DocketNumber： No. 80-1382
Citation Numbers： 645 F.2d 26
Judges： Seth, Weinshienk
Filed Date： 3/27/1981
Status： Precedential
Modified Date： 11/4/2024
This appeal is taken from a summary judgment for the Consumer Product Safety Commission, and the denial of a motion for summary judgment of appellant Bell Enterprises, Inc.
The basic issue on appeal is whether plaintiff’s aerial tramway, used as an amusement park ride, is a “consumer product” within the meaning of the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq.
After an accident involving an amusement park tramway in Texas, the Commission began an investigation of such rides. The “Skyride” here concerned is an aerial cable tram of a type in general use in amusement parks. The Commission sent a letter to Bell Enterprises in Tulsa, Oklahoma, requesting information on the Skyride it was operating in its amusement park. This letter asked a series of questions concerning the business of Bell Enterprises and suggested that a failure to provide information could subject Bell to “penalties” up to $500,000.00, and an individual could be subjected to criminal penalties. The letter so attempted to be persuasive.
Bell Enterprises thereafter filed this suit seeking a declaratory judgment that the Consumer Product Safety Act is unconstitutional insofar as its investigatory authority is concerned, and that the Act is inapplicable to -amusement parks and amusement park rides. The Commission a few days after suit was filed issued a Special Order and Subpoena for Production of Documents. Both sides moved for summary judgment. The court held that the Skyride was a consumer product over which the Commission had jurisdiction, and that Bell’s Fourth Amendment rights were not violated. Bell has taken this appeal.
On the issue whether the Skyride or similar rides are “consumer products” within the meaning of the Act, several courts have considered the problem and reached different results. See State Fair of Texas v. Consumer Products Safety Commission, 481 F.Supp. 1070 (N.D.Tex.); Consumer Product Safety Commission v. Chance Mfg. Co., 441 F.Supp. 228 (D.D.C.); Walt Disney Productions v. Consumer Product Safety Commission, No. 79-0170-LEW (Px) (C.D.Cal.).
The Act, 15 U.S.C. § 2051 et seq., was enacted after two or three years of hearings and extended investigations. The history is long even before the legislation was considered by Congress, and the consideration during formal proceedings in Congress was extensive. We cannot herein describe
The term “consumer product” is defined in the Act at 15 U.S.C. § 2052(a)(1) as follows:
“The term ‘consumer product’ means any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise; but such term does not include—
“(A) any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer .. .. ”
It appears from the legislative history that the (i) phrase was the original or early version and (ii) was added later when consideration was given to distribution of articles to consumers not by sale but by gift, promotional samples, etc. In view of this legislative history it appears best to consider the definition as it was originally constructed and before the concern arose that consumers might also be subjected to dangers from articles which had not been produced or distributed “for sale.” Thus considering (i) above, the phrase is directed to the type or kind of articles which are produced or distributed for sale to a consumer. This is a direct, uncomplicated definition, a practical test, and of relatively easy application to the vast number of articles as to which the hearings were directed. This is where the concern was, and it is apparent why those articles were initially described as “household” items.
Then with the concern over distribution to consumers of articles as free samples, on approval, on lease, on loan, etc., the second clause (ii) was added. This was added to include distribution to consumers of the same things but without a sale, and thereby to include articles produced or distributed “for the personal use, consumption or enjoyment of a consumer.” This with (i) was to cover all types of distribution.
The legislative history is clear as to the reason why (ii) was added. In the construction of the definition as a whole it must be assumed that (ii) was added for the purpose stated without an intention to enlarge the definition to include articles which were not included in (i).
Since (ii) was added to cover all manner of distribution and for this alone, we should attach no significance to the addition of the word “personal” in (ii). Thus “personal” use in (ii) is no different under this view than “to a consumer for use” in (i).
If the definition is considered as outlined above, and this would appear to be in accordance with its structure and terms and with the legislative history, there is no room for the all-inclusive coverage urged by the Commission in its complete reliance on (ii). The coverage so urged is basically that any article which the consumer enjoys is a consumer product. Instead, the meaning of the (i) phrase must be regarded as controlling, not the “enjoyment” in (ii).
In ASG Industries v. Consumer Product Safety Commission, 593 F.2d 1323 (D.C. Cir.), the product considered was glazing material used in doors. The court there rejected the Commission’s position that clause (ii) had extended the (i) definition. The court said, at 1328:
“As we brought out in Anaconda, clauses (i) and (ii) of the definition were designed to ensure that the term ‘consumer product’ would encompass the various modes of distribution through which consumers acquire products and are exposed to the risks of injury associated with those products — not only direct sale transactions, covered by clause (i), but also any lease, promotional gift, or purchase by an institution, for consumer use, covered by clause (ii).”
In considering the definition further another and separate aspect becomes significant. It should be noticed that in (i), as well as in (ii), the description changes within each phrase from one directed to place of
The definition at § 2052(aXl) obviously required a great amount of thought, consideration, and condensation. Any analysis of it must be done with that in mind. Thus the use place and the use purpose are each stated and are repeated. Both must be met in view of the way in which the definition is constructed.
The purposes for production to identify the article appear again in the exception in the (A) subdivision. 15 U.S.C. § 2052(a)(l)(A). This exception uses a customarily produced or distributed test. This excludes articles not “customarily produced or distributed for sale to . ..,” and again as to items not sold, “or use or consumption by, or enjoyment of, a consumer.” The exclusion repeats to a large extent, but an exclusion in a definition is a device to clarify what has been affirmatively stated. The exclusion here does add the “customarily” produced phrase which is of some significance in construing phrase (i) to clarify it, and also to exclude industrial articles. The court in Consumer Product Safety Commission v. Anaconda Co., 593 F.2d 1314 (D.C.Cir.), considered this exception clause, (a)(l)(A), and gave emphasis to the customarily produced language. The court there said, at 1322:
“Jurisdiction does not require a showing that a majority of product sales are to consumers, but there must be a significant marketing of the product as a distinct article of commerce for sale to consumers or for the use of consumers before the product may be considered as ‘customarily’ produced or distributed in that manner.”
The “customarily” language in the exception is important and would not permit the inclusion of an article customarily sold to an industrial or commercial enterprise which had the exclusive control and possession of the article in its use. In Anaconda, the court was considering wire used for household wiring. The court held that “consumer products” are those “customarily sold or otherwise distributed to consumers,” and required more than an occasional sale. The court remanded the case for a determination whether wiring systems are bought separately by consumers. This factor was considered to be of basic importance. Some of the essential portions of the legislative history of the Act are described in the Anaconda opinion, and need not be repeated here. The separately sold to consumers aspect of Anaconda we also consider to be a factor to be considered here.
The definition in 15 U.S.C. § 2052(a)(1), of course, directs the search to articles for consumers’ use. This “use” reference is central to the whole Act, and it contains an implication that for the article to be used, and when used, it must ordinarily be under the control and direction of the user. The control and possession must be factors of some weight to be used in reaching a decision as to whether an article is a consumer product. The trial court in its decision that the Skyride was a consumer product placed reliance on Consumer Product Safety Commission v. Chance Mfg. Co., 441 F.Supp. 228 (D.D.C.), which also concerned an amusement park ride. The court in Chance held that use “in recreation” was a category separate from “household” use, and that the exposure to danger was an important factor to Congress. The trial court in the case before us determined that the ride was used for amusement purposes, thus in “recreation.” The trial court also relied on State Fair of Texas v. Consumer Products Safety Commission, 481 F.Supp. 1070 (N.D.Tex.), hereinafter discussed. The Texas District Court in State Fair of Texas (now on appeal) held that an aerial tramway was a consumer product. The court reached this
In Walt Disney Productions v. Consumer Product Safety Commission, No. 79-0170-LEW (Px) (C.D.Cal.) (now on appeal), the trial court held that a Skyride was not a consumer product. The court relied on 15 U.S.C. §§ 2066(b) and 2076(f) providing that free samples of the products be provided the Commission and that the Commission could purchase the product at cost. The court concluded that this could not possibly apply to the Skyride and the article was not within the Act.
In cases dealing with articles other than rides, the court in Kaiser Aluminum & Chemical Corp. v. Consumer Product Safety Commission, 574 F.2d 178 (3rd Cir.), considered aluminum wiring and held it was a consumer product, as it is an article produced or distributed for the personal use or enjoyment of consumers. In Southland Mower v. Consumer Product Safety Commission, 619 F.2d 499 (5th Cir.), the court held that lawn mowers are governed by GPSC safety standards if they are customarily produced or distributed for sale to, or use or consumption by, or enjoyment of a consumer. We would agree that a lawn mower is for the “use” of consumers, but whether “enjoyment” is an appropriate term would seem to require some further consideration.
The extent to which an individual might be exposed to an article or its dangers as a test suggested in some opinions would not seem to provide a test implied in the statutory definition. It appears also that such an extent test would not be usefully exclusive.
When we look at the several significant indicators in the wording of the Act, and thus to consider:
1. the contents of clause (i) separately from clause (ii), and not regarding (ii) as an expansion of (i),
2. weight to be given to the use “where” and the use “purpose” distinction,
3. the “customarily” produced as a narrowing factor derived from the exclusion (A) with the separately sold element,
4. the control-possession by use with the listed items excepted,
we must conclude that the Skyride here concerned was not a “consumer product” as defined in the Act.
The judgment of the trial court is set aside, and the case is remanded for entry of judgment on plaintiff’s motion for summary judgment.