On Not Regulating Thrill Rides

Elizabeth Williamson of the Washington Post has written powerful article on the failure of the regulatory system to ensure that amusement park âthrillâ rides donât kill or injure customers, primarily teenagers and children. She provides grisly detail on a topic weâve talked about here before: the inability and/or unwillingness of the Consumer Product Safety Commission to protect the public.

After describing one series of identical accidents that occurred several times on the same ride, Williamson notes

The CPSC has no employee whose full-time job is to ensure the safety of such rides. The agency's 90 field investigators -- who oversee 15,000 products, work from their homes and live mostly on the East Coast -- are so overstretched that they frequently arrive at carnival accident scenes after rides have been dismantled.

As a result, critics say, supermarket shopping carts feature a more standardized child-restraint system than do amusement rides, which can travel as fast as 100 mph and, according to federal estimates, cause an average of four deaths and thousands of injuries every year.

State regulators and ride safety advocates say that this record is emblematic of wider problems at the CPSC, whose lagging efforts to keep unsafe toys and other children's products from the marketplace have created a public outcry and have brought intense congressional scrutiny. Rulemaking by the agency has decreased during the Bush administration, and its officials say that budget and staffing constraints have made the commission vulnerable to industry pressure to adopt voluntary standards, or, in the case of fixed-site amusement park rides, no federal regulation.

The CPSC may do an inadequate job on traveling amusement parks, but it has no regulatory authority at the permanent parks:

Although the CPSC regulates children's toys, strollers, bicycles and car seats, it has no jurisdiction over rides at fixed amusement parks, such as those run by Walt Disney Co., Six Flags, Universal and Anheuser-Busch Entertainment that host an estimated 300 million people on 1.84 billion rides annually.

Theme parks won their exemption in 1981, after a CPSC probe of ride accidents at Marriott theme parks alleged a coverup of safety hazards. Marriott, represented by Kenneth W. Starr, then a young Washington lawyer, and the industry fought back in the courts and on the Hill, where its top lobbyist complained about the "economic hardship" created by CPSC policing. More safety measures lessening risks would "make the ride worthless," lobbyist John Graff told Congress at the time. "The activities of the commission must be limited."

The exemption was included in an omnibus agriculture bill that year, leaving oversight of theme parks to disparate state programs, including some lacking inspectors or enforcement powers. Family activists and state regulators say that as a result, efforts to find and correct safety problems have been inhibited, the number and extent of ride injuries remains uncertain, and families have been prevented from assessing the risks posed by roller coasters and Ferris wheels, wave pools and spinning rides.

"It would be nice if the federal government could come down and say 'You should do this' . . . and we had some uniform enforcement," said Mark Mooney, the Massachusetts inspection chief and president of the Council for Amusement and Recreational Equipment Safety (CARES), a voluntary organization of state regulators.

Carolyn McLean, a spokeswoman for Six Flags Kentucky, where the Tower of Power ride is slated to be dismantled, said, however, that "our industry is extremely well-regulated at the state level." The ride was inspected daily by the company, Six Flags has said.

Kentucky's inspectors say that state law requires only that they check rides once a year -- about as often as they check supermarket egg displays. Douglas Rathbun, the state inspection chief, said he and his fellow inspectors "follow manufacturer specifications" because "they are the ride experts. You'll not see anyone in Kentucky say 'Add a seat belt' unless the manufacturer says 'Add a seat belt.' "

Hearings are scheduled this week on legislation proposed by Rep. Edward J. Markey (D-Mass.) to strengthen CPSC's oversight of traveling carnival rides and give the agency limited regulatory authority at fixed-site rides. Not surprisingly, the amusement industry has been successfully fighting increased federal regulation for quite some time. According to Williamson:

Markey first introduced legislation to reinstate federal authority over theme park rides eight years ago, after a string of ride accidents killed four people in a week in 1999. Since then, he has been able to secure only a single half-hour hearing on the issue. His bill this year, which would also add $500,000 to the CPSC budget to handle theme park rides, has 11 co-sponsors, and not one backer in the Senate.

"Every summer there is a flurry of interest as the accidents and injuries happen," Markey said in an interview. By autumn, "nobody decides that this is a big issue. . . . Very few industries have been able to build a loophole in federal law and hold it for as long as they have. They are a powerful lobbying force."

In 2001, the first full year after the sole hearing on Markey's bill, the International Association of Amusement Parks and Attractions nearly quadrupled its lobbying spending, to $430,000. It also retained Williams & Jensen, a lobbying firm close to the House Republican leadership, at a cost of more than $1.8 million since 2001.

Even Markey, a member of a telecommunications subcommittee, received a total of $23,000 in campaign contributions from Disney and Universal during the 2004 and 2006 election cycles.

Overall, the association has spent $5.4 million on lobbying since 2001. Disney, Universal and Anheuser-Busch -- operators of the nation's biggest theme parks -- have separately spent millions on lobbying to influence theme park safety regulation and other issues that concern them, according to reports compiled by Political Money Line.

Since Markey introduced his bill, theme parks and their lobbyists have also funded at least 18 trips to theme parks and resort areas for seven lawmakers, plus 46 top staff members, at a cost of more than $114,000. In 2001, for example, an aide to Rep. Cliff Stearns (R-Fla.) and 10 other congressional staffers visited Orlando for a three-day trip sponsored by the international association that included a seminar on safety issues, according to documents compiled by LegiStorm.

Stearns became the chairman that year of the House Energy and Commerce Committee's consumer protection subcommittee, and in the five years that he held the post, the congressman said, he kept Markey's bill from coming to a vote because he found the accident rate unremarkable. During this period, he collected $38,000 in campaign contributions from Disney, Universal, Anheuser-Busch and theme park lobbyists.

"They've had a few deaths and they've had a few accidents, but for the most part it's been pretty good," Stearns said in an interview. He said he agrees with the industry that lots of accident victims "are tired, and . . . in many cases don't follow directions."

At a House hearing on Nov. 15, Stearns also argued that what Markey called the "roller-coaster loophole" has worked fine, and that the consumer agency already had enough on its plate. He brought large charts conveying the industry's message that theme park accidents per capita are less frequent than those caused by leisure pursuits such as basketball, football, and other popular sports shared by adults as well as children.

That claim is hard to judge, because the CPSC stopped issuing reports of fixed-site ride injuries in 2005, when the official who compiled them resigned. Theme park lobbyists complained that the final estimate of 3,400 injuries in 2004 was double the parks' own count.

The subcommittee's new chairman, Rep. Bobby L. Rush (D-Ill.), said little during the exchange between Markey and Stearns. Rush has said that he is committed to overhauling and improving enforcement at the CPSC. "I told him I would look at it," he said in an interview about Markey's amendment. "I haven't been to an amusement park in years. It's not something I'm really conscious about."

But he added that he supports an amusement and hospitality industry plan to tap more than $200 million in federal funding for a program to bring more tourists to the United States. "Tourism is a very important agenda item for me," he said.

Robert W. Johnson, who helped lead the fight against federal jurisdiction 26 years ago and is now president of the Outdoor Amusement Business Association, whose 5,000 members include theme park and carnival operators, said: "You have to look at the risk-reward of these programs. . . . There may be people out there who want more regulation, but there has to be a return on that investment."

Amusement parks, he said, "need less taxes, less government oversight. But they need federal support" to bring in more visitors.

Bill Childs, over at TortProf Blog, has been an astute observer of the safety regulation-amusement park issue.  He is not impressed with the argument of the opponents of regulation:

Most of the criticisms of CPSC oversight tend to create some strawmen that are easy to knock down, largely focused on how the CPSC couldn't possibly go and inspect every ride and that states do a fine job of that already. Nobody (to my knowledge) suggests that the CPSC should be out inspecting rides every season; they're much more about being a clearinghouse of information and about figuring out what happened after an accident has occurred, ensuring that fixes get distributed everywhere.

As for the federalism argument, CPSC oversight would complement, not replace, what state oversight exists (which is, in some places, terrific, and in others, nonexistent). The bill simply removes the exception for fixed-site rides. State regulators already work along with federal regulators for portable rides, so I'm not sure where the notion that adding CPSC oversight to fixed-site rides would take away any state authority comes from. Of course, the CPSC could preempt state regulations in specific instances, but I'm aware of no times that's occurred with traveling rides or any reasons to believe it would happen with fixed-site rides.

On balance, I think CPSC oversight is a good idea -- though I think it should be accompanied by substantial increases in resources so that they can do the work appropriately. Markey's bill would fund the CPSC with $500,000 for the work. Maybe that's enough. (And I wouldn't mind some more resources for CPSC for its other responsibilities, either...)