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Louise Smith and her husband moved from England to Denver 18 years ago and started a company selling electric dirt bikes for children.

But the company, OSET, is watching as profits are hemorrhaging. Despite three years of growing success from 2005-2008, OSET is failing, and there’s nothing the Smith’s can do about it. Why? Because a federal law intended to protect children from dangerous products containing lead has banned the sale of children’s all-terrain vehicles and motorbikes.

The Consumer Product Safety Improvement Act enacted by Congress last year was meant to serve the purpose of keeping lead away from children 12 and younger. The law bans the metal, except in small amounts, from products made for children.

But because some bike and ATV parts contain lead — because the metal is strong and able to ensure the longevity of parts — the federal government has banned the sale of bikes and ATVs for children.

“We’re damned if we do, damned if we don’t,” said Smith, noting that if OSET sells the bikes they could be prosecuted, but if they don’t, they’ll go out of business.

“At the moment, we are considering moving back to England,” she continued. “We will go where we are welcome.”

Smith points out that Colorado and the nation will lose tax revenue from businesses like OSET, which are being shut down by consequences of the product safety law.

Those in the powersports industry held a rally at the Capitol in Denver last week to voice their opposition to the current law and to encourage federal lawmakers to re-examine the measure to amend it so that bikes and ATVs for children are exempt. 

Enforcement stalling considered

The Consumer Product Safety Commission is considering stalling enforcement of the anti-lead rule for youth ATVs and dirt bikes. A vote was expected on Friday, but now officials are hopeful that the decision will be made this week. Acting CPSC chairwoman Nancy Nord and the agency’s other commissioner, Thomas Moore, said they expect the commission will vote in favor of the stay.

Of concern is the alternative — that children will be forced to ride the “far more dangerous” adult-sized ATVs.

Not good enough?

But Bryan Bosch, an ATV enthusiast who organized the rally last week, said issuing a stay does not go far enough. He is calling upon lawmakers to amend the law itself so that ATV and dirt bike dealers are guaranteed protection.

He points out that prosecutors would technically still be able to go after dealers because the law itself would have never been changed.

“The Consumer Product Safety Commission is not a law-making authority, so even if their body decides that they’re going to issue a stay of enforcement, a state attorney can still prosecute underneath federal law,” said Bosch. “So, it does not absolve a dealer from risk.”

In fact, some manufacturers are telling dealers that they’re not going to ship the product because dealers could still be prosecuted, said Bosch.

No prosecutions yet

A spokesman for Colorado Attorney General John Suthers said if the stay is issued, Suthers’ office would not take action against dealers. 

A spokesman for U.S. Attorney David Gaouette said his office would act upon whatever policy is issued by the federal Justice Department. 

Neither office has received any criminal or civil referrals.

Meanwhile, Bosch says that there has never been a documented case of a child developing lead poisoning from bike or ATV parts. 

“Kids don’t just chew on, lick, suck or ingest parts or entire motorcycles,” he said. “So, not only does the law as it concerns these products have virtually a zero chance of protecting our kids, it has a 100 percent chance of costing Coloradans jobs and actually increasing the danger to our kids.”

Some powersport dealers are noticing a decline in business by as much as 20 percent since the law took effect.

Kurt Finley, president of Colorado Powersports, said he has $80,000 worth of merchandise sitting in boxes that he simply can’t sell.

“It’s not a huge part of our business, but it’s an important part of our business, and it’s just pretty much come to a standstill,” he said.

Coffman would consider re-examination

A spokesman for Congressman Mike Coffman, R-Lone Tree, said the congressman would certainly consider re-examining the Consumer Product Safety Improvement Act to determine if there were any unintended consequences.

“Consumer product safety is supposed to do just that, it’s not supposed to really burden business with frivolous claims,” said Tyler Q. Houlton, Coffman’s spokesman.

DeGette spokesman: Bill working

But Congresswoman Diana DeGette’s office, who worked closely to develop the product safety legislation and was one of the primary negotiators during the process, said the bill is doing exactly what it is meant to do — protect children.

“She has worked very hard to make sure that dangerous toys and products, after a stream of tainted toys sickened and hurt several children, she worked very hard to put forward a bill with the intent of keeping these dangerous toys and products out of the hands of children,” said Kristofer Eisenla, spokesman for the Democratic congresswoman from Denver.

Eisenla said DeGette’s office will not look into exemptions until the Consumer Product Safety Commission completes its review of the legislation.

Smith points out, however, that as a mother of two with another on the way, she supports product safety legislation. She simply believes that the current law is too broad.

“I do actually want regulation of hazardous substances for my children. But there’s also a level of parental responsibility,” said Smith. “I wouldn’t allow my newborn to chew on what my 2-month-old is allowed to chew on, just as it’s going to be very much different from what I give my 8-year-old. There has to be sensible regulation.”

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