December 11, 2012
On July 4, three people were severely injured in Del Mar, California, when a firepot exploded as it was re-fueled, spraying the viscous alcohol-based gel on victims sitting less than 10 feet away.
According to a July 12 report in the Del Mar Times newspaper: “One of the victims suffered third-degree burns over 50 percent of their body and had to be transported via helicopter to a hospital. The other two victims each suffered second and third degree burns over 20-30 percent of their body and were taken to the hospital via ambulance.”
In December 2011, a luckier consumer reported to the U.S. Consumer Product Safety Commission’s public consumer complaint database, SaferProducts.gov:
“I purchased Firegel pourable Citronella from Bed Bath and Beyond. I went to pour some more in my fire pot and I guess it was still hot. The gel shot out, caught the bottle of firegel on fire and caught my patio chair on fire. Luckily it did not get on my skin and I put the lid on the bottle and it went out. I was also able to stomp my chair out but it was ruined.
Despite a total of 15 companies yanking the product of its shelves, and September 2011 announcement that nine manufacturers and distributors had recalled fire pot liquid fuel gel, fire pots and their contents continue to represent a danger to consumers. And, the spectacular fallout from a patio ornament that had debuted about three years earlier continues to settle over the business, litigation and regulatory landscapes.
This week the CPSC announced its 2013 operations plan. Within the planning document is a brief mention that the agency would continue its technical review of the safety of fire pots and fuel gels in support of a potential rulemaking. In December 2011, the agency published an Advance Notice of Proposed Rulemaking, but took no further regulatory steps this year. In several speeches, commission Chairman Inez Tennenbaum has noted. “Our rulemaking is exploring the question of whether it is possible to make gel fuel safe for consumers to use…”
In just three years, the marriage of a piece of cheap pottery with an even cheaper fuel substance managed to injure at least 89 and kill at least two people. It has been just as deadly to its purveyors. At least two major distributors of the pourable fuel gel, Napa Home & Garden and Fuel Barons filed for bankruptcy, after a deluge of civil lawsuits. Bird Brain, a Michigan-based garden products business, also reportedly liquidated.
How did this happen?
It’s a story of a consumer product that falls outside of even the most basic safety regulation, and even voluntary standards. For the sellers, fire pots seemed a winner — popular and profitable and unburdened by government demands that they prove its safety. It is clear, given how quickly fire pots revealed their dangers, that little — if any — thought was given to product safety testing – despite its very purpose to create and contain fire. The fuel packaging – the plastic bottles that contained the pourable fuel gel – the pots themselves, the chemical composition of the fuel, its consistency were each a link in a chain of potential disaster. The shape of the pot allowed minute traces of fuel to pool at the bottom. The fuel composition created a low, invisible flame users couldn’t detect. The bottle, without flame arresters, allowed the flame to travel back from the pot. The thickened fuel, which splatters and sticks to anything in its path, ultimately inflicted greater damage, when would-be rescuers spread the flame over burn victims when they meant to smother it.
A video produced by the CPSC shows how quickly the fuel can be ignited. (It was originally set to be aired in September 2011, when the CPSC and the nine manufacturers announced the gel fuel recall. But, the manufacturers objected, and CPSC later was released the video through Freedom of Information Requests.)
And yet, an October deposition of Bird Brain CEO Christine King taken by Attorney Monte Beck gives an inside view of how clueless companies can be about the safety of a product they import and distribute. (By regulatory definition such companies are considered the manufacturer.)
Beck, based in Bozeman, Montana, represents 78-year-old Glada Hammet, who suffered second and third-degree burns over about 20 percent of her body, after being doused in exploding fuel gel. According to the complaint filed in Montana’s Eighth Judicial District Court in Cascade County, Hammet was visiting her daughter Karla Bumgarner in June 2011. As they sat on the patio of her Great Falls home, Bumgarner noticed that the flame in her Bird Brain fire pot had gone out. After several failed attempts to relight the pot, she determined that it was out of fuel. Bumgarner retrieved a bottle of the fuel gel, and refilled the pot. Within a few seconds, both women heard popping noises and the fire pot exploded, spewing the ignited gel in all directions. Hammet, seated only a few feet away, was spattered on her neck, face, chin and chest. She was eventually flown to a burn center in Utah.
In December 2011, Hammet filed a liability lawsuit against Bird Brain, Home Depot and her daughter. The litigation is still in the discovery phase.
Hammet’s serious injuries were the result of a classic fire pot explosion scenario, and yet. King seemed to have no inkling that this could occur. She blamed the 44 claims against her company as the consequences of customer misuse.
“It is a safe product as evidenced by the vast number of people who used it safely,” she testified.
She described Bird Brain as “a very successful growing” Mom-and-Pop operation that King and her husband, Courtney, ran for 18 years. Bird Brain, which sold bird feeders, planters, gazing balls and other garden décor, decided to enter the fire pot market in 2008. They did not invent the fire pot or the fuel. They simply bought the components from already established suppliers, selling to other retailers. The fire pots were sold through big-box retailers like Home Depot, which in some cases, took direct shipment from the Chinese suppliers.
In the spring of 2011 when the CPSC opened an investigation into fire pot injuries, Bird Brain sent a letter to her customers – including Home Depot – assuring them that their product had undergone “extensive” research and testing. In the deposition, King admitted that Bird Brain itself actually did no testing. She had never heard of a Failure Modes and Effects Analysis, a standard component of product safety and reliability analysis that attempts to evaluates all of the ways a product could fail and the consequences of those failures. She said that she didn’t know anything about the fire pots potential for explosions.
Beck blamed the scenario which severely injured Glada Hammet is on “a rush to market,” he says. “They just slapped a label on it and sent it on through.”
After the CPSC initiated an investigation into fire pot and fuel gel hazards, Bird Brain decided to intensify the warnings on the package, and have an independent company conduct a formulation test on the fuel to confirm its ingredients.
“At the instruction of our counsel, we did informal nonscientific garage type testing, I guess, if you will, with nonscientific people, but beyond that, nothing,” she said the deposition. “There was no quality control.”
The Kings thought they could survive the recall, which cost the company $3 million. In fact, in February, King and representatives of the Sterno company were demonstrating to CPSC staff a new fire pot fuel gel system using a single-use can of ethanol fuel gel. The accompanying Powerpoint presentation included a standards testing schema for the fuel gel flashpoint, ejections, labeling, fire pot performance, including stability and spillage.
But Bird Brain isn’t likely to be the company conducting such tests. By spring, the Kings learned from their insurance carriers that they wouldn’t have enough coverage to pay all the claims against them. In June they decided to sell whatever assets they had, laid off their small staff and shut down the company. (Although consumers can still buy Bird Brain fire pots online and in Home Depot stores.) She said in her deposition that she hadn’t looked at the photos of Hammet’s injuries because it was too distressing.
“We are devastated as well,” she testified. “We have worked our entire life to build this business so that we could retire and it’s gone now. And so I have been advised by my doctor to not subject myself to things that I – I can’t really do anything about, and it’s painful for me and it’s stressful, and I’m already under a great deal of stress because of what’s happened.”
Beck is unmoved.
“They may have had a business setback – which all businesses do. But it’s not even close to the heart-wrenching injuries that Glada Hammet suffered,” he said. “Not once do they acknowledge that this product is inherently unsafe and they are still in denial about the impact on the scores of people who have had their lives changed physically and emotionally forever – all for a product that has such little utility .”