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Regulation vs. the Market:
The Case of Bicycle Safety - Endnotes

petty.jpg (6448 bytes)About the author:

Ross D. Petty received his B.A. and M.B.A. from the University of Rochester, his J.D. from the University of Michigan, and an M.P.A. from Harvard University. At the time of first publication of this article, he was Assistant Professor of Business Law at Babson College. (Updated short bio on Babson College Web site.)

He wishes to thank John Williams (editor of the journal Bicycle Forum) for comments on earlier drafts of this article.

        Introduction

  1. The term "hardshell bicycle helmet" includes the recently developed "no shell" helmets that are constructed of expanded polystyrene as well as similar helmets that also include a hard plastic shell. Both pass helmet safety standards and can be contrasted with "leather hairnets" that offer virtually no impact protection. See Bike Helmets: Unused Lifesavers, Consumer Reports 348 (May 1990); Swart, Hard Facts About Bicycle Helmets, 1 Cycling Science 14 (Dec. 1988); D'Ambrosio, The Shell Game, 14 BikeReport 13 (Jun. 1988) and sources cited at notes 58-60, infra. While a question has been raised concerning whether "no shell" helmets momentarily adhere to the ground on impact thereby increasing the likelihood of neck or spinal injuries, such helmets are too new to have a significant effect on the data presented here. See V. HODGSON, IMPACT, SKID, AND RETENTION TESTS ON A REPRESENTATIVE GROUP OF BICYCLE HELMETS TO DETERMINE THEIR HEAD-NECK PROTECTION CHARACTERISTICS (1990) (finding increased probability of neck injury from no shell helmets over hardshells at low angle skids), and Martin, Are Foam Only Helmets Safe?, 30 Bicycling 28-29 (Feb. 1989). But see Zahradnik, Helmet Buyer's Guide, 30 Bicycling 160-61 (May 1989) (Bell helmets tested foam-only helmets on simulated road surfaces and found no appreciable differences with hardshell helmets).
  2. There are many other, less intrusive, efforts taken by the Federal Government to promote bicycle safety. These include co-sponsoring conferences, preparing studies and funding projects at the state and local level. See, e.g., Baldwin, Federal Bicycle Programs and Projects, 1 Bicycle Forum 30 (Spr. 1978), and Baldwin, Federal Funds for Bicycles, 2 Bicycle Forum 31 (Fall 1978). Even the Federal Trade Commission has contributed to bicycle safety through its acceptance of a consent agreement with a bicycle manufacturer that agreed to cease showing children riding in an unsafe manner in its advertising, and to produce two bicycle safety messages and distribute them to specified television stations across the country. See AMF, Inc., 95 F.T.C. 310 (1980).
  3. PRESIDENT'S COMMISSION ON PRODUCT SAFETY, FINAL REPORT 1 (1970). More recently, the CPSC has estimated that consumer products are associated with 32 million injuries and 28,000 deaths annually, costing an estimated $10 billion in emergency room treatment alone. CONSUMER PRODUCT SAFETY COMMISSION, ANNUAL REPORT FOR FISCAL YEAR 1986.
  4. 36 CONG. Q. 389 (1978). The first Chairman of the CPSC, Richard O. Simpson, testified in 1976 that the "standards-preventable" portion of product associated injuries was between 15 and 25%. Federal Regulation and Regulatory Reform: Hearings Before The Subcomm. On Oversight And Investigations Of The House Comm. On Interstate And Foreign Commerce, 94th Cong., 2d Sess. 4 (1976).
  5. Oi, The Economics of Product Safety, 4 BELL J. ECON. 4 (1973).
  6. Id. See also Viscusi, Toward a Diminished Role for Tort Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety, 6 YALE J. REG. 65, 74-75 (1989).
  7. Lower, Averyt and Greenberg, On the Safe Track: Deaths and Injuries Before and After The Consumer Product Safety Commission 1, 4 (unpublished report of the Consumer Federation of America, Sept. 15, 1983).
  8. See EDITORIAL RESEARCH REPORTS ON CONSUMER PROTECTIONS GAINS AND SETBACKS 8 (Feb. 17, 1978).
  9. Viscusi, Consumer Behavior and the Safety Effects of Product Safety Regulation, 28 J. L. & ECON. 527, 531-34 (1985); W. Vlscusi, REGULATING CONSUMER PRODUCT SAFETY 71-73 (1984).
  10. Zick, Mayer & Snow, Does the U.S. Consumer Product Safety Commission Make a Difference? An Assessment of Its First Decade, 6 J. CONS. POL'Y. 25, 27-28 (1986).
  11. Id. at 30-32.
  12. Id. at 34.
  13. Id. at 34-38. They also conclude that by failing to control for other variables, the Consumer Federation study overestimated the effect of the CPSC by 155%. Id. at 36.
  14. Viscusi, supra note 9, at 532.
  15. Zick et al., supra note 10, at 29 n.1, and 33.
  16. See, e.g., P. KENNEDY, A GUIDE TO ECONOMETRICS 150-52 (1985).
  17. Viscusi, supra note 9, at 533.
  18. Zick et al., supra note 10, at 31.
  19. W. VISCUSI, supra note 9, at 71-101. For other critical analyses of CPSC rules, see also Kafoglis, Matchbook Safety, in BENEFIT-COST ANALYSES OF SOCIAL REGULATION 75 (1. Miller & B. Yandle eds. 1979); Lenard, Lawn Mower Safety, in id.; and Linneman, Effects of Consumer Safety Standards: The 1973 Mattress Flammability Standard, 23 J. L. & ECON. 461 (1980).
  20. See, e.g., 1. CLAYBROOK ET AL., RETREAT FROM SAFETY 58-70 (1984); M.GREEN & N. WAITZMAN, BUSINESS WAR ON THE LAW: AN ANALYSIS OF THE BENEFITS OF FEDERAL HEALTH/SAFETY ENFORCEMENT 156-67 (1981). These analyses appear to be largely based on the CPSC's own estimates of its rules' benefits and costs. Such estimates have often been criticized as biased. See sources supra note 19.
  21. 15 U.S.C. § 2056(b) (1982). For general criticism see Adler, From "Model Agency" to Basket Case - Can the Consumer Product Safety Commission Be Redeemed? 41 ADMIN. L. REV. 61, 92-106 (1989). For criticism for reliance on specific voluntary standards including those for all terrain vehicles, cigarette lighters, bunk beds, DEHP, swimming pool covers, and baby pacifiers, seeM. FISE, THE CPSC: GUIDING OR HIDING FROM PRODUCT SAFETY (Consumer Federation of America, 1987).
  22. Linneman, supra note 19, at 474-79. 23

    General Background
  23. U.S. CONSUMER PRODUCT SAFETY COMMISSION, ANNUAL REPORT 22 (1982).
  24. U.S. CONSUMER PRODUCT SAFETY COMMISSION, 1990 PRIORITY PROJECT RECOMMENDATIONS, section on FY 1990 PRIORITY PROJECTS - Conducting A Bicycle Injury And Exposure Survey (May 9, 1988), cited in, PETITION OF THE CONSUMER FEDERATION OF AMERICA ET AL., TO ESTABLISH A MANDATORY SAFETY STANDARD FOR ADULT AND CHILD BICYCLE HELMETS 7-8 (May 15, 1989) ($2 million for each death, $2.3 billion for emergency room treated injuries, and $2.5 billion for other medically treated injuries).
  25. Id. Kenneth Cross estimates that because NEISS does not include student health care facilities, it may underestimate the total number of serious bicycle-associated injuries by as much as 27%. K. CROSS, BICYCLE-SAFETY EDUCATION - FACTS AND ISSUES 24 (1978).

    Those accidents that result in only minor injuries are not reported to medical facilities or to the police or insurance authorities. Thus, the vast majority of bicycle accidents are likely not to be reported at all. A recent study by the Madison, Wisconsin Traffic Engineering Department found that 2,800 adult bicyclists were involved in accidents in 1985. Only 300 or so of those accidents were reported to the police. 12 BikeReport 4 (Oct./Nov. 1986). Similarly, a North Carolina study of 648 accidents reported to hospital emergency rooms in 1985 and 1986 showed that only 10% were reported to the police. J. STUTTS ET AL., BICYCLE ACCIDENTS: AN EXAMINATION OF HOSPITAL EMERGENCY ROOM REPORTS AND COMPARISON WITH POLICE ACCIDENT DATA 10 (Univ. N. Carolina Highway Safety Research Center, 1988).
  26. U.S. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, THE NATIONAL ACCIDENT SAMPLING SYSTEM 42-43 (1986) [hereinafter NASS]. Motor vehicle accidents tend to be more severe than non-motor vehicle accidents. See Flora & Abbott, National Trends in Bicycle Accidents, 11 J. SAFETY RES. 20, 26 (1979)(7% of the severe accidents involve motor vehicles compared to 3% in the total sample).
  27. NATIONAL SAFETY COUNCIL ACCIDENT FACTS 73 (1988). Pedalcycles include sidewalk bicycles and tricycles which are not included in the NHTSA figures.
  28. J. FORESTER, BICYCLE TRANSPORTATION 84 (1983). STUTTS ET AL., supra note 25, at 3, review reported hospital emergency room studies from around the country and indicate that the proportion of bicycle related injuries occurring from motor vehicle collisions ranges from 13-50%. Australian figures show 70-80% of bicycle crashes do not involve motor vehicles. Boughton & Broadbent, Bicycle Safety Current Knowledge in BIKESAFE 86 CONFERENCE PROCEEDINGS 15, 29 (Fed. Dept. of Transportation ed. 1987).
  29. K. CROSS, supra note 25, at 22 and Burden, Bicycle Accident Facts, 1 Bicycle Forum 12, 13 (Spr. 1978).
  30. In contrast to the cause of accidents, most bicycle injuries are caused by impact with the ground. Even in bicycle-motor vehicle accidents, 60% of the most severe bicyclist injuries are caused by impact with the ground. NASS, supra note 26, at 42.
  31. J. FORESTER, supra note 28 , at 84.
  32. Kiburz et al., Bicycle Accidents and Injuries Among Adult Cyclists, 14 AM. J. SPORTS MED. 416 (1986), reported in 28 Bicycling 22-3 (Apr. 1987). See also Flora & Abbott, supra note 26, at 25 (Of 581 serious injury cases investigated by the CPSC, 51% were primarily caused by operator error).
  33. P. HILL, BICYCLE LAW AND PRACTICE §§ 1.4 & 1.5 (1986). Cf. DeLong, Bicycle Stability, 13 Bicycling 12 (May 1972) and Jones, The Stability of the Bicycle, Physics Today 34 (Apr. 1970).
  34. Interestingly, there is a negative correlation between the annual number of NEISS bicycle injuries and the annual number of NHTSA bicycle related deaths. The Spearman correlation coefficient is -0.66 and is significant at the 98% confidence level. One possible explanation for this relationship is the inaccuracy of NEISS or of both systems.
  35. U.S. NATIONAL HIGHWAY SAFETY TRAFFIC ADMINISTRATION, THE FATAL ACCIDENT REPORTING SYSTEM Ch. 8 at 9 (1987) [hereinafter FARS].
  36. NATIONAL SAFETY COUNCIL, supra note 27, at 73 (1988).
  37. U.S. DEPT. OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE UNITED STATES, VOL. II, MORTALITY, PART A at 198 (1986) (10 pedestrians and 8 unspecified people were also killed in pedalcycle accidents not involving motor vehicles).
  38. Cf. K. CROSS, supra note 25, at 21 (82%). In Australia, 87% of bicyclist fatalities involve motor vehicle collisions. Boughton & Broadbent, supra note 28, at 24.
  39. Fife et al., Fatal Injuries to Bicyclists: The Experience of Dade County, Florida, 23 J. TRAUMA 745, 746 (1983). None of the bicyclists were wearing helmets, and all were injured from a collision with a car.
  40. Guichon & Myles, Bicycle Injuries: One Year Sample in Calgary, 15 J. TRAUMA 504-6 (1975), and N. GILLIES, HELMETS FOR USE BY BICYCLE RIDERS 5 (Traffic Accident Research Unit, Department of Motor Transport, New South Wales March 1980). According to the NHTSA, 70% of all motorcycle fatalities are caused by head injuries. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, STATE AND COMMUNITY PROGRAM AREA REPORT, MOTORCYCLE SAFETY 1984-85 at 3 (1985), When the requirement that states enact mandatory motorcycle helmet use laws was repealed in 1976, motorcycle fatalities increased 48% in four years - from 3,312 in 1976 to 5,144 in 1980. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, A REPORT TO CONGRESS ON THE EFFECT OF MOTORCYCLE USE LAW REPEAL - A CASE FOR HELMET USE at IV-2 (1980).
  41. Worrell, Head Injuries in Pedal Cyclists: How Much Protection Will Help? 78 INJURY 56 (1987).
  42. Data is derived primarily from NATIONAL SAFETY COUNCIL, supra note 27, at 83. That for smoking and mountaineering are from Morrall, A Review of the Record, 10 REGULATION 25-27 (1986). Data for bicycling and all terrain vehicles are derived from other sources. See supra notes 24 and 35; infra notes 79 and 109
  43. 28 Bicycling 23 (Apr. 1987). This estimate is consistent with data in Table 1 under the assumption that it represents only 10% of all injuries.
  44. 1 Bicycle Forum 45 (Spr. 1978).

    Further Background
  45. Most of this regulation became effective on May 11, 1976. Four subsections became effective on November 13, 1976. On June 1, 1977, a federal court remanded four provisions for reconsideration, and those four provisions were subsequently deleted. 16 C.F.R. § 1512 (1985).
  46. PRESIDENT'S COMMISSION ON PRODUCT SAFETY, supra note 3, at 18-20.
  47. Bicycles, Proposed Classification as Banned Hazardous Substance, 38 Fed. Reg. 12,300 (1973) (to be codified at 21 C.F.R. §§ 191.9a and 191c.).
  48. Id.
  49. BUREAU OF PRODUCT SAFETY, STAFF ANALYSIS OF BICYCLE ACCIDENTS AND INJURIES (1972).
  50. See Bicycles, Establishment of Safety Standard and Proposed Labeling Requirements, 39 Fed. Reg. 26,100 (1974); Bicycle Banning and Safety Regulations, 40 Fed. Reg. 25,480 (1975); and 40 Fed. Reg. 52,815 (1975), respectively (all to be codified at 16 C.F.R. §§ 1512 and 1500.18 (a) (12)).
  51. Forester v. C.P.S.C., 559 F.2d 774 (D. C. Cir. 1977). The other parties who had filed for appeal of the CPSC's initial promulgation voluntarily dismissed their suits; 559 F.2d at 781.
  52. Id. at 788.
  53. Bicycles Revised Safety Standards, 43 Fed. Reg. 60,034 (1978) (to be codified at 16 C.F.R. § 1512).
  54. PRESIDENT'S COMMISSION ON PRODUCT SAFETY, supra note 3, at 18-20. Selbst et al. found head and neck trauma to be the primary injury in 31% of bicycling injured children treated by The Children's Hospital of Philadelphia in the summer of 1983. Selbst et al., Bicycle-Related Injuries, 141 AM. J. DISEASES CHILDREN 140, 141 (1987). Similarly, 67% of those hospitalized in Calgary, Canada with bicycling related injuries had head injuries. Guichon & Myles, supra note 40.
  55. The CPSC's publication directed at child bicyclists, SPROCKETMAN COMICS, does mention the importance of wearing a helmet on page 25, but the title character does not even have one integrated into his superhero costume.
  56. See P. HILL, supra note 33, at 11 and 10 Pro Bike News 1 (Jul. 1990), respectively.
  57. CAL. VEH. CODE § 21204 (West 1987). Florida, Massachusetts, New Jersey and New York legislatures reportedly are considering similar bills. The New York Assembly also is considering a mandatory helmet use law for all bicyclists. 9 Pro Bike News 1, 2 (May 1989).

    A recent study of 54 NEISS reported injuries to children riding in bicycle mounted child seats found that 65% of all reported injuries were to the head and face. 27% of the head injuries were serious. The study recommended that children in such carriers wear helmets. Sargent et al., Bicycle-Mounted Child Seats, 142 AM. J. DISEASES CHILDHOOD 765 (1988).
  58. See, e.g., Rodale, Helmet Progress, 20 Bicycling 72 (Jan. 1979) and Swart, Helmet User's Test, 20 Bicycling 61 (Jun. 1979).
  59. For a detailed discussion of helmet performance standards and performance testing, see Minton, A Head of the Game, 1 Bicycle Rider 110 (1985) and the follow-up article, Howels, Helmet Testing -- Can We Live With These Standards? 2 Bicycle Rider 50 (1986).
  60. Martin, Crash Course, 29 Bicycling 72 (Jun. 1988).
  61. NATIONAL ADOLESCENT STUDENT HEALTH SURVEY, INJURY PREVENTION FACTSHEET (1988).
  62. 5 Bicycle Forum 24 (Spr. 1987).
  63. 8 Pro Bike News 3 (Jun. 1988).
  64. 7 Pro Bike News 3 (Mar. 1987).
  65. Id.
  66. The Oregon study found that 6% of child recreational bicyclists, 29% of child commuter bicyclists and 69% of child touring bicyclists wore helmets. The comparable figures for adults were 17%, 39%, and 72%, respectively. Unpublished charts from the OREGON DEPARTMENT OF TRANSPORTATION HIGHWAY DIVISION, Dick Unrein, Bicycle Program Manager.
  67. Weiss, Bicycle Helmet Use by Children, 77 PEDIATRICS 677 (1986). In contrast to their low usage rate, 65% of more than 135,000 children under the age of 17 who were surveyed by Cheerios, favored making bicycle helmet use mandatory for their age group. 30 Bicycling 34 (Jun. 1989).
  68. 12 BikeReport 4 (Oct./Nov. 1986) and Williams, Promoting Helmets in Madison, 17 Bicycle Forum 12, 14 (Fall 1987).
  69. Wasserman et al., Bicyclists, Helmets and Head Injuries: A Rider-Based Study of Helmet Use and Effectiveness, 78 AM. J. PUB. HEALTH 1220 (1988) (Of 21 bicyclists who reported falling and striking their heads, the 8 helmeted riders reported no head injury whereas 7 of the 13 unhelmeted riders reported such injuries).
  70. Private conversation with Debbie Kensworth of the CPSC, on Feb. 16, 1988, concerning CPSC's in-depth study of bicycle accidents, published in August, 1986.
  71. Survey reported in Wilson, Bicyclists in Washington State: A Population at Risk 13 (Unpublished paper available from the Bicycle Helmet Safety Institute, Arlington, VA, March, 1987).
  72. Selbst et al., supra note 54.
  73. Watts et al., Survey of Bicycling Accidents in Boulder, Colorado, 14 PHYSICIAN SPORTS MED. 99, 100 (1986).
  74. STUTTS, ET AL., supra note 25, at 14.
  75. Letter from Mark E. Williams, Vice President/General Manager Bicycle Division, Bell Helmets, Inc. to the author, concerning bicycle helmet sales (Apr. 8, 1986).

    Estimating Safety Effects
  76. A 1976 survey in the Federal Republic of Germany found 15.3 accidents per million bicycle trips, 6.6 accidents per million bicycle kilometers and 62.0 accidents per million hours travelled by bicycle. The comparable figures for automobiles were 11.6, 0.7 and 29.4, respectively. Brog & Kuffner, Relationship of Accident Frequency to Travel Exposure, in TRANSPORTATION RESEARCH BOARD No. 808 at 55 (1981). A recent Australian study calculated that regular bicycle users (ride at least once per week) in that country had 2.7-5.4 fatalities per 100 million kilometers, 2-4 hospitalizations per million kilometers, 55-110 fatalities per 100 million hours and 40-80 hospitalizations per million hours. The corresponding calculations for automobiles are 2, 0.8, 80, and 30, respectively. Mathieson, Gaps in Current Knowledge, in BIKESAFE 86 CONFERENCE PROCEEDINGS 55, 58 (Dept. Trans. ed. 1987).
  77. W. VISCUSI, supra note 9, at 84-5 and Viscusi, supra note 9, at 552. Viscusi's analysis contained an admitted critical limitation. He only examined data through 1981 but recognized that bicycles have an average operating life of at least seven years. His analysis therefore did not encompass a sufficiently long period of time to show whether the rule had any effect on the number of reported injuries. As expected, he failed to find any trend that might indicate the CPSC standard reduced the number of bicycle-related injuries reported to NEISS.
  78. See NATIONAL SAFETY COUNCIL, supra note 27, at 63.
  79. Rodgers, Reducing Bicycle Accidents: A Reevaluation of the Impacts of the CPSC Bicycle Standard and Helmet Use, 11 J. PROD. LIAB. 307, 311-2 (1988).
  80. Rodgers adopts users per bicycle in use as his control for intensity of use. Id. at 311. He does not explain why such a measure in appropriate.
  81. The number of bicyclists were estimated by the author based on surveys performed by the Sporting Goods Dealer magazine, the National Sporting Goods Association, the A.C. Nielsen Company, the Department of Interior and the Gallup Company, as well as estimates by the Bicycle Federation. For much of this data in tabular form, see Petty, The Consumer Product Safety Commission's Promulgation of a Bicycle Safety Standard, 10 J. PROD. LIAB. 25, 42 (1987).
  82. See infra notes 114-6 and accompanying text.
  83. Rodgers, supra note 79, at 311-4.
  84. Id. Rodgers also uses a linear trend variable to "capture all omitted factors that affect the risk of injury smoothly over time." Id. at 312. Since this variable was significant for fatalities and head injuries, it was tried here, but never achieved significance. It is difficult to imagine any such factors that would not be included in the pedestrian variable.
  85. Viscusi, supra note 9, at 532. To insure the accuracy of this assumption, lagged variables were included experimentally in both equations. In each case the lagged variables were not statistically significant and had negative coefficients.
  86. a is the intercept coefficient, and b1 through b4 are coefficients of the independent variables.

    IR is the injury rate per thousand bicyclists using NEISS data -- NEISS data was obtained from the CPSC on computer printouts for each calendar year. For more information on NEISS, see supra note 25.

    FR is the fatality rate per million bicyclists based on FARS data -- published annually by the NHTSA -- see, e.g., supra note 35.

    PH is the proportion of head injuries reported to NEISS. I am indebted to Rodgers for catching arithmetic errors in my earlier study; see Rodgers, supra note 79, at 309. Rodgers' corrected figures are used here.

    CPSC is one of four dummy variables assuming a seven or ten year bicycle life and a simple or complex life cycle model.

    HEL is the proportion of bicyclists who own helmets.

    POP is the proportion of the U.S. population below 24 years of age from the U.S. Census;

    INS is the proportion of population with health insurance coverage calculated from census data and industry statistics. With regard to the latter, see, e.g., HEALTH INSURANCE ASSOCIATION OF AMERICA, SOURCE BOOK OF HEALTH INSURANCE, 1988 UPDATE 3.

    NEISS is a dummy variable controlling for the 1979 sample change.

    PEDS is the pedestrian fatality rate per million automobiles in use based on FARS data. Rodgers uses pedestrian fatality estimates from the National Safety Council but bicycle fatalities from the FARS. Rodgers, supra note 79, at 312 n.9. There are significant differences between the two; this study uses pedestrian fatalities from FARS.
  87. The numbers following the equations indicate, for respective independent variables, individual statistical significance given by the t test. Following notes indicate for each equation, respectively, variance in the data accounted for by the equation, statistical significance, and autocorrelation among variables.
  88. R2 = 0.62, p = 0.021, and Durbin Watson d = 0.85.
  89. R2 = 0.96, p = 0.000, and Durbin Watson d = 0.92.
  90. R2 = 0.72, p = 0.014, and Durbin Watson d = 1.47.
  91. Of the four CPSC variables tested, the complex model with a ten year life obtained the most significant results, supporting Rodgers' argument against using a simple model. See supra note 84 and related text.
  92. If the NEISS figures are too inaccurate to be used, fatality rate could be used as an imperfect measure of the standard's effects. A similar multiple regression was run for fatality rate, but found population to be the only significant independent variable. The coefficient for the CPSC standard was negative, at least showing that it is associated with decreased fatalities, even though this relationship is not statistically significant.
  93. See supra notes 39-41 and related text.
  94. As discussed supra at note 85, the use of a lagged dependent variable as an independent variable to correct for autocorrelation was not statistically significant, and achieved a negative coefficient showing an inverse relationship with the dependent variable. It also failed to improve the Durbin Watson d statistic.

    Discussion
  95. This rule has also been criticized as an attempt by domestic manufacturers to restrict foreign competition. See, e.g., Cornell, Noll & Weingast, Safety Regulation, in SETTING NATIONAL PRIORITIES: THE NEXT TEN YEARS 457, 493-4 (H. Owen & C. Schultze eds. 1977), Viscusi, supra note 9, at 552, and S. Breyer, REGULATION AND ITS REFORM 115 (1982). For a refutation of this view, see Petty, The Consumer Product Safety Commission's Promulgation of a Bicycle Safety Standard, 10 J. PROD. LIAB. 25, 32-8 (1987). Actually the main goal of the domestic industry appears to have been to preempt state standards. See CONSUMER PRODUCT SAFETY ACT AMENDMENTS: Hearings on H.R. 5361 Before the Subcomm. on Cons. Protect. and Fin. of the House Comm. on Interstate and Foreign Commerce, 94th Cong. 1st Sess. 24, 65 (1975) (Statements of Jay Townley, Schwinn Bicycle Co. and John R. F. Baer, Bicycle Manufacturers Association of America).
  96. Even CPSC Economist Rodgers finds no statistically significant relationship between the standard and the injury rate. The major difference between our analyses appears to be his use of riders per bicycles in use as an independent variable to control for intensity of use. Such a measure presumes that when there are more riders relative to bicycles in use according to the CPSC Product Life Cycle Model, more bicycling is done than when there are relatively few riders per bicycle. Rodgers, supra note 79, at 315-6. As discussed supra at notes 76-81, the best measure of bicycle use, other than bicycle miles travelled (which is not available in the U.S.) is simply the number of people who consider themselves active bicyclists. For this reason, adopting injuries or fatalities per bicyclist as the dependent variable automatically controls for intensity of use.
  97. See supra notes 24-5 -- sources and accompanying text. See also, Heiden et al., The Utility of the U.S. Consumer Product Safety Commission Injury Data System as a Basis for Product Hazard Assessment, 5 J. PROD. LIAB. 245-319 (1982) (1980 bicycle injury data is accurate ±  27% with a 95% confidence level). Rodgers asserts that the NEISS standard of error for bicycle injuries is ± 7-11%. [original said +, not  ± in both instances-- editor] Rodgers, supra note 79, at 316.
  98. Compare Rodgers, supra note 79, at 315 (helmet use by bicyclists may cause reckless behavior), Graham & Lee, Behavioral Response to Safety Regulation: The Case of Motorcycle Helmet Wearing Legislation, 19 POL'Y. SCIENCES 253 (1986), and Peltzman, The Effects of Automobile Safety Regulations, 83 J. POL. ECON. 677 (1975) with Crandell & Graham, Automobile Safety Regulation and Offsetting Behavior: Some New Empirical Estimates, 74 AM. ECON. REV. PAPERS & PROC. 328 (1984). See also Viscusi, The Lulling Effect: The Impact of Child Resistant Packaging on Aspirin and Analgesic Ingestions, 74 AM. ECON. REV. PAPERS & PROC. 324 (1984).
  99. J. FORESTER, supra note 28, at 96.
  100. 3 CONSUMER PROD. SAFETY GUIDE (CCH) ¶46,671 (1984).
  101. FARS, supra note 35, ch. 8 at 12.
  102. J. FORESTER, supra note 28, at 368-9.
  103. 1986 BICYCLE USA ALMANAC 28-9 (1986).
  104. Capuano v. Almart Stores, Inc., 1 Prod. Liab. L. Rep. (CCH) 78 (PA Northhampton County Court of Common Pleas # C-3849, Aug. 1982). This holding is contrary to another court's decision prior to promulgation of the CPSC standard. See Poppell v. Waters, 126 Ga. App. 385, 190 S.E. 2d 815 (1972) (The absence of a headlight is obvious so there is no duty to warn).
  105. Petty, supra note 95, at 43-4 and Rodgers, supra note 79, at 315-7.
  106. See sources cited supra at notes 31-3 and BUREAU OF PRODUCT SAFETY, supra note 49, at 5-7.
  107. 559 F.2d at 793.
  108. J. FORESTER, supra note 28, at 363-9.
  109. Rodgers, supra note 79, at 316.
  110. J. FLORA ET AL., EXTENSION OF THE NEISS DATA ANALYSIS INCLUDING CPSC IN-DEPTH REPORTS OF BICYCLE-ASSOCIATED ACCIDENTS 21 (1977) and Flora & Abbott, supra note 26, at 25. Interestingly, this study found that bicycles identified as being in compliance with the BMA/6 standard (upon which the CPSC's standard is based) had a slightly higher rate of product failure than bicycles which would not be identified as complying with the standard. This difference was not statistically significant. Id. at 24. See also, J. FORESTER, supra note 28, at 52, 84. (estimating that 6% of all bicycle-related injuries and fatalities are caused by equipment failure); the University of Kansas Medical Center Survey, supra note 32, reported bicyclists blaming mechanical problems as the cause of 15% of their accidents. STUTTS ET AL., supra note 25, at 14, reports that 15.6% of bicycle related injuries treated in North Carolina emergency rooms in 1985 and 12.5% of those in 1986 were reported caused by mechanical failure.
  111. J. KAPLAN, CHARACTERISTICS OF THE REGULAR ADULT BICYCLE USER 51 (1975). See also, VIRGINIA DEPARTMENT OF HIGHWAYS AND TRANSPORTATION, PLANNING AND DESIGN OF BIKEWAYS (1974) (Bicycle defects were contributing factors in less than 3% of all bicycle-motor vehicle accidents) and a survey of children bicyclists between April and September 1983 in the Emergency Department of the Children's Hospital of Philadelphia found that they reported only 3% of all accidents occurred because of equipment failure. However, the bicycle was known to be in need of repair by the child or caretaker in 24% of the cases. Selbst et al., supra note 54, at 141.
  112. FLORA, supra note 110.
  113. Kenneth Cross' study of bicycle/motor vehicle accidents found that brakes had the highest frequency of alleged contribution to bicycle/motor vehicle accidents. This problem was reported to be a contributory factor in 6% of the accidents studied. K. CROSS, supra note 25, at 36-7.
  114. P. HILL, supra note 34, at 27.
  115. Id. at 27-36. Hill summarizes the following cases: Poppell v. Waters, 190 S.E.2d 815 (Ga. App. 1972), Means v. Sears, Roebuck, 550 S.W. 2d 780 (Mo. 1977), Reis v. MTD Products, 456 A. 2d 211 (Pa. Super. 1983), Walden v. Sears, Roebuck and Co., 654 F. 2d 443 (5th Cir. 1981), Caporale v. Raleigh Industries, 382 So.2d 849 (Fla. 1980), Washington v. Otasco, Inc., 603 F. Supp. 1295 (N.D. Miss. 1985), Outwater v. Miller, 158 N.Y.S.2d 562 (1957), Khoder v. AMF, Inc., 539 F.2d 1078 (5th Cir. 1976), Tomczuk v. Town of Cheshire, 217 A.2d 71 (Conn. 1965), Levin v. Cleveland Welding Co. 87 N.E.2d 187 (Ohio 1963), Wilson v. Naifeh, 539 P.2d 390 (Okla. 1975), Barnes v. Sears, Roebuck, and Co., 406 F.2d 859 (4th Cir. 1969), and Parisi v. Carl W. Bush Co., 67 A.2d 875 (N.J. 1949).
  116. Capuano v. Almart Stores, Inc., 1 Prod. Liab. L. Rep. (CCH) 78 (Aug. 1982) and Harris v. Giant Man. Co., 4 Prod. Liab. L. Rep. (CCH) 8 (Jan. 1985).
  117. Wall St. J., Feb. 11, 1987, at 29, and Legal Times of Washington, Jan. 22, 1987, at 1, 8-10. See also Rodgers, The Effectiveness of Helmets in Reducing All-Terrain Vehicle Injuries and Deaths, 22 ACCIDENT ANAL. & PREV. 47 (1990) (1,100 ATV fatalities and 400,000 emergency room-treated injuries since 1982).
  118. The CPSC and the Department of Justice recently announced a preliminary settlement of a lawsuit to recall all three wheeled ATVs. The settlement called for a ban of all future sales of three wheeled ATVs but has been criticized as too lenient. Nat'l L. J., May 2, 1988, at 8.
  119. But see Rodgers, supra note 79, at 315-6 (helmet use positively related to fatality rate, but not significantly related to head injury rate).
  120. See supra notes 39-40 -- sources and related text.
  121. Thompson, Rivara, & Thompson, A Case-Control Study of the Effectiveness of Bicycle Safety Helmets, 320 N. ENG. J. MED. 1361 (1989).
  122. Dorsch et al., Do Bicycle Safety Helmets Reduce Severity of Head Injury in Real Crashes?, 19 ACCIDENT ANAL. & PREVENTION 183 (1987).

    Conclusions and Recommendations
  123. A. WILDAVSKY, SEARCHING FOR SAFETY 183 (1988).
  124. Thomas, Revealed Bureaucratic Preference: Priorities of the Consumer Product Safety Commission, 19 RAND J. ECON. 102, 112 (1988) (CPSC favored mandatory standards over other types of projects and weighed safety benefits more heavily than consumer costs).
  125. For similar research showing negative safety effects for bicyclists from changes in roadway design and other engineering "improvements", see Johnson et al., The Wheels of Misfortune: A Time Series Analysis of Bicycle Accidents on a College Campus, 2 EVALUATION Q. 608, 617 (1978) ("... engineering and impounding interventions intended to create a safer biking environment have had no significant impact on the number of bicycle accidents. They may also have made things worse.").
  126. The Consumer Product Safety Act's authorization to set mandatory standards was amended in 1981 to require the CPSC to rely on voluntary standards "whenever compliance with such voluntary standards would eliminate or adequately reduce the risk of injury addressed and it is likely that there will be substantial compliance with such voluntary standards." 15 U.S.C. § 2056(b). See generally, Klayman, Standard Setting Under the Consumer Product Safety Amendments of 1981 -- A Shift in Regulatory Philosophy, 51 GEO. WASH. L. REV. 96 (1982). Had this section been operative when the CPSC considered bicycles, it may have simply chosen to rely on the industry standard.
  127. See e.g., Viscusi, supra note 6, at 76 ("Government regulation is the most effective institution for generating new risk information.").
  128. K. CROSS & G. FISHER, IDENTIFICATION OF SPECIFIC PROBLEMS AND COUNTERMEASURE APPROACHES TO ENHANCE BICYCLE SAFETY (1977). For other examples of useful government efforts in this area, see sources, supra note 2.
  129. See Viscusi, Market Incentives for Safety, 78 HARV. BUS. R. 133 (1985) (arguing that government regulators underestimate the market incentive of the profit motive for producing safe products).
  130. Accord Rodgers, supra note 79, at 317.
  131. See supra note 46 and related text.
  132. Weaver, The Hazards of Trying to Make Consumer Products Safer, in CONSUMERISM: THE SEARCH FOR THE CONSUMER INTEREST 373 (D. Aaker & G. Day eds. 1978).
  133. 10 Pro Bike News 2 (Jul. 1990).
  134. See, e.g., Adler & Pittle, Cajolery or Command: Are Education Campaigns an Adequate Substitute for Regulation?, 1 YALE J. ON REG. 159 (1984) (evaluating three education safety campaigns of varying degrees of success).
  135. 12 Bicycle Forum 3 (Dec. 1985).
  136. See supra note 55 and related text.
  137. The Head Smart Coalition, National Safe Kids Campaign, and other groups, including the states of Florida and North Carolina, all planned helmet use promotional campaigns for 1989. 22 Bicycle Forum 1, 2 (Win./Spr. 1989) and 9 Pro Bike News 1, 2 (Mar. 1989).
  138. 15 Bicycle Forum 20 (Spr. 1987).
  139. Id. at 23.
  140. Wilson, supra note 71, at 20.
  141. Elliott, Encouraging Helmet Wearing, in BIKESAFE, supra note 76, at 355, 365, reprinted and condensed in 23 Bicycle Forum 4-9 (Spr./Sum. 1989).
  142. S. BERCHEM, A COMMUNITY CAMPAIGN THAT INCREASED HELMET USE AMONG BICYCLISTS: SUMMARY REPORT 19-20 (Traffic Engineering Division, Department of Transportation, City of Madision, WI, 1986).
  143. At least one pair of commentators noticed this opportunity early in the CPSC's existence: "The fact that at least 80% of the consumer product-related injuries may not be caused by defective or unsafe products suggests that consumer education has a large untapped potential for reducing such injuries." Miller & Parausarman, Advising Consumers on Safer Product Use: The Information Role of the New Consumer Product Safety Commission, 36 AM. MKTG. A. PROC. 372, 373 (1974).
  144. See e.g., Viscusi, Product Liability and Regulation: Establishing The Appropriate Institutional Division of Labor, 78 AM. ECON. REV. 300, 303 (1988) (Proposing that firms be exempted from product liability suits if they can demonstrate either compliance with a government regulation that leads to an efficient degree of safety or the use of a hazard warnings program that leads the market to promote an efficient level of risk.).
  145. See supra, notes 114-8.
  146. See, e.g., Landes & Posner, Adjudication as a Private Good, 8 J. LEGAL STUD. 235 (1979); Goodman, An Economic Theory of the Evolution of the Common Law, 7 J. LEGAL STUD. 393 (1978); and Rubin, Why is the Common Law Efficient?, 6 J. LEGAL STUD. 51 (1977).
  147. See e.g., P. HUBER, LIABILITY (1988).
  148. Nat'l L. J., Nov. 2, 1990, at 25.
  149. Liability suits do not directly prevent injuries, only compensate for them if fault is proved. In cases, like toxic substances, where fault is difficult to establish, liability suits may not be an efficient indicator of the correctability through standards of a safety problem. See, e.g., S. SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW 277-285 (1987), and Adler, supra note 21, at 79-80.
  150. Halvorson v. Voeller, 336 N.W. 2d 118 (1983). See also Graham, Helmetless Motorcyclists -- Easy Riders Facing Hard Facts: The Rise of the "Motorcycle Helmet Defense", 41 OHIO ST. L. J. 233 (1980).
  151. The wearing of helmets is analogous to using seatbelts. According to one recent article, the seatbelt defense in crashworthiness cases is recognized in 14 states, unsettled in 14 states, and rejected by the highest court in 14 states and by the legislature in 8 states. Westenberg, Buckle Up or Pay: The Emerging Safety Belt Defense, 20 SUFFOLK U. L. REV. 867, 886-9, 923-33 (1986).
  152. Supra note 129.

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