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|Political scientist Aaron Wildavsky has written: "Because regulation is
anticipatory, regulators frequently guess wrong about which things are dangerous;
therefore, they compensate by blanket prohibitions."(123)
He neglects to mention that regulators often analyze risk in terms of their authority and
preferences for dealing with it.(124) Thus, the CPSC did not
carefully analyze all the risks of bicycling, but rather focused on product-related risks.
It attempted to compensate for its narrow focus by regulating every conceivable
product-related hazard, regardless of likely significance. The result is a safety standard
that at best has no positive measurable effect on safety and may itself constitute a
Congress deserves much of the blame for the CPSC's myopia. It could have created a broad-based safety agency rather than one focused on promulgating safety standards (and ordering recalls) as the only means of regulating product-related risks. Congress recently has modified CPSC authority to require it to use a more informational approach and rely on industry standards where they are effective.(126)
Consistent with this new approach, the CPSC and other government agencies could play a significant role in improving bicycle safety in four ways. First, merely providing information can help. The CPSC and NHTSA both collect data on injuries and fatalities that enable others to study specific problems and judge whether progress is being made.(127) The NHTSA funded a study of bicycle-motor vehicle accidents that was published in 1977. It recommends specific strategies for reducing injuries and is still the best U.S. study available today on that topic.(128)
Second, the government in publicizing safety problems often allows the market to work toward improving safety.(129) The CPSC could have conducted informational studies designed to expose various problems, and done more to encourage safe riding and safety equipment usage.(130) As noted above, the FINAL REPORT of the Commission of Product Safety condemned high rise bicycles, led the industry to eliminate many of the criticized hazards and to develop its voluntary standard that served as the basis for the CPSC standard.(131) Similarly, in the mid-1970's, the CPSC spent $21,000 for a study of children's tricycles. The study found room for numerous safety improvements including lowering the tricycles' center of gravity, widening the rear wheels and limiting the turning radius. The CPSC refused to take any action such as proposing a safety standard based on the study.(132) Soon after the report was produced, a second generation of tricycles appeared, often constructed of plastic, which incorporate many of these design proposals. The CPSC has just announced that it will study the adequacy of bicycle helmet industry safety standards and testing procedures.(133) If deficiencies are found, the industry might very well adopt any changes recommended by the CPSC.
Third, the government can play an important role in educating bicycle operators on how to avoid accidents and on the benefits of safety equipment.(134) For example just educating riders not to ride into a street without looking for other traffic first could reduce fatalities by 15% and nonfatal motor vehicle accidents by a comparable amount. Similarly, eliminating riding on the wrong side of the street would reduce fatalities by 8% and nonfatal injuries by over 20%.(135) As noted above, the CPSC has missed some opportunities to issue effective educational materials.(136) Moreover, the safety standard requires that consumer information on bicycle maintenance be provided with the bicycle, but does not require information on the benefits of safety equipment or rules for safe operation.
Of course, the CPSC does not have the budget to conduct an intensive nationwide education campaign. Perhaps such campaigns are best conducted at the local level as illustrated by helmet-usage campaigns successfully conducted by a number of communities.(137) A sixteen month community campaign directed at children increased helmet use in Seattle, Washington from 5.5% to 15.7% of observed riders. The late Bette Coan of Palo Alto, California developed three bicycle safety programs for children and had remarkable success in convincing children to wear helmets. She sold them more than 25,000 helmets.(138) Similarly, a promotion and coupon campaign in Missoula, Montana targeting helmets for school children sold 249 helmets in the first three and one-half weeks.(139) Two parents in Olympia, Washington purchased 60 helmets for grade school children and reportedly helmet wearing became commonplace shortly thereafter.(140)
While the programs described above were largely developed from the efforts of private individuals, other programs have had the involvement of local government. Children and adults in Victoria, Australia increased helmet usage after an extensive promotional program. Primary school children increased usage rates from 4.6% in 1983 to 36.6% in 1985; secondary school children increased rates from 1.6% in 1983 to 14% in 1985 and adults increased their usage rates from 26.1% in 1983 to 42% in 1985.(141)
Last, a coalition of local government and various local organizations in Madison, Wisconsin conducted a one month helmet usage campaign. About half of all bicyclists there became aware of the message. Of the 50,000 bicyclists who were exposed to the campaign, about 5,000 were prompted to wear helmets, increasing observed usage rates from 15% to 19.2%.(142) The CPSC missed an opportunity to encourage helmet use and light usage at night by not requiring conspicuous notices of the value of such devices somewhere in its standard.(143)
Finally, the government, but not the CPSC, in its role as adjudicator, also helps reduce product-related injuries through the trial of liability lawsuits.(144) Because the number of reported bicycle lawsuits appears relatively small, they have been mentioned here only in passing.(145) However, even without rigorous analysis of the safety effects of product liability suits, it is appropriate to mention briefly their interaction with regulatory and market efforts to improve safety. While some champion the common law as efficient,(146) others condemn products liability law as too overreaching.(147) This study suggests that bicycle product liability suits are efficient.
First, the threat of such suits (and potentially large liability awards) encourages manufacturers to reduce safety risks inherent in product designs, to warn of those that cannot be addressed through design changes, and to instruct users of other ways to avoid them if possible. Thus, such suits may substitute for or complement safety standards.
Second, recent amendments to the CPSA require firms that lose or settle three or more suits involving a particular product model to report this to the CPSC. While the information is kept confidential, it assists in setting priorities and conducting investigations.(148) Had this been done earlier, the low number of bicycle product liability lawsuits should have suggested to the CPSC that there was little need for safety standards.(149)
Last, such suits may require consumers to take measures to ameliorate their own injuries. A recent North Dakota Supreme Court case ordered a new trial to include evidence on how the plaintiff's failure to use a motorcycle helmet may have forseeably increased his injuries. On remand, it could well be the case that the plaintiff may recover only for those injuries that would have been suffered had he in fact been wearing a helmet.(150) While this decision appears to be in the minority and has not been applied to bicyclists yet, it may nonetheless represent a trend that may have a favorable impact of bicycle safety in the future.(151) This aspect of private litigation furthers market efforts to improve safety by encouraging the purchase (and use) of helmets.
The CPSC may be able to avoid burdensome regulations if its efforts complement civil litigation. For example, it can test alternative warnings and instructions for effectiveness and propose the best for use. Such studies are likely to be very useful in determining liability in particular lawsuits.
Although this paper has focused on bicycles, it offers suggestions for improving safety generally. It supports arguments that a poorly conceived safety standard may be ineffective or, worse, do more harm than good -- while appearing to address the problem. As Viscusi suggests,(152) government efforts to assist market forces are likely to be more useful. The capacity of the government to conduct studies and publicize the results appears to be underutilized and offers a cost effective way to reduce risks of product injury.
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