Richmond, VA; October 18, 2023: Today, Jake’s Fireworks filed its opening brief in an appeal against the Consumer Product Safety Commission for illegally blocking the sale of its products.

The Consumer Product Safety Commission claims it has the power to regulate consumer fireworks based on the kind of sound they make — even though the commission has not found any risks to consumers. Worse, the commission uses an arbitrary “poof/bang” test that has no objective component whatsoever. If a commission employee thinks a firework sounds wrong, the agency can declare them illegal to sell.

That’s what happened to Jake’s Fireworks when the commission issued “Notices of Non-Compliance” and deemed its fireworks to be “banned hazardous products.” As a result, Jake’s finds itself whipsawed between equally damaging decisions: quarantine over $2 million worth of fireworks or sell them under the threat of significant criminal and civil penalties.

To make matters worse, the CPSC claims that Jake’s Fireworks isn’t allowed to challenge the commission’s decision in court because the commission’s Notices don’t constitute “final” agency action.

“The commission wants to have their cake and eat it too. They insist to the court that their decision isn’t final and thus can’t be legally challenged — but if Jake’s decided to go ahead and sell the products, the commission would surely prosecute them as though the decision were final,” said Oliver Dunford, an attorney at Pacific Legal Foundation. “This is exactly the sort of unlawful regulatory gamesmanship that the Supreme Court rejected in Sackett I and again in Hawkes. The courts should similarly rebuke the CPSC here.”

The case is Jake’s Fireworks, Inc. v. Consumer Product Safety Commission, filed in the Federal Court of Appeals for the Fourth Circuit.

Documents

Opening Brief
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Pacific Legal Foundation is a national nonprofit law firm that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 34 states plus Washington, D.C., PLF represents clients in state and federal courts, with 17 wins of 19 cases litigated at the U.S. Supreme Court.

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