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It is quite possible you may never be able to make fireworks again
in the US. Read this to find out what you can do to help

A serious situation, which has been developing over the past year, has now
reached a stage where action by and a specific response from our
community of hobbyist pyros is necessary. In our considered opinion, this
Consumer Products Safety Commission (CPSC) initiative constitutes the single greatest threat to amateur pyrotechnic manufacture in the United States that we have ever faced. It is an action that could well, for all practical purposes, end hobbyist pyrotechnics, as we currently know it. . 

Even if you are not a fireworks maker, but are a buyer of sparklers or
consumer fireworks, I urge you to read this as well. You too should be
vitally concerned. It is not at all inconceivable that even­tually our
ability to buy and use consumer fireworks in this country may come to a
screeching halt. Even your ability to shoot a simple backyard show on July
4th could be seriously reduced by the CPSC's proposed limits on the sale of
any fuse to you to 25 feet per year. 

What this article is about is a litigation being brought by the US Consumer
Products Safety Commission against a competitor of ours, Firefox. It
constitutes the most serious threat to amateur fireworks making and using
that I believe this country has ever faced. This legal action, if won by
the government, could quite easily result in these consequences: 

- Pyrotechnic chemicals and supplies vendors would disappear
- Your ability to make fireworks would grind to a halt once your supplies run out
- The Pyrotechnic Guild International would either disappear or be reduced
to a place to shoot consumer fireworks once a year
- The regional US fireworks clubs would disappear
- Amateur rocketry manufacture would probably disappear
- Various booksellers, newsletter publishers, and other pyrotechnic related
vendors would fold 

I am not exaggerating this problem. If you know me, you know that I am not
given to sensationalism or hyperbole in these sorts of situations. 

If these consequences concern you, I urge you to read this newsletter right
now. Time is of the essence. 

The facts 

On Monday, 29 November 2004, the United States CPSC served Gary and Diane Purrington of Firefox, an Idaho based supplier of pyrotechnic chemicals and supplies to the hobbyist community, with a Complaint for Injunction, the
terms of which demand certain constraints on Firefox's sales of pyrotechnic
chemicals. The details are below, but in summary, it forbids or very
severely limits sale of all common oxidizers and many common pyrotechnic
fuels to anyone who does not hold a manufacturing license from the Bureau of
Alcohol, Tobacco, Firearms and Explosives (BATFE). 

What does all this mean to you? 

This is clearly a disaster for Firefox, but even more importantly, you may
be one of the legion of non-federally-licensed hobbyist pyros out there
legally manufacturing fireworks of various types who will be severely
affected if the CPSC is successful. 

What is being done? 

This must be stopped now. This is not about Firefox; it is about the
survival of our hobby. But Firefox is the proverbial canary in the
coalmine. If they fall, the likely path from there is all too clear. A
legal team, John Brooke and Doug Mawhorr of Muncie, Indiana (specialists in
fireworks law and regulation), has been assembled, and they have been asked
by the Purringtons at Firefox to notify the CPSC that the case will proceed
to litigation. Doug Mawhorr has provided an initial review and opinion of
the legal ramifications of this case, which is printed below. 

What is needed now is money to support their defense and perhaps ultimately
the defense of our other vendors. No matter what happens from here on out,
the one incontestably useful thing we can do now is to accumulate as large a
war chest as possible. Whether the case proceeds to litigation, which seems
very likely, or settles, competent legal representation and hired expert
help are both indispensable and expensive. It remains remotely possible
that the accumulation of a truly huge war chest (like multiple six figures)
on our part could help prompt the CPSC to negotiate a settlement. If this
case does proceed to litigation, the legal fees will skyrocket. Summary:
Building the war chest is the most constructive thing we can do right now
and it will be needed in almost any conceivable scenario. 

We ask your help in this. We know the less-than-encouraging financial
situation that many find themselves in right now, but considering the
stakes, I encourage your consideration of a considerable contribution to the
Fireworks Foundation/Chemical Defense Fund. In addition I would appreciate
your help in raising funds in any other way you can devise. 

Checks should be payable to "The Fireworks Foundation" and m­ailed to: 

Mike Swisher, Treasurer-Fireworks Foundation, 14511 Olinda B­lvd., N.
Stillwater, Minnesota 55082 

As an alternative, the Fireworks Foundation web site at
http://www.fireworksfoundation.org has provisions for making donations
online using your credit card, electronic checks, and PayPal­.

Thank you for listening and considering.

Details of CPSC Injunction against Firefox

The CPSC Injunction against Firefox would require them to:

"Not sell, give away, or otherwise distribute any chlorate compound,
magnesium metal, permanganate compound, peroxide compound, zirconium metal or any chemical listed at 16 C.F.R. § 1507.2 to any recipient who does not possess a valid manufacturing license for explosives issued by the ATF; 

Not sell, give away or otherwise distribute any of the following chemicals
for which the particle size is finer than 100 mesh (or particles less than
150 microns in size) to any recipient who does not possess a valid
manufacturing license for explosives issued by the ATF: aluminum and
aluminum alloys, magnalium metal, magnesium/aluminum alloys, titanium and
titanium alloys, or zinc metal; 

Not sell, give away or otherwise distribute any of the follo­wing chemicals
in an amount greater than one pound per year per recipient to any recipient
who does not possess a valid manufacturing license for explosives issued by
the ATF: antimony and antimony compounds, benzoate compounds, nitrate
compounds, perchlorate compounds, salicylate compounds or sulfur; 

Not sell, give away or otherwise distribute any fuse in an a­mount greater
than 25 feet per year per recipient who does not possess a valid
manufacturing license for explosives issued by the ATF." 

In addition, the injunction requires extensive record keeping (photocopies
of drivers licenses and, if applicable, ATF licenses for all recipients, as
well as detailed invoices maintained for at least seven years) and requires
Firefox's agreement to provide those records to CPSC at any time on demand. 

Legal Environment Surrounding the Injunction against Firefox­ By Doug Mawhorr 

By now I will assume that most pyros have heard about the Consumer Product
Safety Commission's ("CPSC") civil lawsuit against Firefox E­nterprises, Inc.
I want to address a few legal aspects of this matter to answer the many
questions I have fielded and many of the readers probably have themselves.

For those of you who do not know, there is a difference between the BATFE
and the CPSC. Firefox is not regulated by the BATFE. The basis is
explained here. First, BATFE regulations and the Explosives Control Act
deal only with the commerce and storage of explosives. The definition of an
explosive includes anything on the Explosives list published by the BATFE.
Nothing that Firefox sells is found on the Explosives List, absolutely
nothing. 

Second, nothing Firefox sells meets the definition of an explosive. For an
item to meet the definition of an explosive, it MUST be either: 1) a
chemical compound, 2) a chemical mixture or 3) a device of which the primary
or common purpose is to function by explosion (or to explode). Firefox
merely sells individual chemicals that can be combined to make an explosive.
But the items Firefox sells are not explosives, explosive materials or found
on the explosives list.

Therefore, because Firefox is not in the business of distributing explosives
or explosive materials, the BATFE does not regulate Firefox.­ Firefox does
not need a BATFE permit or license to operate its business.

The CPSC was created by Congress to reduce or eliminate injuries to
consumers caused by dangerous/hazardous products. Now with that said, how
does the CPSC feel they can regulate Firefox? That answer is found in three
sources. The first source is the Federal Hazardous Substance Act (FHSA).
The FHSA is found at 15 U.S.C. 1261 et seq. The second source is the
Consumer Product Safety Act (CPS Act). The CPS Act can be found at 15
U.S.C. 2051 et seq. The third source is the regulations of the CPSC. The
specific regulations (as the CPSC has thousands) are found a­t 16 C.F.R.
1500 and 1507. The CPSC claims its ability to regulate Firefox derives from
these statutes and regulations.

I will not take the time and length to provide the CPSC view of their
authority and my critique. But there are, in my view and opinion, serious
flaws in the CPSC logic and interpretation of the FHSA and its regulations.
Unfortunately, our system of laws is set up so that an agen­y's own
interpretation of its regulations is valid unless you show it to be
otherwise. You do that by convincing a court that the agency's
interpretation is arbitrary, capricious or without authority.

Here is my interpretation of the CPSC authority and basis for regulating
pyrotechnic chemicals. First, the CPS Act and FHSA provide ­the CPSC the
authority to regulate certain hazardous products that are a danger to
consumers. Second, the FHSA defines a banned hazardous substance. Third,
FHSA allows the CPSC to declare other hazardous substances to be banned
hazardous substances. Fourth, the FHSA and Regulations instruct that
certain consumer fireworks are exempt from the regulations. Fifth,
Regulations of the CPSC (Regs) declare certain non-consumer fireworks
("Illegal Fireworks") to be banned hazardous substances. Sixth, the Regs
also declare the components and kits known or intended to produce Illegal
Fireworks to be banned hazardous substances. As I interpret the federal
statutes (CPS Act and FHSA) and the Regs, the CPSC is trying to enforce the
statutes and Regs where they have no authority to so act. The CPSC is
attempting to regulate where no authority to regulate exists. Finally,  the CPS Act, FHSA and the Regs allow for the legal manufacturebsp possession and use of fireworks (even those made with a metal powder fuel and strong oxidizer) as long as certain limitations of composition amounts are followed.

You can review the FHSA and the CPSC regulations I have cited and draw your
own conclusions as to what the CPSC can and cannot do. As for supporting
the "cause" of Firefox, this is not just about Firefox. Whether you want to
believe it or not, this is about the hobbyist pyrotechnic industry. The
hobbyist pyrotechnic industry includes: fireworks, rocketry (firework and
experimental), chemistry, black powder users (cannoneers, and self loaders
that make their own), and anyone else who cannot buy direct from the
chemical manufacturers. The CPSC has targeted chemical suppliers for years.
I have personally spoken to CPSC personnel and they have told me such. They
will call chemical vendors to try to order and purchase "kits" and they have
done so. Finally, as you look at the Regs, they allow for the manufacture
of items that contain aluminum and perchlorate as long as they are not
larger than either 50 mg or 130 mg. So for the CPSC to attempt to ban the
components of any and all fireworks, when it is not illegal to have smaller versions, is arbitrary, capricious and not supported by fact or law.

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Dear Pyro Hobbyists:

This is Danny Clark, past President of the Crackerjacks. On behalf of the
Fireworks Foundation and the pyro community, I desperately need to ask for
your help on a serious situation that directly affects the pyro hobby.

Firefox was served a summons to sign a decent decree that effectively says
that they must stop selling most oxidizers and fine mesh metals to non-ATF
permit holders. If they fail to sign, they have been ordered to appear in
court. ATF rules do not forbid hobbyist manufacture in states where it is
not prohibited. ATF rules do not forbid sales of these chemicals.

If the CPSC is successful, Firefox, Skylighter and the other chemical
suppliers will be out of business. Hobbyist manufacture of fireworks will
be gone. This is a VERY serious situation.

The Fireworks Foundation has formed a legal team to analyze and defend the
situation. This defense team needs funding. They may also need support in
the form of letters.

I am asking each pyro hobbyist to make a donation of whatever amount you
can afford. If you can give even a $1, it is appreciated.

In a few days there will be a website for news regarding this situation.
It will also list all of those companies, clubs, and people that have made
pledges/donations above $1000. Therefore, please send me an email when you make a pledge. Send actual payments to:

Mike Swisher
Treasurer-Fireworks Foundation
14511 Olinda Blvd. N
Stillwater, Minnesota 55082

Make checks payable to THE FIREWORKS FOUNDATION

Note on each check whether the contribution is designated for the "Chemical
Defense Fund" or "General Foundation Use"

Below are the unedited details as they have been presented by Gary and Diane of FireFox.

Danny Clark

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Begin message to John Steinberg from Firefox:

John,

The time has come to start the fund raisers, and we appreciate your
willingness to help us. We were hoping that we would not have to write this letter, but unfortunately all of our attempts to negotiate with the CPSC have failed. On Monday last we were served with a Summons to either sign the Consent Decree that was attached or appear in court. After reading through the new proposed Consent Decree, we have come to the conclusion that to sign it we would in fact be putting an end to our business, as we could not survive with such a devastating blow in sales by eliminating these items from sales as stated in
this Decree.  This is a brief summary of their decree; 

No sales whatsoever on the following items unless the customer has an ATFE manufacturing permit; any Chlorate compound, Magnesium Metal (all), Permanganate compound, Peroxide compound, Zirconium Metal, or any listed in 16 C.F.R. 1507.2.

No sales on the following to anyone that does not posses a ATFE Manufacturing Permit, the following partial size in less than 100 mesh, Aluminum and Aluminum Alloys (all of them), Magnesium Aluminum Alloys, Titanium Alloys or Zinc Metal. 

No sales on the following items to anyone that does not posses a
ATFE Manufacturing Permit in quantities greater than 1 LB per year,
Antimony and Antimony Compounds, Benzoate Compounds, Nitrate Compounds, Perchlorate Compounds, Salicylate Compounds or Sulfur. 

No sales on any Fuse greater than 25' per year per customer who does not posses a ATFE Manufacturing License.

As you can see this covers virtually ALL OXIDIZERS and most of the
commonly used fuels. This will effectively put us and all other suppliers
out of business and with us, the clubs.
The ATF tells us that hobby fireworks for your own use and not for resale
is legal without permits in most cases (you still need an ATFE to purchase time fuse if you are making shells and black powder). However, you do have to store the completed devices properly according to their specs (magazine) but if you do not have an ATFE you do not need to register the magazine with ATF. You just need one constructed according to their specs should they have reason to visit you and you do need to keep magazine records. The CPSC does not care about this. It looks to us like they are
trying to get these chemicals listed on the FHSA (fed hazardous substance
act). If they do, these items are GONE!
As you know we have been willing to do our part in controlling those that
wish to make illegal devises, as they are the ones that make it hard for all
of us that strive to follow the regulations and keep this hobby alive.
We do not sell "combination orders" for flash without an ATFE but the CPSC has broadened their language as to what is a combination order. They now state that anyone who orders the materials that can be used to make salutes, even separately and/or over any period of time and even if not all of the
materials it takes to make them was ordered, again even over any period of
time would be in violation of the FHSA. One example is an order for
potassium chlorate or perchlorate and paper tubes! Another would be an order
for 250 ft of fuse, etc. etc..
We both wish that we could fight this alone without asking for any help, but
unfortunately we do not have enough finances to do that, so we are turning
to you and humbly asking you to help us with this. It does not matter who
you purchase your materials from. If we loose this battle all the other
suppliers will fall as well and they know it. It is time to rally all the
support we can to get through this. Please help us and your hobby by
addressing as many supporters as you can to come to our aid.
We have been in contact with our attorney (Doug Mawhorr) and he is very
positive that we will have a good chance of this going our way with some
restrictions of course.
Gary and I both would be devastated to see this hobby come to a halt, so no
matter how much it takes mentally and physically we will do this so that
hopefully years from now we are able to enjoy this hobby with our
grandchildren as we do today.
So, it is time to start the fund raisers, rally the troops and even some
letters can help. We need to educate the court on what these materials are
used for legally and that they are not just used or intended for illegal
production and/or sale. Any comments or letters we can present the court
would help. I believe the key to this is education.
We appreciate all your continued support,

Gary and Diane