(Photos: a glimpse of bicycles in "Made in Dagenham")
1. The Standard for bicycle helmets was first introduced by Consumer Protection Notice published in the Commonwealth Government Gazette on 13 January 1988 in response to concerns about the adequacy of the safety of bicycle helmets on the market (see p.2). According to the Council of Australian Government (COAG) principles, since that time the regulation has undergone regular review to examine whether continuing government intervention in the market has been justified.
2. During November 2008, Standards Australia published a revised version of its standard for bicycle helmets AS/NZ 2063:2008, in effect providing helmet standard domination of the market to the exclusion of previously accepted ones, namely the Snell B-95 standard. By invoking the terms of the Agreement on Technical Barriers to Trade, as I understand it SAI Global, Standards Australia and the NSW Government disregarded international free trade agreements with their unsubstantiated predictions of future benefits of their specific bicycle helmet standard without a reasonable basis for the claim.
3. Whilst the Australian Competition & Consumer Commission’s (ACCC) Regulation Impact Statement (RIS) cites Gibson and Cheung’s report highlighting concerns about Snell helmets (see p.7), I draw attention to another section in the Gibson & Cheung report whereby they claimed ‘overall, the comparison of the test results showed that the actual Snell B95 standard test requirements are slightly stricter than the requirements for AS/NZS 2036-1996 and have the potential to produce a slightly more protective helmet’ (see p.viii). It appears to me that the scientific and test data does not support SAI Global, Standards Australia and the NSW Government’s claim of safety protection represented by the promotion and the forecast of AS/NZ 2063:2008.
4. The ACCC’s Regulation Impact Statement states that ‘there is evidence that cyclists are subject to a greater risk of serious head injury if they are involved in an accident and are not wearing an effective safety helmet’ (see p.3). Yet this is subsequently contradicted in the same document a page later where it is stated that: ‘nearly one-third (60) of all male cyclists (187) and nearly half (27) of male cyclists in the 10 to 19 age group (55) killed in road crashes were not wearing a helmet. Similarly, nearly one-third (11) of all female cyclists (35) killed in road crashes in the period were not wearing a helmet’ (see p.4). Clearly this set of figures indicates that more than two-thirds of all male cyclists and more than half of all male cyclists in that particular age group were wearing helmets when they were killed in road crashes, and that more than two-thirds of all female cyclists killed were also wearing helmets.
5. As I understand it the Australian Consumer Law upholds that bicycle helmet protection claims should only be made if there is a real safety benefit as opposed to a benefit that is irrelevant, insignificant or mandated by law. To date helmet testing standards have been simplistic and subject to linear acceleration impact only. No tests have been carried out using angular acceleration impact leading to rotation of the brain and possibly more serious diffuse injuries (see p.2). Representations are made that helmets are designed for only one impact before replacement (see p.2) yet many bicycle incidents involve motor vehicles and multiple impacts invoking the likelihood of reduced protection as represented by the current helmet guidelines.
6. Upon my reading of the law it would appear that companies must ensure their claims are scientifically sound and appropriately substantiated [Competition and Consumer Act 2010 (Cth) Schedule 2, s29(g)]. I draw particular attention to the fact that it is not enough for each representation to be technically or narrowly correct; it is just as important to look at the overall impression created in the minds of average consumers in the target audience. I believe that bicycle helmet promotion should be denounced as vague, ambiguous and unsubstantiated representations that possess the ability to mislead or deceive. I contend that safety protection claims for bicycle helmets cannot be substantiated and therefore ought to be removed.
7. In view of current academic dispute, as far as I can make out SAI Global’s, Standards Australia and the NSW Government’s promotion contain representations which, individually are misleading and deceptive, and as a whole produce a ‘safety-washing’ effect that gives a misleading impression of bicycle helmets. The representations of their promotion have overstated the level of scientific acceptance (see p.1), and have claimed a benefit that is not universally proven and in fact is currently in dispute (see p.116).
Notwithstanding any of the above or content from previous posts alluding to my 'recent' correspondence with the ACCC, the ACCC have 'recently' informed me that given:
"...the standard is set out in the "Trade Practices (Consumer Product Safety Standard) Regulations 2001 - Bicycle Helmets" and as such has the effect of Commonwealth law. According to section 2A of the CCA (Competition & Consumer Act 2010), the provisions of the CCA apply to the Commonwealth or Commonwealth authorities in so far as they are carrying on a business. In enacting regulations, the Commonwealth is in fact performing a legislative function and not carrying on a business within the meaning under section 2A of the CCA. Therefore it is beyond the jurisdiction of the ACCC and the CCA to investigate your concerns relating to the mandatory standard."
So there we have it - back to 'square 1' - sigh
LITFL Review 179
4 hours ago