ARE CLASS 3 E-BIKES A SUBSTANTIAL PRODUCT HAZARD?
By Steve Bina
Substantial Product Hazard. That sounds bad. It is.
You probably wouldn’t want anything classified as such in your place of business. So, how does something get labeled as a substantial product hazard? Do you understand what that means?
This term is defined in 16 CFR 1511.2 Commercial Practices, which is one of 50 titles comprising the United States Code of Federal Regulations (CFR), which contains the primary set of rules and regulations issued by federal agencies. The collected volume of regulations is over 1,000 pages, and definitions for many things are contained on those pages. So, what actually is a substantial product hazard? I’ll get back to that.
I’ve covered this before. 16 CFR 1512.2 defines what a bicycle is. This definition states, “…Bicycle means:
a two-wheeled vehicle having a rear drive wheel that is solely human-powered;
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 motor while ridden by an operator who weighs 170 pounds or less, is less than 20 mph.”
Notice the speed limit for an electric bicycle is 20 mph. This conforms neatly to what are known as Class 1 and Class 2 electric bicycles, both with pedals, one without a throttle, the other with. Nothing in the definitions of a bicycle, regular or electric, is anything written about a product that can go in excess of 20 mph.
The self-proclaimed bicycle industry trade association has been pushing three classes of electric bicycles. The first two are as described above. The third, known as Class 3, typically has pedals, does not have a throttle, and can achieve a speed not to exceed 28 mph while ridden the same way and by the same rider as told above.
As an aside, I’ve wondered how the 28-mph limit came to be for Class 3. That’s a 40 percent jump from what is defined and accepted by the Consumer Product Safety Commission (CPSC). Why not 22 mph, a 10 percent increase? Or 25 mph? Why stop at 28 mph? Why not a nice round 30 mph?
The dangers inherent in that increase in speed are significant. One of the recent inductees into the Light Electric Vehicle Association (LEVA) Hall of Fame, Mike Fritz, the first engineer hired by Lee Iacocca for his e-bike project, confirmed the micromobility product’s kinetic energy is more than double at 28 mph than what it would be at 20 mph. The kinetic energy at that speed significantly increases stopping distances and increases potential injuries to the rider or pedestrians.
So, why stop at 28 mph? And why did this bicycle industry trade association peg that for a third class? Could it be that members of that association were already producing products capable of 28 mph and needed a way to sell them, since CPSC did not recognize such products?
Regardless, the micromobility product known as Class 3 is not a bicycle as defined by CPSC. Because of this lack of definition, what is known as Class 3 is essentially a no-man’s land. The electric bicycle three-class system is a bicycle industry fiction, created by different industry associations in an attempt to bring stability to that no-man’s land. But it remains just that, a fiction.
The July issue of Bicycle Retailer and Industry News has an interview with the new CEO at Pedego and also a recent inductee into the LEVA Hall of Fame, Larry Pizzi. The formation of the three-class system, which came about in 2015 and 2016, was discussed in the interview. It was acknowledged that two industry groups devised the three-class system since what was then defined by the government covered only Class 1 and Class 2.
I have not had the pleasure of meeting Larry and wouldn’t presume to know exactly what he was thinking relative to answers he gave in the interview. What I do know of his reputation is that he is concise and careful with his public statements. Larry is quoted in the interview saying, “Out-of-class e-motos are at the top of my list, because they create safety and perception issues that can threaten compliant e-bikes. The public usually doesn’t distinguish between a small electric motorcycle and a Class 1 or Class 2 bike; they just see ’e-bike’.”
Was it an oversight by Larry that Class 3 bikes were not mentioned as compliant e-bikes, or was it intentional?
The aforementioned bicycle industry trade association’s push to have multiple jurisdictions legislate the three-class system has spread but is beginning to run into the legal realities of that no-man’s land and possible legal repercussions.
Recently, Amazon announced it would no longer sell electric bicycles with motors more powerful than 750 watts and/or capable of speeds in excess of 20 mph on its website in California. My first thought was that Amazon didn’t want to sell products capable of speeds above the CPSC electric bike definition. Then I remembered Amazon will now facilitate the sale of new cars, so the speed of the product was possibly not their primary concern.
Already, there are lawsuits in California (and other states) that seek damages because an undefined class 3 product was involved. Undoubtedly, the defense will claim the class 3 product was defined by and in a jurisdiction that acknowledges class 3 is an electric bicycle. That may work. But as this type of litigation becomes more common, plaintiff attorneys will become more focused on the lack of CPSC/federal definition, which may supersede any other jurisdiction definitions. In other words, even if a state has passed legislation codifying the three-class system, that doesn’t make a class 3 product legitimate. That isn’t solely my opinion.
Super 73 is one of the best-known and biggest electric bicycle manufacturers and distributors, putting products into the United States. Super 73 made and distributed both 20 mph products and 28 mph products. But no more. The Super 73 product line now only consists of bicycles that do not exceed 20 mph.
Why? Because the three-class system championed by the bicycle industry trade association classifies by use, it is not a legal classification recognized by the federal government. Super 73 is getting out of the way. Amazon will stop selling into jurisdictions that have pending litigation and are prone to have more. Plaintiff attorneys will be looking for those with deep pockets to sue. That won’t be the dealer. It won’t be the distributor. A big manufacturer or Amazon could end up with an award well into seven figures.
Any wonder why Super 73 stopped making products that can go faster than 20 mph or why Amazon stopped selling such products in select jurisdictions?
This brings me back to Substantial Product Hazard. 16 CFR Part 1115.2 defines this as; “A failure to comply with an applicable consumer product safety rule, which failure creates a substantial risk of injury to the public, or
A product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public;.”
This includes electric bicycles with a motor rating above 750 watts and/or capable of speeds in excess of 20 mph.
Given the possible legal exposures, would you want to have a product that is a Substantial Product Hazard in your place of business? Would your insurance company want you to have such a product on the premises?
And why would the bicycle trade association think that was a good idea?
Contact Steve Bina: steve@humanpoweredsolutions.com