CPSC Lithium-Ion Battery Safety; Notice of Meeting on July 27 2023 and Request for Comments

UPDATE 8/1/23: Today I received a Federal Register notice of the CPSC's "Semiannual Regulatory Agenda" just days after the meeting below. What stands out to me is that this document "...includes an agenda of regulations that the Commission expects to develop or review during the next 12 months." and there is no mention or reference at all in this very long document about ebikes, lithium batteries, bicycles or 16 CFR part 1512 (the bicycle and e bike regulation). Again these come out twice a year and we know that Congress is pushing CPSC to regulate ebikes via this bill but I don't thinks its likely that there will be anything significant happening at CPSC re batteries or ebikes until this bill passes. I might be wrong but I don't think anyone should be holding their breath in the next 12 mo for some regulations coming forth from the CPSC on the issues in the meeting referenced below. The proposed de minimus bill (H.R.4148 - Import Security and Fairness Act 118th Congress (2023-2024)) may also help the battery import situation well before CPSC acts.

Prior Post June 5 2023:

The Consumer Product Safety Commission will be holding a meeting on lithium-ion battery safety, with a specific focus on fires occurring in e-bikes and other micro-mobility products as well as the fire risks that may arise with the growing consumer market for other products containing such batteries. They are inviting interested parties to participate in or attend the meeting. A remote viewing option will be available for registrants. CPSC also invites interested parties to submit written comments related to the issues discussed in the notice.

There was allegedly going to be broader rulemaking announced on human powered bikes and or all of 16 CFR part 1512 as well but that notice has not yet appeared. That story appeared in Bicycle Retailer. It is not clear if this current notice is related to the notice discussed in Bicycle Retailer

If you wish to submit written comments for the record, you may do so before or after the meeting, as described in the ADDRESSES section of the notice. These written comments should be received by no later than August 21, 2023.  Please refer to the notice for the topics that the CPSC would like to see addressed.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright |

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California Court rules that Amazon does have liability for a defective product (Bolger v Amazon.com LLC)

This article was reprinted with permission from Bicycle Retailer and Industry News  

By Steven W. Hansen, Esq. 

Update 11/19/20: The California Supreme Court on 11/18/20 denied Amazon.com LLC’s bid for judicial review of this case decided earlier this fall. So that mean this case is now a legally cite-able precedent and is "the law" in Calif.

An appeals court in California ruled Thursday that Amazon is not shielded from liability for defective products sold by third-party sellers through its online marketplace.

Nationally this California Appellate case is one of the first decided against Amazon holding them directly liable for a defective product sold on its marketplace. It remains to be seen what happens on somewhat similar cases pending in state and federal courts throughout the country. On a related issue, the California Legislature is considering a bill (AB-3262 Product liability: electronic retail marketplaces) that would treat “electronic retail marketplaces” like retailers for purposes of California strict liability law. The future of this bill is uncertain and most if not all of California law regarding product liability is case law not statutory law.

The plaintiff in the California case, Angela Bolger, bought a replacement laptop computer battery on Amazon.com in 2016.

The listing for the battery on Amazon identified the “seller” (“sold by”) as “E-Life,” a fictitious name used on Amazon by Lenoge Technology (HK) Ltd. (Lenoge). Amazon charged Bolger for the purchase, retrieved the laptop battery from its location in an Amazon warehouse, (as this was an “FBA” sale or “fulfillment by Amazon”) prepared the battery for shipment in Amazon-branded packaging, and sent it to Bolger. Bolger alleged the battery exploded several months later, and she suffered severe burns as a result.

Interestingly a month after the purchase Amazon suspended Lenoge’s selling privileges because it became aware of a “grouping” of safety reports on Lenoge’s laptop batteries and Lenoge did not respond to Amazon’s requests for documentation. Three weeks later, Amazon permanently blocked Lenoge’s account.  Bolger sued Amazon in January 2017 and several other defendants, including Lenoge, alleging causes of action for strict products liability, negligent products liability, breach of implied warranty, breach of express warranty, and “negligence/negligent undertaking.” Lenoge was served but did not appear, so the trial court entered its default. Other entities were sued as well but foreign service of process was going to take 2-3 years. Three months after suit was filed, Amazon sent Bolger an email warning her that Amazon had learned that the Lenoge replacement battery “may present a fire hazard or not perform as expected…If you still have this product, we strongly recommend that you stop using the item immediately.”

What is most interesting to us is that there is no record of any CPSC recall regarding this battery or related companies which would be required before any notification were sent to a consumer regarding a safety issue; unless of course Amazon did not consider itself a seller or in the retail chain. Ironically there is still an Amazon seller named “Lenoge” selling laptop batteries on the site as of this writing.

After almost two years of litigation, Amazon moved for summary judgment, arguing primarily that the doctrine of strict products liability, as well as any similar tort theory, did not apply to it because Amazon did not design or manufacture the product, sell or distribute the battery, set the price, provide a warranty, or control the terms of the product offer. Similarly, Amazon argued it was not involved in sourcing the subject battery from the manufacturer or upstream distributor.” Amazon also submitted a declaration from an Amazon senior manager responsible for product safety, investigations, and recalls who asserted that “E-life retained title to the battery at all times,” and “E-life was also responsible for ensuring the battery that it sold to [Bolger] was properly packaged and complied with all applicable laws.” The Amazon manager acknowledged Amazon’s A-to-z Guarantee, but she denied it was a warranty. She stated, “The only warranty provided for a product comes from the third-party seller.”

The trial court judge agreed with all of Amazon’s factual and legal arguments (even though there were likely disputed facts that could have prevented the motion from being granted), and granted Amazon’s motion, and entered judgment accordingly. 

The three-judge panel at the Court of Appeal, strongly disagreed in a very well reasoned decision. We strongly urge readers to take a look at the opinion starting at page 18 as it pretty much lays out the entire basis of product liability in California and how Amazon’s attempt to shield itself from liability was really a smokescreen for its true role in the chain of distribution.

Initially the court pointed out that “Essentially the paramount policy to be promoted by the [product liability doctrine] is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.” But “the facts must establish a sufficient causative relationship or connection between the defendant and the product so as to satisfy the policies underlying the strict liability doctrine.” The court looked at older decisions where product “facilitators” had benefited from service charges in providing the product and finding liability as the “overall producing and marketing enterprise is in a better position to insure against the liability and to distribute it to the public by adding the cost thereof to the price of the product.” 

One of the key factors (although perhaps not the deciding factor) in this case was that the Lenoge supplier was participating in the FBA program with Amazon. The court painstakingly went thru the process of how the battery got from Lenoge to Amazon and from Amazon to the consumer and that Amazon was an “integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.”. The court painstakingly went thru all of the policies underlying the doctrine of strict products liability to confirm that the doctrine should apply.

First, Amazon, like conventional retailers, may be the only member of the distribution chain reasonably available to an injured plaintiff who purchases a product on its website. 

Second, Amazon, again like conventional retailers, “may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end; the retailer’s strict liability thus serves as an added incentive to safety.”

Third, Amazon, like conventional retailers, has the capacity to adjust the cost of compensating injured plaintiffs between itself and the third-party sellers in the course of their ongoing relationship.

Amazon focused on dictionary definitions of “seller” and “distributor” and claimed it could not be held strictly liable because those definitions do not apply to it. It characterized its business as a service, i.e., a forum for others to sell their products, and therefore outside the rule of strict liability. The court felt Amazon’s arguments were unpersuasive.

First, regardless of whether Amazon selected this particular battery for sale, it chose to host Lenoge’s product listing, accept Lenoge into the FBA program, take possession of the battery, accept Bolger’s order, take her payment, and ship the battery to her. Amazon was therefore part of the chain of distribution even if it did not consciously select the Lenoge replacement battery for sale. Second, and more fundamentally, Amazon did choose to offer the Lenoge replacement battery for sale. Amazon was no mere bystander to the vast digital and physical apparatus it designed and controlled. The court reasoned Amazon made these choices for its own commercial purposes and so it should share in the consequences.

Many of the arguments Amazon asserted were contradictory. For example, Amazon argued that it did not set the price for third-party products and therefore cannot “spread the cost of defects across units sold.” But as Amazon noted, it does control its fees. If it desires, it can increase fees on high-risk products, or all products, and thereby spread the cost of compensating consumers injured by such products.  Of course, this is the problem in general with low-cost products. Costs must be cut somewhere and one of the ways to do that is by avoiding product liability and insurance costs. This is typically the case with overseas companies beyond the reach of US courts. But of course, the argument here is that Amazon does in fact have control over these overseas companies and can force them to insure Amazon.

Amazon also contended (as all internet companies do) that, regardless of its liability under California law, it is shielded by the federal Communications Decency Act (1996). The court ruled against Amazon on this issue as well as under existing case law, “while the [CDA] protects interactive computer service providers from liability as a publisher of speech, it does not protect them from liability as the seller of a defective product.” Here the liability was based on Amazon’s own conduct, as described above, not the content of Lenoge’s product listing. The court also distinguished eBay cases where eBay was not found responsible for users' false product listings.

It is important to point out that this appellate decision will almost surely be appealed by Amazon to the California Supreme court and that it could take well over a year for a final decision from that court. Once that decision comes down from the CA Supreme court (Its unclear if the US Supreme court would agree to hear this case) the case may still be sent back to the trial court for trial and appealed again from a verdict. Or the case may settle and this opinion and/or any Supreme Court opinion would stand as the law. Amazon may seek to “de-publish” the opinion so it could not be relied on as precedent. That outcome is unlikely in this case. 

The issue of Amazon’s strict liability for third-party sales has been, and continues to be, litigated in state and federal courts across the country. Some hold Amazon strictly liable while others do not.  Many of the other cases are factually distinguishable, including because the product at issue was NOT sold through Amazon’s FBA program (as in the Bolger case). Also other state statutes or case law have limited strict liability in a manner inconsistent with California law.   

So now what are the implications of the Bolger case? Well knowing Amazon and how it likes to assert its leverage over sellers, it will likely immediately start requiring very large insurance policies naming it as additional insured for all third party sellers (but especially those who use FBA) As California is such a huge market for Amazon and Amazon cannot be sure where a third party seller product may be shipped, any decision in any state holding Amazon responsible will make it such that Amazon will have to enforce the insurance requirements system-wide. Also as most plaintiffs do not pursue entities in other countries that require complex foreign service and jurisdictional issues to be overcome, it will be interesting to see how this decision forces Amazon to force the small sellers to pony up when it comes to the defense and indemnification of Amazon. The overall effect will likely be increased prices on the Amazon third party platform (even more so that post-COVIID-19) which may hurt it in its fight with Walmart.

This decision was a long time in coming but I had to say the writing was on the wall. The decision is a great read for those that want to learn about how Amazon deals with sellers. Amazon wants a big piece of the sales pie. It wanted to have total control over sellers and buyers while keeping the two isolated from each other. But when it came to liability its position was “oh we don’t sell anything and have nothing to do with the marketing of the product”. Well that facade has now been severely eroded. The emperor's lack of clothes has now been pointed out in a court decision that will be heard around the world.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use

Legal analysis: Confusion over electric bike regulations

Published July 29, 2013 in Bicycle Retailer and Industry News
Republished with permission

by Steven W Hansen

After reading two articles in BRAIN’s June 15, 2013 issue (“Speedy e-bikes trouble industry” and “NYC e-bike crackdown exposes legal morass”) as well as a follow up letter to the editor in the July 1, 2013 edition, I was compelled to respond to some apparent misunderstanding by some as to what the “laws and regulations” are with respect to electric bikes and how they do and don’t work together.

First of all there is quite a bit of confusion regarding terminology. I am going to use the phrase “electric bikes” to cover all “bicycles” (not stand on scooters without a seat) which have an “electric motor” to (help) propel them. The industry has evolved into “low speed” electric bikes and “high speed” electric bikes and various configurations which require no pedaling (or may not even have pedals) to the various “pedal assist” varieties, in which the motor wont help you unless you help it. But I digress.

Before 2003 there was really very little in the way of laws or regulations dealing with electric bikes. California passed a few laws in 1998 dealing with what at the time was a new phenomenon and those laws still exist today (more on that later). But the main event that started the ball rolling was when the bicycle industry was able to get Congress to pass a law amending the Consumer Product Safety Commission’s (CPSC) definition of a “bicycle” to include “low speed electric bicycles” which is defined as a “two- or three-wheeled vehicle with fully operable pedals and an electric motor of less than 750 watts (1 h.p.), whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 mph.”

This did help clarify the CPSC’s jurisdiction. Before 2003 there was a legitimate question if CPSC had “regulatory” authority over all electric bikes (as “consumer products”, its generally mandated scope of authority) or if it overlapped the Dept. of Transportation (DOT) and its sub agency the National Highway Transportation Safety Administration (NHTSA). NHTSA defined (and regulated) “motor vehicles” (and still does today) as a “vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways…”

From the 2003 change in the regulations it was clear that the CPSC only wanted to carve out a small(er) part of the “electric bike” market to similarly regulate as “bicycles” (no new regulations were adopted to deal with the manufacture of electric bikes, just the definition).

Unfortunately this still left NHTSA holding the bag sort of speak on what to do with all the “other” electric “devices” not regulated under CPSC’s new 2003 “carve out”. Before 2005 NHTSA had taken a somewhat ad hoc approach to requests for clarifications from electric or “motorized” bicycle manufacturers (and others) as to whether specific devices were “motor vehicles” or not. But after the CPSC acted in 2003 NHTSA then began a “notice of draft interpretation and request for comments” (aka “rulemaking” without intervention by Congress) in 2005 to help clarify when certain two and three wheeled motorized devices would be deemed “vehicles” and regulated by NHTSA and when they would not be. The problem of course is that one agency can only determine the scope of its own regulatory authority, not that of another agency. NHTSA placed great emphasis on the 20 mph limit that CPSC focused on. They also differentiated a ‘‘Motor-driven cycle’’ previously defined as “motorcycle” “with a motor that produces 5-brake horsepower or less.’’ NHTSA adopted the 20 mph limit as a more decisive factor as opposed to previous rulings as it concluded “that the maximum speed of a vehicle with on-road capabilities is largely determinative of whether the vehicle was manufactured to operate on a public road, in normal moving traffic, and therefore a ‘‘motor vehicle.’’

Unfortunately the method to determine that speed was much more involved than the CPSC’s method and could yield slightly different results. Also the “draft interpretation” remained vague for two and three-wheeled vehicles with a speed capability of 20 mph or greater. Those vehicles would be excluded from the definition of ‘‘motor vehicle’’ if they were manufactured primarily for off-road use. To determine that question NHTSA would again revert to the case by case approach of looking at the physical features of the vehicle to see if was intended for on or off road use. Again NHTSA does not regulate any off road vehicles like off road motorcycles for instance. Those all fall under CPSC jurisdiction (by default, if it’s a “consumer product”), yet there are no CPSC regulations specifically for such electrically powered devices (if they don’t meet the CPSC definition of a “low speed electric bicycle”). Finally, the NHTSA 2005 “draft interpretation” is still in “draft” stage and is no more binding that any opinion letter from NHTSA. It is not a regulation like CPSC’s electric bike definition and from discussing the matter with the NHTSA legal department there is nothing indicating that will change any time soon.

The electric bike manufacturers and distributors are for the most part satisfied with the way the laws are currently written (or at least interpreted) at the federal level. However some would like to see better and more clear regulation of the over 20 mph category as they apparently are trying to do in the EU with “fast or speed pedelecs.”

The trickier issue of course was raised once again in the article “NYC e-bike crackdown exposes legal morass” which brings to light what many fail to realize about the federal regulations. First none of the electric bikes that fall within the regulations (under 20 mph) have any specific regulations directed at electric bikes other than simply defining what is and to some extent what is not an electric bike (neither NHTSA or CPSC have regulations covering the motors or throttle devices, for example).

Over the years states have basically borrowed NHTSA’s definition of a motor vehicle along with all the regulations governing their manufacture and have incorporated those into their state laws. States have similarly regulated bicycles utilizing the 1973 CPSC bicycle standard as a basis. But with electric bicycles the process seemed to happen in reverse. Electric bicycles popped up and states, caught by surprise, felt they needed to deal with them on their roads and sidewalks, as CPSC and NHTSA failed to timely regulate their manufacture. Some of these laws unfortunately also had to define what the state felt an electric bike was and was not and in some cases this can conflict with federal law.

The other problem is that these federal regulations only affect the manufacture and first sale of these devices, not where, when, how, who and under what other conditions (age limits, licenses, insurance, registration etc.) they can be operated. The federal law has no “preemptive effect” over such state laws. These issues have always traditionally been regulated by state laws and in some cases even county and city laws. This is also true for cars, trucks and traditional non-powered bikes. CPSC mandates how bicycles must be tested and sold and what standards bicycle helmets must meet in their testing and construction but it does not mandate that riders must use the helmets while riding bicycles. That is left up to states or cities to regulate. The same was true for bicycle headlights and tail lights. CPSC does not require them on bikes but most state laws do if riding on road at night. This issue was hotly contested in a serious injury case some years back.

I approached the electric bike industry in 1995-2000 with a two pronged approach; Try to develop some voluntary standards for electric bikes that could be adopted by NHTSA or CPSC (much like they adopted the ASTM bicycle helmet standard) and then try to use model “use” legislation at the state level incorporating the ASTM standards and classifications. The proposal drew interest but was not acted upon by enough influential companies at the time. This legislative approach was somewhat followed by Google with it driverless car legislation passed in California and Nevada recently. Segway also tried a similar approach to pave the way for sales of its totally new type of device.

But the electric bike industry is following the traditional, difficult and time consuming approach. Let consumers buy the products and once a critical mass of the devises is in use there will be legislative “fixes” to accommodate the safe use of mainstream devices. The problem of course is that this is a car centric country, where drivers don’t like bikes of any kind on “their” roads, and many state legislators don’t really like Washington DC’s approach to anything. This was clear in the comments from states to NHTSA’s proposed regulation in 2005. Hopefully this method will work as it may be too late for the “pave the way with legislation first” method. The EU also tried to get a regulatory framework in place before the market was flooded with various devices and in some respects it worked as the EU market is much larger than the US market right now for electric bikes. There are other reasons as well.

Another issue to keep in mind are what some refer to as “fast” electric bicycles, which can travel over 20 mph solely on motor power. The fact that these “fast” electric bikes can travel over 20 mph solely on motor power takes them outside the scope of the CPSC definition of a “low speed electric bicycle”. Some sellers of these “fast” electric bikes claim that these bikes are designed for “off road” use. However, this may be a way to get around the CPSC and NHTSA regulations (and possibly some state laws), since some of these bikes appear to be designed for road use, as opposed to “off road” use (using the NHTSA interpretations). These “fast” e-bikes are causing debates in some states, notably in New York as noted in the article “NYC e-bike crackdown exposes legal morass”.

As pointed out above, the CPSC’s definition of an electric bike centers around a 20 mph limit, with the caveat that this 20 mph must not be exceeded if the electric bike is solely powered by its motor. Accordingly, this definition permits an electric bike which is powered by its rider (with the possible assistance of a motor, making the electric bike what some call a “pedelec”) to travel faster than 20 mph. The distinction is key to a correct interpretation of the CPSC’s definition.

Lastly, on a related topic altogether, some people appear to be confused about where the regulations fit in to the overall scheme of things in terms of liability. If a rider is injured by or on an electric bike, compliance with a regulation or standard (mandatory or otherwise) is not going to be of much help other than possibly being persuasive. (read more on that here). However failure to comply with a regulation (that is applicable) really can create an uphill battle in court. But again the facts of each specific case will be vastly different and drawing conclusions from specific cases will be difficult.

In the meantime it will be interesting to see what develops out of New York and if there is a state or city wide solution. As most in the industry know trying to lobby government officials to your point of view is a tricky business and fraught with pitfalls.

Steven W. Hansen an attorney who defends product manufacturers, distributors and retailers in product liability lawsuits and provides consultation on all matters related to the manufacture and distribution of consumer products. For further questions visit www.swhlaw.com or send an e mail to: legal.inquiry@swhlaw.com

The information in this column is subject to change and may not be applicable in your state. It is intended as a thought provoking discussion of general legal principles and does not constitute legal advice. Any opinions expressed herein are solely those of the author.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2013 Conditions of Use