The Consumer Product Safety Commission ("CPSC") will develop and propose mandatory regulations for the lithium-ion batteries used in micromobility devices, including e-bikes and e-scooters.[1] Commissioner Mary T. Boyle made the announcement at the PeopleForBikes’ SHIFT’23 Conference on October 17, 2023.[2] Boyle stated that CPSC would consider “regulations for micromobility devices across the board,” but cautioned that the process is “going to take a while.”[3] A final rule, if it is enacted, would likely be adopted in 2025.[4]
The announcement comes after a year of CPSC activity on micromobility safety. In December 2022, the CPSC sent a letter to over 2,000 manufacturers and importers of e-bikes urging them to fully comply with applicable voluntary safety standards.[5] And at a public hearing in July, it hinted at greater efforts to produce mandatory rules based on existing industry standards, as Covington previously highlighted.[6]
The day before Commissioner Boyle made the announcement, CPSC staff released a report titled “Micromobility Products-Related Deaths, Injuries, and Hazard Patterns: 2017-2022.”[7] In a press release covering the report, CPSC stated that the new data showed an increase in “injuries associated with all micromobility devices” between 2017 and 2022, and specifically noted a “serious risk of dangerous fires with these products” as a result of their lithium-ion batteries.[8]
The report urged consumers to ensure their micromobility products comply with the two principal voluntary safety standards currently in place.[9] The first is ANSI/CAN/UL 2272, dated February 26, 2019, which “details requirements related to the construction of e-Mobility devices, and prescribes electrical, mechanical and environmental testing to assess electrical safety.”[10] The second is ANSI/CAN/UL 2849, dated June 17, 2022, which “offers electrical and fire safety certification by examining e-bikes’ electrical drive train system, battery system and charger system combinations.”[11] Boyle commented that if “the industry comes into compliance with voluntary standards that are in place now, that will be a really helpful part of the process.”[12] But the Commission’s decision to consider a mandatory rule is significant and reflects a judgment that existing voluntary standards are inadequate on their own.
To adopt a mandatory rule, the CPSC must perform a cost benefit analysis and “make a host of findings,”[13] including that (1) “the rule is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with [the] product”; (2) existing voluntary standards are not likely to eliminate or reduce the risk of injury, or it is “unlikely that there will be substantial compliance” with the voluntary standard; (3) the rule’s benefits “bear a reasonable relationship to its costs”; and (4) the rule “imposes the least burdensome requirement” to prevent or reduce the risk of injury.[14] Boyle stated that she hopes to have “a final ruling some time in 2025” but recognized that “it is a long process.”[15]
The CPSC has also been using its other powers to address micromobility risks. A week after Commissioner Boyle made the announcement that the Commission would pursue mandatory standards, the CPSC issued a press release instructing consumers to stop using a certain manufacturer’s electric scooters because of a fire hazard, noting that the product was associated with two deaths in an apartment fire in New York City.[16] These “unilateral” press releases are deployed to increase pressure on a company to conduct a recall when negotiations between the CPSC and the company break down. CPSC has used this tactic much more frequently in recent years, even outside of micromobility products.[17]
Manufacturers, distributors, and retailers of micromobility products, and particularly those that use lithium-ion batteries, should closely monitor the rulemaking process and consider submitting comments and providing feedback to the agency. During the Shift’23 Conference, PeopleForBikes announced that it was creating a Technical Standards Working Group to “bring together experts from across mechanical, electrical, and legal departments within the bike industry to craft updated standards that blend with international requirements and ensure that products sold in the U.S. are high quality and safe for consumers.”[18] The working group will be another opportunity for those in the industry to weigh in on safety standards as this area continues to evolve.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Product Safety practice.
[13] Finnbin LLC v. CPSC, 45 F.4th 127, 131 (D.C. Cir. 2022).
[14] 15 U.S.C. § 2058(f)(3)(A), (D), (E), (F).
[17] Between 2010 and 2019, the CPSC issued only two unilateral press releases. GAO-21-56: Consumer Product Safety Commission: Actions Needed to Improve Processes for Addressing Product Defect Cases, Government Accountability Office (Nov. 19, 2020), https://www.gao.gov/products/gao-21-56. It issued four in the next year alone. Id.
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