for explosives issued by the ATF;
Not sell, give away or otherwise distribute any of the following chemicals for which the particle size is finer than 100 mesh (or particles less than 150 microns in size) to any recipient who does not possess a valid manufacturing license for explosives issued by the ATF: aluminum and aluminum alloys, magnalium metal, magnesium/aluminum alloys, titanium and titanium alloys, or zinc metal;
Not sell, give away or otherwise distribute any of the following chemicals in an amount greater than one pound per year per recipient to any recipient who does not possess a valid manufacturing license for explosives issued by the ATF: antimony and antimony compounds, benzoate compounds, nitrate compounds, perchlorate compounds, salicylate compounds or sulfur;
Not sell, give away or otherwise distribute any fuse in an amount greater than 25 feet per year per recipient who does not possess a valid manufacturing license for explosives issued by the ATF."
In addition, the injunction requires extensive record keeping (photocopies of drivers licenses and, if applicable, ATF licenses for all recipients, as well as detailed invoices maintained for at least seven years) and requires Firefox's agreement to provide those records to CPSC at any time on demand.
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 BATFE and the CPSC. Firefox is not regulated by the BATFE. The basis is explained here. First, BATFE 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 BATFE. 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 BATFE does not regulate Firefox. Firefox does not need a BATFE permit or license to operate its business.
The CPSC was created by Congress to reduce or eliminate 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 take 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 cannot do. As for 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 cannot 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.
So here's the deal. Firefox is a competitor of Skylighter's. But a friendly competitor. This is a microscopic industry. We all talk to each other; we all help each other out in various ways. We have for years. I know Gary and Diane Purrington. They are friends of mine. We go way back. They have been in this business longer than I have. Gary knows more about Federal regulations regarding sale, transport, storage, and manufacture of fireworks than anyone I know. He is not stupid. He is not greedy. He is not, to my knowledge, a willful law-breaker. Quite the contrary: on more than one occasion, when I was first getting started with Skylighter, it was Gary who would contact me and point out something we were doing which might not have been legally or regulatorily kosher. He was showing me how to be in compliance and how to stay out of trouble.
But now Gary finds himself with a legal action being brought against him in Federal court. Federal Court. Let that sink in for a minute. Federal Court, with all of its mighty resources. This action, should the government succeed, will absolutely put Firefox right out of business. Guaranteed. And this action, if the government succeeds, will set a precedent, which can then be applied, to all other vendors. And then there will be no more pyro supplies vendors. Because chemical sales are the backbone of the whole fireworks making hobby. Choke off the chemicals, and every other vendor connected with hobbyists will be gone. And so will go the clubs.
And that is why we must win this case. And to win this case is going to take many, many, many thousands of dollars. Your dollars. I can't afford the legal fees, and I think we're bigger than Firefox. Firefox can't afford the fees. Our businesses are just too small, too lean to be able to foot the bill on our own. So, my good customers, it is going to be up to you folks. You are gonna have to pay if you wanna stay in the fireworks game. It will be only through your generosity that we can all support the Firefox legal case. Please give as generously as you can.
Finally, a special request. It would be a huge help to us here at Skylighter and at Firefox if you can refrain from calling us with your concerns and questions about the case.
The good folks at both companies have been swamped with calls and questions. We simply don't have the hours in the day to handle all of your calls about this case. I know, I know. Here I am asking you to give money, and on the other asking you not to talk to me about it. But, honestly, both companies are very small, and everybody here has about two jobs to do every day, even without the legal fight looming.
If you have read this special newsletter, you now know as much about this case as I do. And as I get more information, I will continue to publish it, and keep you up to date.
Last, but not least, the question I am asked most often: "Should I stock up? If supplies are going to go away, should I buy as much as I can right now and build up a supply?" Honestly, I can't answer that. On one hand, the answer is obvious. But on the other, if we win this case-and I firmly believe we can-then you may not need to stock up. You'll have to make your own decisions on stocking up.
Thank you for reading this. I am sorry it is not my usual light and cheerful hucksterism. But if we all pull together, I am convinced we can help Firefox to win.
Tired of reading yet? Well, quit readin' and go out and LIGHT something! Harry Gilliam -- Chief Cook & Bottle Washer Skylighter, Inc.