Jesse Halfon is an attorney in the automotive and products liability practice in Ann Arbor, Michigan.
In April, Lyft, the owner of the largest bikeshare operator in the U.S., pulled its fleet of pedal-assist electric bikes off the streets in New York, San Francisco, and Washington, D.C. Users had reported excessive braking force on the front wheel, creating the risk of tossing them over the handlebars.
Lyft’s recall was widely reported, but under-emphasized was the fact that it was entirely voluntary and self-enforced: The Consumer Product Safety Commission (CPSC), the primary bicycle safety regulator in the U.S., was nowhere to be seen. The absence of coordination by any governmental agency on these types of corrective actions is worrisome, because as new mobility devices emerge, so will new safety risks. E-scooters, whose popularity has exploded in the last 18 months, may be particularly prone to injuring their riders in crashes.
The CPSC has broad powers to regulate retail consumer products. The same agency that regulates baby pacifiers, wallpaper steamers, fondue pots, and xylophones has the power to investigate accidents, monitor vehicle crashworthiness, develop safety standards, and issue recalls for bicycles and other transportation devices.
In the past few years, the CPSC has issued voluntary recalls for several mobility products, including a golf cart with defective brake cables, an adult tricycle with an over-active torque sensor, and a Segway that required a software update to deliver sufficient power under certain conditions. But it has become clear that the CPSC in its current form is ill-equipped to regulate the full spectrum of micromobility technology. Given the explosion of new devices primed to hit American pavement in the next few years, the government should recharge its consumer protection efforts in this burgeoning market and rededicate itself to overseeing micromobility safety.
The CPSC’s rocky path to regulation
Through one lens, “micromobility” has been around for many decades—the bicycle was the original smaller-than-a-car urban transportation innovation. Horace Dediu, an investment analyst and micromobility advocate, defines the term as utility-focused urban transport vehicles, most of which are electrically powered and weigh under 500 kg. Such battery-boosted mini-vehicles form a natural symmetry with other wheeled devices that the CPSC currently regulates, ranging from small electric skateboards up to multi-passenger off-road utility vehicles.
Today, in its most popular form, micromobility encompasses shared fleets of small vehicles like bikes, e-bikes, and e-scooters. Their popularity is booming: In 2018, 84 million trips were taken on shared bikes and scooters in the U.S., doubling shared micromobility use from the previous year.
But as adoption has increased, so have concerns regarding rider safety. Multiple hospitals have documented alarming rates of hospitalization resulting from scooter accidents. The business model, in which scooters are placed on public streets and can be unlocked by anyone with a smartphone, means that many users will have little to no experience riding such vehicles. These users are more vulnerable than traditional consumers who have time to research and test individual products before making a purchase.
Many cities have responded to scooter proliferation concerns by setting vehicle caps and “parking” requirements. These local regulations effectively maintain the status quo for automobiles and pedestrians. But they don’t protect riders who are understandably excited about trying out these new mobility modes. This role is rightfully left to the CPSC. However, the agency’s authority as it relates to motorized vehicles is far from clear.
In their bicycle regulations, the CSPC states that hardware requirements like reflectors cannot preempt additional state and local bicycle safety laws, and they establish basic mechanical and safety requirements for things like fork and frame assembly, handbrake force, and reflector positions. The agency also monitors bicycle safety by collecting accident data from hospitals, tracking consumer complaints, and conducting investigations of incidents. It also works with industry associations like ASTM, ANSI, CEN, and ISO with the goal of developing additional safety standards and test criteria.
But the CPSC’s regulations have undergone only minor revisions since their adoption more than 40 years ago. They don’t account for technological advancements like disk brakes, electric motors, or carbon fiber frames. While electric bicycles and tricycles were specifically added to the CPSC bike regulations in 2003, the agency has no requirements for throttles, motors, or batteries.
What’s more, when the CPSC has studied micromobility products, as it did in a 2005 report on powered scooters, the focus has typically been for use by young children. This reflects the now-outdated understanding that devices like electric scooters are “toys” rather than transportation modals for adults. And regulations for parts like scooter floorboards, wheel sensors, stems, and other components have never been developed. (Notably, other than the bicycle, the only vehicle with specific product requirements is the all-terrain vehicle, which were created in 2008 in response to widespread media attention about the dangers of ATVs.)
But perhaps the biggest hurdle for the CPSC in regulating micromobility is that Consumer Protection Safety Act does not explicitly cover renters of vehicles from shared fleets. Strictly speaking, CPSC purview is limited only to the manufacture and first sale of consumer products. Foreign importers and manufacturers are bound by the CPSA. But because bike and scooter fleets are not sold to their end users, they get considerably less attention from federal regulators. That’s a problem in today’s micromobility market. Regulators would be wise to focus their attention on shared fleets of e-bikes and e-scooters, given their commercial usage and less experienced (or less careful) riders.
Considering the precarious legal position in which users of shared electric vehicles are placed, basic hardware requirements are essential. For the various hardware and software issues that are presented by other new micromobility products, a flexible regulatory approach is appropriate. The CPSC, which publishes both mandatory and voluntary regulations, is the ideal agency to provide safeguards for this market. As with services like Uber and Airbnb, legislators and regulators in all levels of government must adjust to the realities of the shared economy where the primary user of a product is not the owner.
A new path for safer micromobility
There are some practical reasons that the CPSC has lagged. It is small compared to other federal regulators, and mobility products are a tiny fraction of the more than 15,000 products the CPSC oversees. When it comes to regulating motorized transport, CPSC and the National Highway Transportation Safety Administration have overlapping jurisdiction over high-speed e-bikes, motorcycles, and the like. Yet the CPSC has long been viewed as NHTSA’s little brother in this regulatory scheme.
So in order to properly regulate the vast spectrum of safety issues that consumers will encounter with micromobility products in the coming years, I believe the CPSA should be amended to create a “Mobility Division” that oversees human-scale vehicles of all shapes and sizes. This CPSC Mobility Division should be specifically authorized to regulate transportation devices involved in rental transactions, so that users of bikeshare and shared e-scooters are appropriately protected. And it should be staffed with experts who understand the varied hardware and software components that are part of today’s mobility ecosystem.
After all, if a bicycle needs to meet minimum standards for forks and frames, then an e-scooter ought to meet minimum similar requirements for floorboards and stems. And users of products like shared e-scooters arguably require special attention from consumer protection agencies given that they often have less ability to evaluate product safety than a typical consumer. Shared scooter providers continue to publicly state that safety is its top priority, but critics argue they haven’t done enough to alert customers to potential risks associated with their services.
Micromobility businesses and advocates may balk at the idea of federal regulation of their vehicles. Navigating the micro-laws of each city in which these companies deploy already presents a significant regulatory challenge. But federal regulation also bestows a kind of legal credibility that the industry desperately needs. And if micromobility matures to become the macro-economic force many believe it will be, then safety regulation is inevitable. As cities and mobility companies continue to wage war over who, what, and where these devices should be used, all riders ought to be ensured a safe ride.