A July 27 public hearing by the Consumer Product Safety Commission (“CPSC”) signals that future regulatory action is likely for e-bikes and other micromobility devices and products that use lithium-ion batteries. The hearing built on the Commission’s interest in this area over the past year, and it helps lay the groundwork for the Commission’s work towards mandatory rules based on existing industry standards. Manufacturers, distributors, and retailers of these products should closely follow these developments.
The hearing[1] consisted of three panels with micromobility industry leaders, independent standard groups, and consumer safety advocates.[2] CPSC Commissioner Richard L. Trumka Jr. noted that this “broad group of experts” all urged the CPSC to adopt mandatory standards.[3]
The hearing also featured introductory video testimony from three Democratic members of the New York delegation, Senate Majority Leader Chuck Schumer, Sen. Kirsten Gillibrand, and Rep. Ritchie Torres.[4] Earlier this year, Sens. Gillibrand and Schumer introduced the “Setting Consumer Standards for Lithium-Ion Batteries Act,” which, if passed, would require the CPSC to promulgate a final safety standard for “rechargeable lithium-ion batteries used in micromobility devices.”[5]
Stakeholders testified about the scale incidents involving lithium-ion batters. New York City Fire Department Commissioner Laura Kavanagh spoke about New York City’s 13 deaths and 87 injuries this year attributed to fires started by lithium-ion batteries.[6] A September 2022 CPSC staff report identified 129 micromobility-related fatalities from 2017 through 2021 and estimated that micromobility products generated 267,700 emergency room visits in the same period.[7]
The hearing followed CPSC activity over the past year regarding micromobility safety. In December 2022, the CPSC Director of the Office of Compliance wrote to over 2,000 manufacturers and importers of micromobility products, urging adoption of “applicable consensus safety standards,”[8] specifically identifying American National Standards Institute (“ANSI”) /CAN/UL 2272 (Standard for Electrical Systems for Personal E-Mobility Devices, dated February 26, 2019) and ANSI/CAN/UL 2849 (Standard for Safety for Electrical Systems for eBikes, dated June 17, 2022).[9] The letter asserted that compliance with these standards “significantly reduces the risk of injuries and deaths from micromobility device fires,” suggesting that they are potential targets to be adopted as mandatory standards by the CPSC. The letter also stated that failure to meet these standards “could present a substantial product hazard” and noted the possibility of enforcement action against products that fail to meet them.
The hearing follows state and global activity in the micromobility space. Earlier this year, New York City passed Initiative 663-A, which requires any company that sells, leases, or distributes micromobility devices to obtain certification from an accredited testing laboratory to UL 2271 (the Standard for Batteries for Use In Light Electric Vehicle Applications), as well as the two standards the CPSC urged adoption of in its 2022 letter, UL 2272 and UL 2849.[10] The EU this year adopted a comprehensive General Product Safety Regulation.[11] China has adopted mandatory safety standards for e-bikes, with one taking effect in July of this year and another becoming effective in January 2024.[12]
Participants in the hearing also repeatedly emphasized that current compliance with the voluntary standards just identified is insufficient—a conclusion that, if true, would enable CPSC regulation. A policy counsel for the interest group PeopleForBikes raised concerns that cheaper and unsafe batteries continue to cross the U.S. border due to the $800 de minimis threshold under which goods can enter the U.S. without inspection, duty fees, or taxes.[13]
Despite the diverse consensus favoring a stronger mandatory standard, the timeline for a mandatory standard remains unclear. CPSC Chair Alexander Hoehn-Saric spoke in his closing remarks about the “burdensome and slow” process to develop new rules under the Consumer Product Safety Act.[14] In particular, the Act requires the Commission to prove that any standard is the “least burdensome” means to reduce risk, which has historically proven difficult to satisfy.[15] However, the Setting Consumer Standards bill featured at the hearing would exempt the CPSC from this requirement, similar to laws Congress has previously enacted regarding specific product categories.
Manufacturers, distributors, and retailers of micromobility products and their component parts, particularly lithium-ion batteries should carefully monitor CPSC activity in this area and assess their product lines against the standards referenced in the CPSC’s December 2022 letter. The voluntary standards are also evolving: A potential standard revision to UL 2271, was submitted last month, the second this year.[16]
In his closing remarks, Chair Hoehn-Saric also urged retailers and “online marketplaces” to require that any products sold comply with these standards, implementing systems to identify and remove any products not meeting the standards before reaching consumers.[17]
A video of the hearing is available on the CPSC’s website.[18]
If you have any questions concerning the material discussed in this client alert, please contact the members of our Product Safety practice.
[4] CPSC’s Forum on Lithium-ion Battery Safety, supra note 1.
[5] S.1008 - Setting Consumer Standards for Lithium-Ion Batteries Act, CONGRESS.GOV, https://www.congress.gov/bill/118th-congress/senate-bill/1008/text (last visited Aug. 2, 2023).
[6] Industry asks CPSC for mandatory battery regulations, supra note 2.
[13] Industry asks CPSC for mandatory battery regulations, supra note 2.
[15] See 15 U.S.C. § 2058(f)(3)(F).
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