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Can Federal Regulators Ground Hoverboards?

This article was originally published on February 26, 2016 in the Washington Examiner.

Not very long ago, hoverboards were the future. When skateboards rolled everywhere, their wheel-less descendants were already floating in our imaginations. The allure was so compelling that the movie “Back to the Future Part II” — released in 1989 but set in 2015 — even features a hoverboard chase scene. (Then again, it also had jet-powered flying cars and the Chicago Cubs winning the World Series.)

Now that hoverboards have finally arrived, they’re not exactly what we expected. For one thing, they don’t actually hover; you have to balance on a board with two wheels. It’s really just a Segway without handles.

This awkward design has made them very difficult to balance. A quick YouTube search yields countless videos of hapless hoverboarders falling to the floor. You can see a hoverboard topple Mike Tyson faster than he knocked out Leon Spinks.

More significantly, there have been many reports of hoverboards catching fire when being recharged, apparently a result of a battery design flaw. In a letter posted on the agency’s website last month, Consumer Product Safety Commission Chairman Elliott Kaye assured consumers, “I have directed agency staff to work non-stop to find the root cause of the fire hazard, how much of a risk it might present, and to provide consumers with answers as soon as possible.”

What if the CPSC learns that these fires are the result of an un-fixable design flaw? It should ban the product, right?

To answer this question, it might help to consider a trendy toy from several years ago called Buckyballs. Buckyballs were very small, very powerful magnets with which you could build elaborate shapes and structures. But they caused many medical emergencies: When children swallowed more than one of the magnets, the balls would cause serious damage to their intestines. After initially forcing the company marketing Buckyballs to issue a recall and provide a warning label, the CPSC eventually forced the product from the shelves in 2012.

But even if you can’t buy Buckyballs through Target, Walmart, or Amazon, they are remarkably easy to find. The product’s home page enables you to buy them directly from China, presumably even from the same manufacturer that produced the original Buckyballs. The manufacturer isn’t breaking any laws by making the toy; the shipper isn’t breaking a law by shipping it; nor is the consumer breaking any law by purchasing it. The CPSC is therefore powerless to stop the transaction, and a “banned” toy is delivered legally with none of the profits or product-control based in the United States.

This ironic situation doesn’t mean that Buckyballs should have been allowed to market to children. Rather, it illustrates the unintended consequences of regulating products, particularly in our online and global economy.

The bottom line is that technology has created a blow-off valve for consumers. Even in the face of overly-burdensome regulation, people have access to purchase what they want anyway — but without the federal government having any control over the product.

Which brings us back to the future. Even if regulators determine that hoverboards are unavoidably dangerous, they should be wary of instituting an outright ban on the product. Such a measure would not completely prevent consumers from buying hoverboards online from other countries. And those legally-purchased hoverboards, though still dangerous, would not be subject to safety regulations and recalls.

When it comes to protecting consumers, modest methods of regulation and oversight are often preferable to all-encompassing — but un-enforceable — bans.