John A. Danaher III
Commissioner

Department of Public Safety
1111 Country Club Road
Middletown, CT 06457

Dear Commissioner Danaher:

By letter dated March 5, 2008, you requested an opinionregarding the scope of our Supreme Court’s decision in American Promotional Events, Inc., v. Blumenthal, 285 Conn. 192 (2008).  Specifically, your letter asks whether the decision in American Promotional Events bars the sale of fountains and sparklers in Connecticut that produce pyrotechnic effects other than a “shower of colored sparks or smoke” as referenced in Conn. Gen. Stat. § 29-356(3).  Additionally, you seek advice on how to distinguish between a “primary pyrotechnic effect” and an effect that is “merely incidental” to the combustibility of the product, as those terms are used in the American Promotional Events decision.

In 2006, the legislature amended §29-356 to define “sparkler” as “a wire or stick coated with pyrotechnic composition that produces a shower of sparks upon ignition.”  This amendment also, for the first time, included in §29-356 a definition of “fountain” as consisting of “any cardboard or heavy paper cone or cylindrical tube containing pyrotechnic mixture that upon ignition produces a shower of colored sparks or smoke.”  At the same time, the legislature amended §29-357 to permit the sale and use of sparklers and fountains, as those terms are defined in §29-356, provided they remained non-explosive and nonaerial, and met certain enumerated limitations regarding construction, composition and the like.  Critically, the only pyrotechnic effects that are permitted by the statutes are showers of colored sparks or smoke.

In American Promotional Events, the Supreme Court interpreted these statutory provisions as they applied to a certain product, known as Piccolo Pete.  This particular firework consisted of a cylindrical tube containing pyrotechnic material whose primary pyrotechnic effects were a sustained flame rising four or more inches above the product for five to six seconds, and a loud whistle.  The product emitted some sparks and smoke, but not of an amount that could fairly be described as a shower.  Thus, the question before the court was whether a product constructed like a fountain, but whose primary pyrotechnic effect was something other than a shower of colored sparks or smoke, could be legally sold as a fountain as that term is defined in § 29-356.

In determining that Piccolo Pete was not a fountain, the Supreme Court recognized that the legislature “has broadly prohibited the use and sale of most fireworks that pose significant public safety concerns because of their combustibility,” characterizing our fireworks statutes as representative of “the fact that fireworks are widely banned and intensively regulated under our statutory scheme.”  Id. at 204-05.  To further the important public safety interests advanced by our fireworks statutes, the Court determined that § 29-357 (3), permitting the sale of sparklers and fountains, must be read narrowly to give full consideration to “the policy that the legislature sought to implement in enacting the statute.”  Id. at 205 (citation omitted).

The Court then turned to the statutory language that limited the pyrotechnic effects of sparklers and fountains.  Recognizing that the phrase “shower of colored sparks or smoke” is somewhat awkward, in that the word “shower” must be read to modify both “colored sparks” and “smoke,” the Court reasoned that such a reading is nonetheless appropriate because “the legislature was seeking to ensure that, to be classified as a fountain, [a] firework must produce either a significant amount of sparks or a significant amount of smoke, the effects that represent the salient pyrotechnic characteristics of the particular type of firework known as a fountain.”  Id. at 204.  Accordingly, when §§ 29-356 and 29-357 are read together and in proper context, they “evince a legislative intent that a firework shall be deemed to fall within the limited exemption for sparklers and fountains only if the primary or principal pyrotechnic effect of the firework is the pyrotechnic effect that the legislature expressly has permitted.”  Id.  Noting that 29-356 (3) “does not mention any other pyrotechnic effect,” the Supreme Court concluded that “a firework whose primary pyrotechnic effect is not a shower of colored sparks or smoke simply is not a fountain within the meaning of § 29-356 (3).”  Id.  Smoke and a flame are permitted only if they are “achieved through ignition” and are “ancillary to the fountain’s primary pyrotechnic effect of sparks and smoke.”  Id.

Drawing from this analysis, we answer your questions as follows.  First, with respect to products that crackle or whistle, the American Promotional Events decision did not directly address whether such an effect is permitted.  However, applying the reasoning of the decision, it is clear that such audible effects are permitted only if they are “achieved through ignition” and are “ancillary to the fountain’s primary pyrotechnic effect of sparks and smoke.”  Crackling and whistling sounds cannot be the primary pyrotechnic effect, and if present at all, must be incidental to the ignition process that generates the fountain’s “shower of colored sparks or smoke.”

With respect to the question of how your agency should distinguish between a primary and incidental effect, the Supreme Court’s analysis is instructive.  Viewing a video demonstration of an ignited Piccolo Pete, the Supreme Court concluded that the product (1) “produces only a small amount of smoke,” (2) the smoke “is merely the ancillary byproduct of the flame that Piccolo Pete produces and not the primary or predominant pyrotechnic effect of the firework,” and (3) this ancillary smoke “cannot possibly be characterized as a shower of smoke.”  For the purpose of its analysis, the Court reasoned that it need not determine whether Piccolo Pete’s predominant pyrotechnic effect is its whistle or its flame since “it is sufficient that Piccolo Pete’s primary pyrotechnic effect is not the smoke that it emits.”  Id. at 207-8.  Using this framework as a guide, a “shower of colored sparks or smoke” must be the primary or predominant pyrotechnic effect, and other effects are permissible only if they are ancillary byproducts of the fountain’s ignition.

We welcome the ongoing opportunity to work together with your agency to assure the public is protected from illegal, and potentially dangerous, fireworks.