The CPSC Standard

The Consumer Product Safety Commission's bicycle standard is twenty pages long and took over five years to promulgate. It imposes significant compliance costs on both manufacturers and consumers. For example, it establishes frame and component stress tests, braking system tests, mandates the use of special reflectors, and generally prohibits numerous types of equipment and designs that are deemed unsafe.(45)

The standard had its origin in the President's Commission on Product Safety. The Commission condemned children's high-rise bicycles in its FINAL REPORT. The Report noted that accessories then available such as steering wheels instead of handlebars, large protruding gear shifters, banana seats, and "wheelie" wheels, promoted injuries and unsafe practices such as riding double and performing "wheelies." It further announced that high-rise models accounted for 45% of all bicycles but were associated with 57% of all injuries. It condemned the industry for not developing product standards including ones for lights and reflectors.(46)

At this time the Bicycle Manufacturers Association did develop a safety standard which was issued in 1970. The government first proposed a bicycle safety standard for bicycles used by those under sixteen years old on May 10, 1973. This proposal was made under the Federal Hazardous Substances Act by the Food and Drug Administration.(47) This proposal did not include a proposed effective date. It listed the problems it sought to address:(48)

[a] study of the product causation data identified the following areas of product deficiency: (1) The rider's foot slipping off of the pedal, (2) brake failure, (3) a component failure, and (4) poor night visibility. Secondary injury causes relating to protruding hardware, sharp edges, and sharp points are also shown to be a factor in the accident picture.

The proposed rule was much broader in scope than this relatively modest appearing list of possible product hazards and was based primarily on the industry standard. The proposed rule covered all bicycles intended for use by children of less than sixteen years of age and established design or performance standards for nearly every bicycle component. Yet the twenty page staff report by the FDA's Bureau of Product Safety that purportedly served as a basis for the rule only identified foot slippage off the pedal and failure of the brakes, pedals and gearing as causes of accidents.(49) Moreover, the report identified unsafe riding techniques which would not be affected by the proposed regulation (e.g., riding double, jumping curbs, stunting, excessive speed and "wheelies") as a substantial cause of children's bicycle accidents.

Four days after the rule was first proposed, functions under the Federal Hazardous Substances Act were transferred to the newly-created CPSC. The Commission published its "final" regulations in 1974, revised them in 1975 and published them again in November, 1975 with effective dates in 1976.(50)

Two individual consumers and one group of consumers challenged the legality of the promulgation itself and sixteen of the standard's provisions. On June 1, 1977, the Court of Appeals for the District of Columbia upheld the promulgation and most of the challenged provisions.(51) It upheld the CPSC's authority to issue standards covering nearly all bicycles under the Federal Hazardous Substances Act which only applied to articles intended for use by children. The court also upheld the Commission's notice of rule making and its authority to issue design as well as performance standards. With four exceptions, the court upheld the Commission's support for specific provisions stating that it was not required to develop a precise "body count."(52)

The court only remanded a broad prohibition of "protrusions," handlebar width restrictions, a brake system heat test which only applied to hand brakes, not to foot brakes, and a provision on pedal threads for which the court did not understand the Commission's justification. The Commission later republished its regulation with these four provisions deleted.(53)

The Market Approach

The development and marketing of the hardshell bicycle safety helmet has largely been a market phenomenon. The National Commission on Product Safety found that 14% of bicycling injures are head injuries.(54) Although this report led directly to the establishment of the CPSC, the CPSC's standard does not require new bicycles to be sold with a warning on head injuries or a recommendation to wear a hardshell helmet when riding. The CPSC does encourage helmet use in some of its safety literature.(55) More recently, as discussed below, a number of cities have experimented with programs to encourage helmet use particularly by children. However, no jurisdiction other than Puerto Rico and recently Howard County, Maryland, has required bicyclists to wear helmets.(56) A new California law does require infants being carried on a bicycle to wear helmets.(57)

The first hardshell helmets specifically designed for bicycle use appeared in 1975. By 1979, articles in bicycling publications were comparing helmets and encouraging their use.(58) Also in that year, the American Standards Institute drafted its first proposed bicycle helmet performance standard. A final standard was adopted by this organization in 1983 and the Snell Memorial Foundation recently adopted a somewhat more demanding standard.(59) A recent review of helmets in Bicycling magazine covered 45 models from 20 manufacturers of the "dozens" of adult helmets available.(60)

There have been no comprehensive national estimates or surveys of helmet use. The National Adolescent Student Health Survey did perform a national survey of over 11,000 eighth and tenth grade students. It found that 87% of them rode bicycles, but 92% of them never wore a helmet and less than 2% usually or always wore a helmet.(61)

In addition to this one national survey of two age groups, there have been surveys or observational helmet counts performed in a number of communities. For example, an on-the-street survey in Missoula, Montana counted 15% of observed bicyclists wearing helmets.(62) Similarly, helmet counts performed in October 1984 and May 1987 in Palo Alto, California showed that, for people below about seventeen years old, usage increased from 10.5% to 15%. Those eighteen and older showed an increase from 21% to 34%.(63) A helmet count performed at eleven sites state-wide in the summer of 1986 found that 23% of observed bicyclists in Oregon wear helmets.(64) This study also suggested significant variations in helmet usage among different types of bicyclists. It found that 71% of bicyclists observed to be tourists wore helmets compared to 36% of those observed to be commuters and only 12% of recreational bicyclists.(65) Sadly, children in the Oregon Study and another study conducted in Tucson, Arizona have the lowest rate of helmet usage.(66) The Tucson study observed 468 bicyclists. Two elementary school children, no junior high school students, two high school students and fifteen college students wore helmets. The usage rates were 1.85%, 0%, 1.86% and 10%, respectively.(67)

Moreover, it is not necessarily true that all bicyclists who own helmets use them all the time, or at all. A Madison, Wisconsin survey of bicyclists found that 19% own helmets but only 12% usually wear them when they ride.(68) Interviews of 516 bicyclists by Dr. Wasserman of the University of Vermont found that only 7.8% were actually wearing a helmet although 18.8% said they owned one.(69)

Information on helmet usage also has been obtained from studies of accident victims. In August 1986, the CPSC collected data on helmet use from bicyclists treated for injuries in hospital emergency rooms. It found that during that month only 4% of those bicyclists treated wore helmets.(70) A similar survey conducted in King County, Washington in 1986 found that 25% of the accident victims wore helmets.(71) Of the 520 children treated for bicycling related injuries in the Emergency Department of The Children's Hospital of Philadelphia in the summer of 1983 only 3 (.6%) wore protective equipment although 8% said they owned such equipment.(72) Of 226 injured bicyclists in Boulder, Colorado who completed a questionnaire, only 33 (15%) wore hardshell helmets at the time of their accident.(73) Surveys of North Carolina emergency rooms revealed that 14 of 242 (5.8%) injured bicyclists treated in 1985 and only 3 of 395 (.8%) of those treated in 1986 wore helmets at the time of their accident.(74)

Bell Helmets, a leading manufacturer of bicycle helmets, made its one millionth bicycle helmet in 1985 and estimates that between 800,000 and one million bicycle helmets are being sold each year.(75) Based on these figures, and estimates from the Bicycle Marketing Research Institute and other helmet manufacturers, I estimate that 8.7 million helmets have been sold in the U.S. through the end of 1988. Although these helmets are designed for only one crash, nearly all of them may still be in use. Thus, almost 9% of the estimated 85 million bicyclists in this country own hardshell helmets. As the above studies indicate, helmet usage appears concentrated among regular adult bicyclists, with children in most communities seldom using helmets.