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CPSC Sues to Force BB Gun Recall

NRA calls action politically motivated

TUESDAY, Oct. 30, 2001 (HealthDayNews) -- In a highly unusual move, the U.S. Consumer Product Safety Commission (CPSC) filed an administrative lawsuit today to force a manufacturer to recall 7.5 million BB guns.

The CPSC wants the Daisy Manufacturing Company of Rogers, Ark., to recall high-velocity Powerline model 880 and model 856 air guns, contending that they are dangerous. BBs can become lodged in the magazine of the gun, even though the gun sounds and looks empty, the CPSC alleges, adding that the weapons do not have automatic safety mechanisms. (They do have manual safety buttons.)

The CPSC says it knows of at last 15 deaths and 171 "serious injuries" resulting from use of the guns. Eighty percent of those killed were children under 16, even though high-velocity BB guns bear labels stating, "Warning! Not a toy!" The agency believes it would cost $2 per airgun to correct the defect and add an automatic safety device.

Corporations almost always voluntarily recall products that the CPSC deems to be defective. This case, however, was an unusually controversial one. The product's maker refused to voluntarily recall the BB guns, and the National Rifle Association joined the fray by vigorously denouncing the ruling and criticizing CPSC Chairman Ann Brown, whose last day in office is tomorrow.

"They're recalling a product because of human error," says Jason Osborne, federal liaison for the NRA. "With firearms, one of the basic safety rules is never point a gun at anybody unless it's in self-defense. And in this case, I don't think there's any excuse for somebody pointing a gun at somebody else because they think it's unloaded."

Osborne is referring to a two-year-old incident that spurred the CPSC's investigation. On May 22, 1999, John Tucker Mahoney of New Hope, Pa., and a friend, Ellsworth Weatherby IV, were shooting the model 856 Powerline Mahoney had received two days earlier for his 16th birthday. Thinking the gun was empty, Weatherby took aim and fired at Mahoney's head from close range. The rifle let loose a BB, which penetrated Mahoney's skull and severed an artery in his brain, leaving him unable to walk, talk or eat. Mahoney, now 18, sued Daisy, and settled for $18 million earlier this year.

The CPSC does not have jurisdiction over firearms. Air rifles are not considered to be within this category, however, because they use compressed air instead of gunpowder. Nevertheless, the NRA fears the ruling could have an impact on firearms.

"The alleged defects that they are claiming on these high-powered air rifles are very similar to firearms. Ninety-eight percent of firearms do not have automatic safeties," says the NRA's Osborne. "We are worried about overzealous lawyers out there who will look at this investigation and see a way to get at the firearms industry by amending the current lawsuits to say it's a defective product because it doesn't have an automatic safety."

The NRA is also accusing CPSC's Brown of using this high-profile recall on her second-to-last day in office, to jumpstart a new career. "We see this as a way for her to start her nonprofit with a bang," claims Osborne. "This has been a purely emotional investigation from our standpoint." The NRA says that not only did Brown express her opinions in public before the vote took place, she also distributed a charged videotape of Mahoney to the CPSC commissioners and their staff

. "I don't see what the point of sending the videotape around was except to really touch somebody's emotional nerve and show how potentially dangerous these are," says Osborne. "There's no question that air rifles can be dangerous if used improperly. But for human error, this would not have happened to this child."

The NRA says that the CPSC has already investigated Daisy five times in the last 28 years and cleared the company each time. Moreover, Osborne adds, the number of deaths and injuries due to the airgun is "a pretty good safety record. Last year, we had 30 deaths from shopping carts."

"There have been allegations of a defect for a long time," concedes CPSC spokesman Ken Giles. "This most recent investigation was the first time we've been able to demonstrate and replicate the defect of the BB getting lodged." According to the CPSC documents, Daisy voluntarily recalled 19,100 BB guns in 1979 because the guns could be fired even when the safety mechanism was on.

According to the Daisy Web site, the 880 model, at $50.95, is the "best-selling multi-pump pneumatic rifle." Both the 880 and 856 models are part of the PowerLine family, a series of "high-velocity adult air rifles recommended for adults or for those over 16 years of age." Marksmen can use the rifles for "hunting varmints, shooting competitively, maintaining their marksmanship during the off-season, or just shooting targets for fun." The 856 models sell for $40.95 to $59.95.

An administrative law judge will hear the agency's lawsuit against Daisy.

What To Do

Read more about today's action from the Consumer Product Safety Commission. The release contains an unusual element: a long, strong dissent from Commissioner Mary Sheila Gall, who says Brown orchestrated the suit for political reasons from the start. Gall quotes the Queen of Hearts in Lewis Carroll's Alice in Wonderland: "Sentence first, verdict afterwards."

For the other side of the issue, visit the National Rifle Association.

SOURCES: Interviews with Jason Osborne, federal liaison, National Rifle Association, Fairfax, Va.; Ken Giles, spokesman, U.S. Consumer Product Safety Commission, Washington, D.C.; CPSC press release
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