By Annys Shin
Washington Post Staff Writer
Saturday, October 27, 2007

In June, the Consumer Product Safety Commission issued an unusual warning about a four-wheel all-terrain vehicle designed for children, calling it "defective and dangerous."

"Children are at risk of injury or death due to multiple safety defects with this off-road vehicle," the agency said in a news release.

That vehicle, the Kazuma Meerkat 50, was not recalled, however, which prompted consumer advocates to raise the question: If it was so dangerous, why did the CPSC allow it to remain on the market?

The reason was simple but revealing. At the time, the CPSC did not have enough commissioners to approve a lawsuit to force a recall. Consumer Reports called the warning "a non-recall" and "a dangerous precedent for a hamstrung agency."

"The problem with [a warning] is that it doesn't get that much attention," said Pamela Gilbert, former CPSC executive director. "No one is going to put you on the 'Today' show. It's a very weak remedy."

The story of what led to that warning and what has happened since illustrates how difficult it can be to get a dangerous product off the market and the constraints the CPSC faces when dealing with companies that do not cooperate.

Some of those limitations are written into law. Some are the result of the commission's reluctance to aggressively use the tools it has. ATVs in particular have proved difficult for the CPSC to regulate. About 22 million people ride ATVs in the United States. More than 700 die in ATV accidents each year, 25 percent of whom are younger than 16. Most of the ATVs involved are made domestically by companies such as Honda, Polaris and Yamaha. Consumer advocates blame the injuries and deaths on weak voluntary standards.

In the late 1990s, CPSC officials thought they could develop engineering solutions to make ATVs safer and adopt regulations to make the changes mandatory. The agency never moved forward, however, because it calculated that it did not have the money or the staff to do so and would not have been able to fight the industry in court over new standards, Gilbert said.

More recently, consumer groups sought to ban children younger than 16 from riding ATVs, a ban that the ATV industry said could not be enforced. The number of children hospitalized because of ATV accidents rose 67 percent from 2000 to 2004, said Jim Helmkamp, an injury researcher at West Virginia University. In 2006, the CPSC rejected the proposed ban, saying it could not be enforced.

Even as the ATV industry was fighting that ban, it faced a new threat: a rising tide of cheaper direct imports from China and Taiwan, which more-established ATV makers said did not meet safety standards. Fearful that the cheaper imports would undermine public perception of ATV safety, the Specialty Vehicle Institute of America, the trade group for the largest ATV manufacturers, hired two former CPSC experts on ATVs to examine the Kazuma Meerkat 50 and three other imported models made for young children and teenagers. The other imported ATVs were the Long Chang 110cc, the SunL SLA 90cc and the Baja Motorsports 90cc. While the importers of the four ATVs said they had no reports of injuries on their machines, the June 2006 SVIA study found that three of the four failed to meet voluntary safety standards to such an extent the ATVs should be recalled. One, marketed at children as young as 6, had no front brakes. Another was too powerful for its intended riders, teens. And two vehicles could be started in gear.

The CPSC obtained the SVIA test results in December but struggled to follow through on the findings. The agency began contacting importers of the four ATVs soon after, the companies said. Stateside Motorsports agreed to order a recall, which took place in May. The issues related to the other three remain unresolved.

The ATV imported by Baja Motorsports of Tempe, Ariz., had less serious problems. Baja made changes to the model and is in talks with CPSC over whether a recall is necessary, said Baja spokesman Paul Gift.

But Jeff Boudreaux, general manager for SunL, said in an interview this month that the SVIA was wrong in finding that his company's ATV was dangerous. Though the report said it lacked brakes and other features, he said that the vehicle met voluntary standards and that the one tested may not have been assembled properly. Boudreaux also said he would recall the ATV if the agency could prove to him that it failed to meet safety standards. He said he asked a year ago to examine the ATV the CPSC tested and hasn't heard back from the agency.

CPSC spokesman Scott Wolfson declined to discuss in detail the cases of the four imported ATVs citing pending administrative and legal matters. "We are considering our legal options at this time," he said, "and we certainly are paying very close attention to the safety of youth riders on ATVs."

Jason Tsai, president of the Meerkat 50 importer, Kazuma Pacific of Stafford, Tex., said that after the CPSC first told him of problems with the Chinese-made vehicle in December, he ordered changes to the vehicle, which was made for children as young as 6. According to the report commissioned by SVIA, the Meerkat lacked front brakes and adequate suspension, and reached top speeds that exceeded industry-accepted limits for young riders. The voluntary standard for an ATV's maximum speed for children 6 through 12 is 15 mph.

While the new Meerkats were being made in China, Tsai refused to order a recall or stop selling the ATV. He said he knew of no safety problems with the Meerkat after having sold more than 100,000 in the United States since 2000.

Tsai, in an e-mail to The Washington Post, said that because there have been no reported deaths or injuries related to the Meerkat, "how could it be a severe hazardous product?"

When confronted with a firm that does not want to cooperate, the CPSC faces constraints. Under the Consumer Product Safety Act, it cannot release information about products for 30 days without getting comment from the manufacturer. If the manufacturer does not like what the agency intends to disclose, then by law it can take the CPSC to court. In practice, that can translate into delays while every word of a recall news release is negotiated.

By law, businesses can also choose whether to repair or replace a product, or offer a refund, which can result in hazardous products sometimes remaining on the market. Most recently, dangerous cribs remained in homes and stores even after the deaths of three infants. The manufacturer, Simplicity, had three recalls in two years, and in each case, the company chose to offer repair kits or new instructions rather than replace the cribs.

If the agency believes a mandatory recall is in order, it can file an administrative lawsuit or ask the Justice Department to file suit. In the late 1990s, the CPSC used such suits to force recalls of defective heaters, sprinklers and toasters.

The agency could not take Kazuma to court this summer because it did not have enough commissioners to approve a suit. A seat on the three-seat commission has been vacant since Hal Stratton stepped down in July 2006. With two commissioners, there could be no quorum, unless a member is appointed by the president.

The CPSC could do little but issue the June press release warning Meerkat owners their ATV was too dangerous to use.

In August, Congress passed legislation that allowed two members to constitute a quorum for six months. But with its authority to sue restored, the agency has yet to use it, Tsai said.

That has led some consumer advocates to question the will of the politically appointed commissioners to use the enforcement powers they have. The CPSC has not filed an administrative lawsuit to force a recall since Ann Brown, a Clinton appointee, stepped down as chairman in 2001.

"Given the weakness of the agency, for them not to use some of the stronger tools they have is incredibly problematic," said Rachel Weintraub of the Consumer Federation of America. "As consumers what we need is for the regulated industry to know that there's a cop on the beat."

Going to court to force a recall has its costs too, the CPSC's Wolfson said.

"What the agency is concerned about is taking a legal action in a situation where there hasn't been a recall and a child dies while we're in court," he said.

Tsai said he agreed to a recall in September but in an e-mail last week, he appeared to have changed his mind. "I will never agree to do the recall," he said, because agreeing "means I agree with CPSC's [accusation] that Meerkat 50 is a severe hazardous product."