- The Washington Times - Wednesday, October 31, 2001

The Consumer Product Safety Commission yesterday filed suit against a major BB gun manufacturer, seeking a recall of 7.5 million air guns.
The suit, spearheaded by commission Chairman Ann Brown, seeks to force the Daisy Manufacturing Co., which makes the popular Red Ryder and Powerline air guns, to notify the public that the model 880 and 856 Powerline air guns are defective.
Daisy Manufacturing Co., which is based in Rogers, Ark., has been making outdoor products and firearms for more than 115 years. The lawsuit against the company came after a 2-1 vote by the commission, with Republican Mary Sheila Gall opposed. Commissioner Thomas Moore, a Democrat, voted with Mrs. Brown.
"Daisy has refused to recall these products voluntarily, which is why we are pursuing this lawsuit," said Mrs. Brown, an appointee by President Clinton whose last day as a commissioner is tomorrow.
The Consumer Product Safety Commission is the government agency that oversees the safety of products sold in the United States and can request companies to voluntarily recall their products.
Mrs. Brown announced her resignation as head of the agency in August, and at the time said she would be pursuing "a major recall [or lawsuit] regarding a very dangerous product that kills and maims children." At a press conference announcing the lawsuit, she conceded that the suit against Daisy was something she wanted to file while still in office.
The CPSC does not have the power to order a recall. Rather, the commission can request a company recall its product. Only after a company refuses a voluntary recall can the CPSC file a lawsuit asking a judge to order one.
The CPSC suit, filed after a 16-month investigation, says Daisy's Powerline air gun has a defect that can cause BBs to become lodged in its magazine even though the gun can appear empty. The agency also argues that the Powerline air guns' lack of an automatic safety system makes the guns defective.
The recall could be in question for some time.
An administrative law judge will hear the lawsuit within the year, at which time Daisy may appeal.
The cloudy future of the CPSC leadership may be a factor as well.
After Mrs. Brown's departure tomorrow, the CPSC will be without a commission head until one is nominated by President Bush and approved by the Senate. Mr. Bush had nominated Miss Gall, but her nomination was rejected after a fiery Senate hearing.
The agency has investigated Daisy air guns numerous times. In 1996 the commission looked into the safety of the 880 Model and found no defect. In May 2000, the CPSC began an investigation into the gun after learning that Daisy had made changes to the Powerline 856 Model to fix potential defects.
The CPSC argues that the design changes were not effective in ensuring BBs would not get stuck in the gun, and that all 856 and 880 models are still defective. The CPSC hired a gunsmith and materials expert for its investigation, Mrs. Brown said.
But Miss Gall, who offered a strong dissenting opinion, said no written report of their work exists.
A Republican who often has been at odds with Mrs. Brown on recall issues, Miss Gall argued in her dissenting opinion that BBs getting lodged in the air gun was "not a substantial product hazard."
According to Miss Gall, the CPSC staff found that the lodging problem was associated with three deaths and 47 injuries between 1972 and 2001.
"While any death or serious injury is tragic and heart-rendering for the family involved, I note that the average number of deaths per year associated with use of bicycles by children aged under 15 is 250," Miss Gall said in her dissenting opinion.
According to figures released by Mrs. Brown, 15 deaths and 171 serious injuries have been attributed to design and manufacturing defects by Daisy Powerline air guns.
Mrs. Brown and others blame the sticking point on the accidental death of a Pennsylvania boy in 1999. The 16-year-old, Tucker Mahoney, was shot in the head by a friend and received permanent brain damage. The friend claimed he thought the gun was empty when he fired it. The Mahoney family sued Daisy in 1999 and received an $18 million settlement. Becky Mahoney, Tucker's mother, spoke briefly about the accident yesterday.

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