May 29th, 2020

The Fact Checker: The Truth Behind the Rhetoric

Cory Booker claims that toy guns are more regulated than real guns. Not quite

Glenn Kessler

By Glenn Kessler The Washington Post

Published May 13, 2019

Cory Booker claims that toy guns are more regulated than real guns. Not quite
"Most people don't know that consumer product safety literally - one industry that's been exempted is the gun lobby. So we have different regulations for toy guns and no regulations for the weapons on our streets that are killing so many people." - Sen. Cory Booker, D-N.J., interview on CNN , May 6, 2019

"In the US we have more federal regulation over toy guns than real ones" - Booker, in a tweet , May 7

"Nowadays, there is more regulation over toy guns than real ones. While medicine, children's toys, and any number of other consumer products are subject to regulation by the federal government, firearms are exempt. In other words, gun manufacturers have little incentive to make their products safer. Cory will work to close this loophole in federal oversight and allow the Consumer Product Safety Commission to ensure gun safety by making safety warnings and issuing recalls for faulty firearms." - Booker, in a Medium post , May 6

These are three examples of a catchy talking point from the 2020 presidential hopeful - that toy guns are subject to more regulation than real guns. The Medium post is rather specific: The Consumer Product Safety Commission, because of a "loophole," does not assess the safety of guns. But in television interviews and tweets, that nuanced point gets turned into misleading shorthand - there is "more federal regulation" of toy guns, or there are "no regulations" for guns.

Booker's point is not particularly original. Gun-control advocates have been calling for consumer safety oversight of guns for decades. But he veers off course when he compares regulatory oversight of guns and toy guns.

The website of the CPSC is clear. It oversees the safety of many products, but other agencies are in charge of certain products: "We have jurisdiction over thousands of types of consumer products, from coffee makers to toys to lawn mowers. Some types of products, however, are covered by other federal agencies. For example, cars, trucks and motorcycles are covered by the Department of Transportation; food, drugs and cosmetics are covered by the Food and Drug Administration; and alcohol, tobacco and firearms are within the jurisdiction of the Department of the Treasury."

While the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is referenced here, a funny thing happens when you click the link that takes you to the page with a list of federal agencies with safety oversight of other products. Guns and ATF are not listed.

Booker's staff says that's the gap the senator is trying to highlight: No federal agency is charged with ensuring a safe design for guns. The Consumer Product Safety Commission Improvements Act of 1976 explicitly said the agency would not have this role: "The Consumer Product Safety Commission shall make no ruling or order that restricts the manufacture or sale of firearms, firearms ammunition, or components of firearms ammunition, including black powder or gunpowder for firearms."

But there are clearly many laws and regulations governing the sale, distribution and use of guns. Types of firearms, such as machine guns, have been banned. (The Fact Checker in 2013 debunked a common claim that there are 20,000 laws governing firearms but determined there are around 300 federal statues that do so.)

ATF implements gun laws passed by Congress, and sometimes the laws are reinterpreted from a safety or design perspective. ATF in 2018 banned bump stocks, for example, saying they fell within the definition of a machine gun under the law.

Jon S. Vernick, who in 2000 co-wrote a University of Pennsylvania law review article calling for a public health approach to firearms oversight, said Booker is correct that no federal agency has authority to regulate the safe design of firearms.

"The ATF has extremely narrow authority regarding firearm design," he said. "In particular, firearms may only be imported if ATF determines that they are 'generally recognized as particularly suitable for or readily adaptable to sporting purposes' (known as the sporting purposes test)."

Still, firearms, like all consumer products, are liable for lawsuits if their products malfunction. (Federal law, however, protects gun manufacturers and dealers from being held liable when crimes have been committed with their products.) Remington, for instance, in 2018 settled a lawsuit from owners who claimed that a defective trigger mechanism allowed the gun to be fired without the trigger being pulled. There are also voluntary industry standards.

The gun industry vigorously disputes Booker's statement that there is "more regulation" over toy guns.

"Our industry is the most heavily regulated industry in the country. No other industry is regulated at the federal, state and local level to the extent our industry is regulated, which include design and performance standards," said Mark Oliva, a spokesman for the National Shooting Sports Foundation, a trade association for firearms manufacturers. "The federal agencies that regulate the industry include ATF, FBI, State Department, Commerce Department, IRS and the U.S. Fish and Wildlife Service. No other consumer product requires the licensed dealer to conduct a criminal-background check on a prospective purchaser before they can sell the product. Firearm manufacturers can be sued for product defect claims, although such claims are exceedingly rare given that there are over 400 million firearms in civilian possession in the United States."

By contrast, there are no regulations governing the sale, distribution and ownership of toy guns, experts say. The main exception is a 1986 law that requires a blaze orange plug in the muzzle to distinguish toy guns from real guns. (Anecdotally, that's the first thing a kid pulls off when he or she gets a new toy gun.)

Gun rights advocates say that "consumer safety" is a Trojan horse for eventually banning guns. Several pointed to a New York Times opinion article written in 1999 by Josh Sugarmann, executive director of the Violence Policy Center, calling for health and safety regulation of guns and then noting: "Any rational regulator with that authority would ban handguns." The VPC has long highlighted the fact that the CPSC cannot assess the safety of firearms.

"We don't want unelected bureaucrats to ban handguns," said David Kopel, research director at the Independence Institute, a libertarian think tank.

Eugene Volokh, a law professor at the University of California at Los Angeles, said there appear to be relatively few cases of people being injured by defects in firearm design or manufacturing.

"My sense is, this is something that is not a material factor in the gun debate," he said. "Certain products are unsafe because of design. Others can be unsafe from misuse."

He places firearms in the latter category. He noted that more people die of alcohol abuse than from guns each year in the United States, including innocent third parties, "but you can't make whiskey safer."

Some states, such as Massachusetts and California, have imposed safety oversight over firearms. California requires that all new models of semiautomatic handguns stamp the handgun's serial number in two locations on each round of ammunition - which apparently is not possible. In effect, that has meant all pistol models created since May 2013 are prohibited from commercial sale in California.

An appeal of a ruling upholding the statute is pending before the Supreme Court. Volokh said he is unaware of any research showing whether state-level safety measures have been effective. Opponents of the California statute argue that, paradoxically, the law has meant Californians are unable to buy newer weapons with safety improvements, such as better ergonomics and reduced recoil.

Advocates of CPSC oversight say it will not lead to a ban, but to better collection of information about gun safety because the agency could analyze data relating to accidental deaths and injuries associated with them. That could also lead to better designs, such as preventing guns from firing when dropped. Moreover, recalls of clearly defective firearms could be accomplished more quickly than waiting for results from litigation. (These points were made in a 2016 blog post by then-CPSC Commissioner Marietta Robinson.)

The Fact Checker obviously has no opinion on whether guns should face regulatory oversight for safety or design. But Booker's comparison of the regulations of toy guns and real guns is specious.

In the Medium post, he made clear that when he said "more regulation," he meant CPSC regulation, not all regulation. The careful language was probably just One or Two Pinocchios. But such nuances were lost when he spoke on television or tweeted about it, pushing himself into the Three Pinocchio range.

The CPSC does not regulate guns, but it does regulate toy guns. That does not mean there are "more regulations" of toy guns than real ones. Firearms, at just about every level, are highly regulated in the United States. Booker is calling for another level of regulation, but he can't suggest toy guns are even more highly regulated.

Three Pinocchios

An award-winning journalism career spanning nearly three decades, Glenn Kessler has covered foreign policy, economic policy, the White House, Congress, politics, airline safety and Wall Street. He was The Washington Post's chief State Department reporter for nine years, traveling around the world with three different Secretaries of State. Before that, he covered tax and budget policy for The Washington Post and also served as the newspaper's national business editor. Kessler has long specialized in digging beyond the conventional wisdom, such as when he earned a "laurel" from the Columbia Journalism Review