Attorney General's Opinion
Attorney General, Richard Blumenthal
April 29, 2008
John A. Danaher III
Department of Public Safety
1111 Country Club Road
Middletown, CT 06457
Dear Commissioner Danaher:
By letter dated
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.”
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.”
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.”
We welcome the ongoing opportunity to work together with your agency to assure the public is protected from illegal, and potentially dangerous, fireworks.
Very truly yours,