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Legally Speaking – with Bob Mionske: Gimme a brake

Dear Bob,A few years ago I bought a racing bike in Seattle after not having bought one in the United States for over twenty years. As a lefthander, I had in the past always asked the bike shop to “reverse the brakes,” so the left brake lever works the front brake. I was told it was against the law in Seattle to do this. I have since bought a new bike in North Carolina. The bike shop said there was no such law. Who is right?D.D.North Carolina Dear D.D.Um, well . . . .they both are! In the United States, federal laws are contained in a set of volumes called the United States Code (USC), which

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By Bob Mionske

Dear Bob,A few years ago I bought a racing bike in Seattle after not having bought one in the United States for over twenty years. As a lefthander, I had in the past always asked the bike shop to “reverse the brakes,” so the left brake lever works the front brake. I was told it was against the law in Seattle to do this. I have since bought a new bike in North Carolina. The bike shop said there was no such law. Who is right?
D.D.
North Carolina

Dear D.D.
Um, well . . . .they both are! In the United States, federal laws are contained in a set of volumes called the United States Code (USC), which is divided by subject. These rules are located in the Code of Federal Regulations, or CFR. Buried in Volume 16, Part 1512 of the CFR are the Consumer Product Safety Commission’s (CPSC) “Requirements for Bicycles,” which are 21 pages long. There are rules for handlebars, chains, forks and frames, seats, reflectors and tests for bicycles. And yes, there are rules for handbrakes.

Handbrake levers can only be attached to handlebars. They must point forward and be accessible to the rider. They must be capable of being activated with a gripping force no greater than ten pounds. The gripping distance between the brake lever and the handlebar can be no greater than 89 mm, although the lever can taper out at the end. And 16 CFR 1512.5(b)(8) says:

(8) Hand lever location. The rear brake shall be actuated by a control located on the right handlebar and the front brake shall be actuated by a control located on the left handlebar. The left-hand/right-hand locations may be reversed in accordance with an individual customer order. If a single hand lever is used to actuate both front and rear brakes, it shall meet all applicable requirements for hand levers and shall be located on either the right or left handlebar in accordance with the customer’s preferences.

Let’s pretend for a minute that the “customer preference” language isn’t there, and that all bikes must be sold with the rear brake on the right. What would that mean? There is an area of law called “products liability.” In some ways, it’s like negligence, but it is just different enough to trip up most unsuspecting lawyers, so it’s a favorite exam topic for sadistic first-year law professors. Generally speaking, if a product is defective in design or construction, and it travels through the “chain of commerce,” and the defect injures a consumer, everyone along the chain is liable, and the injured consumer doesn’t have to prove that anyone was negligent. All that the consumer must show is: 1) the product was defective; 2) it was defective when it left each merchant’s hands; 3) a better design or assembly was humanly feasible.

Therefore, if a bicycle manufacturer reversed the brake levers in violation of the CPSC regulations, that would probably expose them to legal liability in the event of a related injury- but this is a big presumption.. If a bicycle dealer pulled a bicycle out of the factory box, reversed the levers and didn’t tell the customer, that could amount to either a product liability tort or negligence or both. If the bike shop reversed the levers in response to a specific customer request, I think it would be a hard case to make either way.

Finally, the Rule itself specifically exempts customer requests from the requirement, so I think it would be very, very difficult to argue that a bicycle altered in accordance with a customer request was defective. (My researcher, Bruce Epperson, swears that when he was a bicycle mechanic in the early 1980’s he saw a pair of gum-rubber brake hoods marked “F” and “R”!)

Speaking of the CPSC, there is an interesting history with regards to bicycles. The CPSC regulations concerning bicycles were first issued in draft form in 1971 by the Food and Drug Administration under the authority of the Federal Hazardous Substances Act, and were intended for bicycles used “by children less than 16 years of age.” In 1973, the responsibility for the Hazardous Substances Act was transferred to the Consumer Product Safety Commission (CPSC), and new enabling legislation, the Consumer Product Safety Act, was passed. In 1974, the CPSC issued a revised draft that now included all bicycles, not just children’s bicycles.

The CPSC was inundated with 267 comments filed in response to the publication of the draft, over half of which protested the application of the proposed rules to adult bicycles. The CPSC responded that “no workable distinction could be drawn between bicycles intended for use by children and those intended for use by adults.”

Subsequently, the cycling advocate John Forester and the Southern Bicycle League filed suit in Forester v. Consumer Product Safety Commission challenging the authority of the CPSC to issue the rules. John, an engineer, chose to represent himself pro se, that is, without a lawyer.

The original Hazardous Substances Act allowed only the regulation of “any toy, or other article intended for use by children.” The new 1973 act limited the CPSC to only the powers authorized in the old 1971 act. Thus, the CPSC was bound by the “intended for use by children” language.

John argued that it didn’t take much gray matter to figure out if a bicycle was intended for use by children:

“[Forester] concludes that it is easy to determine which bicycles are intended for use by children: those are small and primarily cheap.”

The CPSC, on the other hand, argued that any bicycle children could get their hands on was “intended” for them:

“The commission is aware that a large percentage of bicycles produced, particularly in recent years, are light-weight, relatively expensive and sophisticated . . . However, these same bicycles can be, and are, used by children and adolescents. It is clear there is no precise way of distinguishing between those bicycles intended exclusively for adults and those intended for children as well as adults.”

Note the way the CPSC cleverly avoided John’s argument: “Yes, Mr. Forester, all children’s bikes are children’s bikes, but because adult bikes can be used by children, they are also children’s bikes. Thus, there is no such thing as an “adult’s bicycle.” Maybe yes, maybe no, but irrelevant—the statute only references items intended for children, not used by children. The word “intended” is dispensed with in the CPSC’s argument, and replaced with “used.” And that’s exactly the argument the CPSC brought to court:

The Commission finds that bicycles intended for all children under 16 years old include all bicycles except those specifically exempted the regulations . . . track bicycles and custom “one-of a-kind” bicycles.

The court struggled with the dilemma:

It is plain enough that such articles as rattles, dolls stuffed animals, nursery and playground equipment, and infants’ carriages and strollers, which are intended only for use by children, fall within the statutory term. On the other hand, the mere fact that a child might get hold of an article kept in the home but intended solely for use by adults, such as a regulation size golf-club or rifle, would scarcely make the statute applicable. Between these ends of the spectrum is a case like this where the article is intended primarily for use by adults but also for use by children when playing with them.

The Forester court decided for the CPSC based on a definition of “intended” used in tort law, an application any administrative lawyer would have blown out of the water in five minutes. Looking back on the case, John said:

“When you sue a governmental regulatory agency you are not allowed to have a trial of fact. That means that you are not allowed to call the agency’s engineers to testify by answering questions that might give real answers. You can’t ask an engineer ‘What tests did you do about …?’ or ‘What data was available to you to guide your choice of . . .?’ All you can do is to submit to the court written complaints that the agency acted lawfully and receive written answers from the agency’s attorneys.”

John, an engineer, felt strongly that the facts and data that the CPSC based their rules on were faulty. However, he is correct–in the appeal of an administrative decision, only issues of law can be argued. However, the definition and legal application of the word “intended” is an issue of law, and to this day John may not realize how close he came to invalidating the jurisdiction of the Consumer Product Safety Commission to enact regulations establishing standards for bicycles not exclusively built for children. In 1976 there simply weren’t that many lawyers willing to work pro bono—without a fee—on bicycling issues, and I suspect that if John had been able to get help he would have taken advantage of it. All those cardboard boxes in the back of the repair shops in every bike store in America overflowing with disposed-of CPSC reflectors are mute testimony to Forester’s Quixotic challenge.
Good luck- Bob
(Research and drafting provided by Bruce Epperson J.D.)