the failure of youth football helmet regulation and the necessity of

SITTING ON THE BENCH: THE FAILURE
OF YOUTH FOOTBALL HELMET
REGULATION AND THE NECESSITY OF
GOVERNMENT INTERVENTION
JASON NAVIA
TABLE OF CONTENTS
Introduction .............................................................................................. 266
I. Background: The Development of Volunteer
Industry Oversight .......................................................................... 273
A. The Creation of NOCSAE and Early Testing Procedures. .... 273
B. The Role of the National Athletic Equipment
Reconditioners Association...................................................... 275
C. Current NOCSAE Testing Regulations .................................. 276
D. NOCSAE’s Current Stance on the Emerging Issues of
Sports-Related Concussions .................................................... 278
II. Increased Focus on the Risk of Concussions in School-Aged
Athletes ........................................................................................... 279
A. Regulatory Responses to Increasing Concerns
About Concussions .................................................................. 279
B. The Children’s Sports Athletic Equipment Safety Act ............ 281
1. Section 3: Football Helmet Safety Standards .................... 282
2. Section 4: Application of Third-Party Testing and
Certification Requirements to Youth Football Helmets .... 284
3. Section 5: False or Misleading Claims with Respect to
Athletic Sporting Activity Goods ....................................... 284
 J.D. Candidate, 2013, American University Washington College of Law; B.A.,
2007, Davidson College. I would like to thank Professor Lindsay Wiley for her helpful
comments on earlier drafts. I would also like to thank all members of the Administrative Law
Review for their hard work and support throughout the editorial process.
265
266
ADMINISTRATIVE LAW REVIEW
[64:1
III. Reconciling the Current NOCSAE Standards
with the Proposed Legislation ......................................................... 285
A. How the Children’s Sports Athletic Equipment Safety Act
Will Affect the Industry ............................................................ 285
B. Recommendations to Improve the Effectiveness of the
Children’s Sports Athletic Equipment Safety Act ................... 288
Conclusion ................................................................................................. 292
INTRODUCTION
Over the last several years, an increasing amount of attention has been
paid to the frequency and causes of traumatic brain injuries (TBIs),1
commonly known as concussions.2 Given several recent high-profile cases
of current and former athletes suffering debilitating and life-threatening
side effects of repeated brain trauma, concussions have become the focal
point of heightened concern and the subject of new research within the
medical and sports communities.3 The Center for the Study of Traumatic
1. See NINDS Traumatic Brain Injury Information Page, NAT’L INST. OF NEUROLOGICAL
DISORDERS & STROKE, http://www.ninds.nih.gov/disorders/tbi/tbi.htm (last updated Jan.
30, 2012) (stating that traumatic brain injuries (TBIs) are a form of acquired brain injury
that occurs when a sudden trauma causes damage to the brain, commonly resulting from the
head suddenly and violently hitting another object); see also Traumatic Brain Injuries, CTR. FOR
DISEASE CONTROL & PREVENTION, http://www.cdc.gov/traumaticbraininjury/ (last
updated Jan. 17, 2012) (recognizing TBI as a serious public health problem in the United
States as approximately 1.7 million people sustain some level of TBI annually). It should be
noted that while this Comment focuses on the relationship between youth athletics and
concussions, the difficulty in diagnosing and treating concussions has been addressed in
other fields, particularly the military. See Gregg Zoroya, More Troops’ Concussions Diagnosed
Under New Rules, USA TODAY, Oct. 28, 2010, http://www.usatoday.com/
news/military/2010-10-28-1Aconcussions28_ST_N.htm (reviewing the new policies of the
military for treating troops suffering from the effects of concussions sustained in the
battlefield); see also Lizette Alvarez, Home From War, Veterans Say Head Injuries Go Unrecognized,
N.Y. TIMES, Aug. 26, 2008, at A1 (discussing the close relationship between post-traumatic
stress disorder and traumatic brain injuries).
2. See, e.g., Stephanie Smith, Dead Athletes’ Brains Shows Damage from Concussions, CNN
(Jan. 26, 2009), http://articles.cnn.com/2009-01-26/health/athlete.brains_1_concussionsbrain-damage-traumatic-encephalopathy?_s=PM:HEALTH (addressing the studies of the
Center for the Study of Traumatic Encephalopathy in Boston, which have focused on the
dangerous long-term effects of concussions and the manner in which such side effects have
afflicted former athletes).
3. See Researchers to Study 49ers RBs, ESPN, http://sports.espn.go.com/nfl/
news/story?id=6643720&campaign=rss&source=ESPNHeadlines (last updated June 9,
2011) (detailing the analyses of the brains of two deceased former National Football League
(NFL) players who both suffered from Chronic Traumatic Encephalopathy (CTE), which is
caused by repeated brain trauma); see also Alan Schwarz, Study Says Brain Trauma Can Mimic
A.L.S., N.Y. TIMES, Aug. 17, 2010, http://www.nytimes.com/2010/08/18/
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
267
Encephalopathy in Boston, in conjunction with the Sports Legacy Institute,
have garnered national headlines by studying the brains of living and
deceased athletes to better understand the cumulative effects of these
injuries.4 In its studies, the Sports Legacy Institute has found that athletes
with a history of concussions have reported long-lasting symptoms of
memory loss, motor function loss, and psychological disorders such as
depression.5 In response, the National Football League (NFL) has adopted
stricter internal policies regulating when players who suffer from concussion
symptoms can return to the field.6 Additionally, only in 2010 did the
National Collegiate Athletic Association (NCAA) create an Associationsports/18gehrig.html (citing a recent study demonstrating that NFL players who suffered
from CTE exhibited some of the same neurological defects of Amyotrophic Lateral
Sclerosis). See generally Malcolm Gladwell, Offensive Play: How Different Are Dogfighting and
Football?, NEW YORKER, Oct. 19, 2009, http://www.newyorker.com/reporting/
2009/10/19/091019fa_fact_gladwell?currentPage=all (surveying several anecdotes of
former football players suffering from severe physical and psychological disorders and the
medical studies seeking to explain the ailments that are frequently seen in the brains of
deceased former football players).
4. See, e.g., Smith, supra note 2 (detailing the findings of a study that showed evidence
of CTE in both a deceased former NFL player, as well as in the brain of a deceased
eighteen-year-old multisport athlete who reportedly suffered multiple concussions).
5. See Alan Schwarz, Duerson’s Brain Trauma Diagnosed, N.Y. TIMES, May 2, 2011,
http://www.nytimes.com/2011/05/03/sports/football/03duerson.html (addressing the
finding that the brain of former NFL player Dave Duerson, who died of a self-inflicted
gunshot wound at fifty years old, exhibited clear patterns of CTE, which contributed to his
deteriorating mental state).
6. See Goodell Issues Memo Changing Return-to-Play Rules for Concussions, NAT’L FOOTBALL
LEAGUE, http://www.nfl.com/news/story?confirm=true&id=09000d5d814a9ecd&template
=with%20video%20with%20comments (lasted visited Feb. 8, 2012) (discussing the 2009
memorandum that NFL Commissioner Roger Goodell sent to all NFL teams outlining
stricter guidelines for determining when a player who previously suffered a concussion
during practice or a game can return to play); see also Protecting Student Athletes from Concussions:
Hearing on H.R. 6172 Before the H. Comm. on Educ. & Labor, 111th Cong. 22 (2010) [hereinafter
Hearings], (statement of Sean Morey, Executive Board Member, NFL Players Association)
(stating the NFL is actively working to change the locker room culture and on field
management of concussions). But see Ken Belson & Alan Schwarz, Concussion Treatment Cited
in Suit Against N.F.L., N.Y. TIMES, July 20, 2011, http://www.nytimes.com/
2011/07/21/sports/football/retired-players-sue-nfl-over-treatment-of-concussions.html
(citing a recently filed civil action in which seventy-five former NFL players filed suit against
the NFL and football helmet manufacturers, alleging teams mismanaged the players’
concussions and that the NFL purposefully concealed evidence of the long-term effects of
head injuries). Specifically, the complaint alleges negligence and fraud against the NFL for
how it handled concussion testing procedures and treatment. Plaintiffs’ Complaint for
Damages & Demand for Jury Trial at paras. 524–66, Maxwell v. NFL, No. BC465842 (Cal.
Super. Ct. July 19, 2011). Additionally, the plaintiffs allege against the helmet
manufacturers claims of strict liability for design and manufacturing defects and failure to
warn plaintiffs of the risk of concussions. Id. at paras. 567–81.
268
ADMINISTRATIVE LAW REVIEW
[64:1
wide policy governing concussion management of injured collegiate
athletes.7 While it appears the long-term consequences and detrimental
effects of concussions sustained by athletes are beginning to be understood
and appreciated,8 the sports world, both professional and amateur, is still
lacking clear guidance in creating preventative measures and equipment to
curb the proliferation of such injuries.
In just the last three years, over 400,000 concussions were reported as a
result of participation in high school athletics9; chief among the causes of
7. Memorandum from Debra Runkle, Chair of NCAA Comm. on Competitive
Safeguards and Med. Aspects of Sports (CSMAS), to NCAA Head Athletic Trainers (Apr.
29,
2010),
available
at
http://www.ncaa.org/wps/
portal/ncaahome?
WCM_GLOBAL_CONTEXT=/ncaa/ncaa/academics+and+athletes/personal+welfare/
health+and+safety/concussion+management+plan+memo (notifying trainers of the
adoption of an association-wide concussion management plan for universities and colleges in
all three divisions of the NCAA, as well as outlining recommendations for concussion
management plans). Notably, the first provision in the NCAA’s recommended Concussion
Management Plan states, “Institutions shall require student-athletes to sign a statement in
which student-athletes accept the responsibility for reporting their injuries and illness to the
institutional medical staff, including signs and symptoms of concussions. During the review
and signing process student-athletes should be presented with educational material on
concussions.” Id. at 3 (footnote omitted). Clearly, the NCAA is reminding its affiliated
institutions of the potential legal pitfalls of assuming responsibility for managing the
observation and treatment of student athletes.
8. See Hearings, supra note 6, at 23 (statement of Sean Morey, Executive Board
Member, NFL Players Association) (indicating NFL’s leadership has begun to recognize the
severe effects of concussions on its athletes and is taking steps to better protect its players
from being cleared to play before they are medically able to do so); Smith, supra note 2
(highlighting the findings of CTE in the brains of recently deceased former NFL players);
Memorandum from Debra Runkle to Head Athletic Trainers, supra note 7 (pointing out to
affiliated institutions that the NCAA’s policies stem from continuing research and
communications with the medical community).
9. See The Impact of Concussions on High School Athletes: Hearing Before the H. Comm. on Educ.
& Labor, 111th Cong. 3 (2010) (statement of Rep. Miller, Chairman, H. Comm. on Educ. &
Labor) (introducing the topic of how concussions impact the academic wellbeing and quality
of life of high school athletes). Interestingly, there are several cases in which the plaintiff was
an athlete suffering from a nonconcussion injury and sued an equipment manufacturer for
damages. See, e.g., Green v. Schutt Sports Mfg. Co., 369 Fed. App’x 630, 637 (5th Cir. 2010)
(holding, inter alia, that the helmet manufacturer was allowed to admit evidence that the
helmet complied with National Operating Committee on Standards for Athletic
Equipment’s (NOCSAE’s) standards); Rodriguez v. Riddell Sports, Inc., 242 F.3d 567, 577–
78 (5th Cir. 2001) (holding that the helmet manufacturer was not strictly liable for the
reconditioner’s failure to replace old padding with newer energy-absorbing foam and that
the mother could not recover for bystander emotional distress); Lister v. Bill Kelley Athletic,
Inc., 485 N.E.2d 483, 487 (Ill. App. Ct. 1985) (finding a helmet manufacturer and retailer
not liable for a plaintiff’s permanent quadriplegia, as the helmet was not defectively
designed, and that “the possibility of injury result[ed] from a common propensity of the
product which is open and obvious”). In contrast, no cases could be found in which an
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
269
these concussions is the participation of young athletes in football.10 An
estimated 4.5 million children play organized football in the United States,
which includes about 1.5 million high school participants.11 Yet, despite
the enormous number of student athletes who require proper protection,
there is a noticeable lack of modern standards in terms of effective football
helmet regulation. This institutional void can be seen on several levels,
including the manner in which equipment manufacturers test their
products, the widespread use of outdated or defective helmets, and how
helmet manufacturers may advertise the safety benefits of their products to
the public.12
Since its formation in 1969, the National Operating Committee on
Standards for Athletic Equipment (NOCSAE), a volunteer trade
association, has been the governing body responsible for the oversight of
sports safety equipment standards in the United States.13 Among
NOCSAE’s goals when it was first created was the development of a more
advanced understanding of athletic equipment, particularly an
understanding of protective gear for contact sports.14 NOCSAE recognized
that this meant developing testing standards for equipment designed for
contact sports, specifically football helmets.15 However, NOCSAE’s testing
standards for football helmets have not changed since 1973,16 despite the
injured athlete suffering from the effects of a concussion sued a football helmet manufacturer
for a defective product. The majority of concussion lawsuits focus on negligence of coaches,
physicians, or school administrators in properly diagnosing and treating concussions. See,
e.g., Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 679 N.W.2d 198 (Neb. 2004) (focusing
on the negligence of coaching staff). See generally Alexander N. Hecht, Legal and Ethical Aspects
of Sports-Related Concussions: The Merril Hoge Story, 12 SETON HALL J. SPORT L. 17 (2002).
10. See Children’s Sports Athletic Equipment Safety Act, S. 601, 112th Cong. § 2(11)
(2011) (“In any given season, 20% of all high school football players sustain brain injuries.”);
see also Guidelines for Pediatricians: Head Injuries, Am. Acad. of Pediatrics, Feb. 2000 (estimating
that 20% of high school football players and 40% of college players will sustain a head injury
during their careers).
11. CSAE Act, S. 601 § 2(9).
12. See Alan Schwarz, As Concussions Rise, Scant Oversight for Football Helmet Safety, N.Y.
TIMES, Oct. 20, 2010, at A1 [hereinafter Schwarz, Scant Oversight], (assessing issues
surrounding the lack of oversight of football helmet development, testing, and marketing,
and specifically addressing concerns with the NOCSAE’s outdated testing standards and
policies).
13. See About NOCSAE: History and Purpose, NAT’L OPERATING COMM. ON STANDARDS
FOR ATHLETIC EQUIP., http://www.nocsae.org/about/history.html (last visited Feb. 8,
2012) (explaining the history and purpose behind the creation of NOCSAE in response to
increasing concerns about injuries sustained in the course of participating in football).
14. Id.
15. Id.
16. See Alan Schwarz, Two Bills Put Focus on Equipment Safety for Children, N.Y. TIMES,
Mar. 15, 2011 [hereinafter Schwarz, Equipment Safety for Children],
270
ADMINISTRATIVE LAW REVIEW
[64:1
fact that the technology of the materials used in the design and production
of football helmets has significantly advanced.17 In addition, NOCSAE
does not conduct independent testing or market surveillance to ensure
compliance with its safety standards for either new or potentially defective
reconditioned helmets.18
In response to the combination of the growing issue of concussions
among school-aged athletes and the lack of clear standards and guidance
from NOCSAE, Senator Tom Udall of New Mexico proposed the
Children’s Sports Athletic Equipment Safety Act in March 2011 (CSAE
Act).19 Senator Udall’s bill, which has been referred to the Senate
Committee on Commerce, Science, and Transportation as of March
2011,20 seeks to implement more rigid standards for manufacturing,
independent third-party testing, regulations on advertising, and distribution
http://www.nytimes.com/2011/03/16/sports/football/16helmets.html?_r=2 (highlighting
two recently drafted pieces of legislation that focus on federal regulation for the treatment of
youth-sport concussions and increasing government oversight within the football helmet
industry in an effort to increase the industry’s focus on developing equipment designed to
prevent or reduce the risk of concussions).
17. See Newer Football Helmet Design May Reduce Incidence of Concussions in High School Players,
DAILY
(Jan.
14,
2006),
Shows
University
of
Pittsburgh
Study,
SCI.
http://www.sciencedaily.com/releases/2006/01/060114151826.htm (discussing a recent
study released by the University of Pittsburgh Medical Center’s Sports Medicine Concussion
Program, which shows the Riddell Revolution football helmet may reduce the incidence of
concussions in high school players when compared to standard football helmets). But see
Marie-France Wilson, Young Athletes at Risk: Preventing and Managing Consequences of Sports
Concussions in Young Athletes and the Related Legal Issues, 21 MARQ. SPORTS L. REV. 241, 249–50
(2010) (pointing out that despite the common belief that improved equipment aids in the
reduction of athletics-related concussions, some studies have demonstrated that improved
equipment for other parts of the body, such as the elbows or shoulders, produces a perverse
result by increasing head injuries). While it is a valid point that improved technology can
cause some athletes to be reckless in using their equipment to inflict greater force on their
opponents, such studies do not address the main issue of this Comment, which is the
development of helmets that properly protect athletes from the complexities of forces
causing concussions.
18. See Children’s Sports Athletic Equipment Safety (CSAE) Act, S. 601, 112th Cong.
§ 2(24) (2011) (addressing the legislative findings that led to the Children’s Sports Athletic
Equipment Safety Act proposal); see also Schwarz, Scant Oversight, supra note 12 (asserting that
NOCSAE does not have a role in ensuring that new helmets or reconditioned helmets meet
the limited standards that NOCSAE establishes).
19. CSAE Act, S. 601; The Constitutional Authority Statement that accompanies the
House version of the Act, H.R. 1127, 112th Cong. (2011), cites Article I, Section 8, Clause 3
of the U.S. Constitution as the vehicle behind which Congress can enact the reforms
proposed by the CSAE Act. See 157 CONG. REC. H1907 (daily ed. Mar. 16, 2011)
(statement of Rep. Pascrell).
20. Bill Summary & Status, 112th Cong. (2011–2012): S. 601, LIBR. OF CONG.,
http://thomas.loc.gov/cgi-bin/bdquery/z?d112:s.601: (last visited Feb. 8, 2012).
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
271
of football helmets used by school-aged children.21 The bill has three
central components. First, it instructs the Consumer Product Safety
Commission (CPSC) to initiate rulemaking proceedings to develop a
consumer product safety rule with respect to new and reconditioned youth
football helmets.22 Second, it mandates third-party testing of youth football
helmets, which would be bound by the third-party testing requirements of
§ 2063(a)(2)23 of the Consumer Product Safety Act.24 And third, it instructs
the Federal Trade Commission (FTC) under § 57(a)25 of the Federal Trade
Commission Act to regulate the manner in which helmet manufactures
advertise the safety specifications of their products,26 as well as empowering
state attorney generals to bring actions on behalf of citizens to obtain
appropriate injunctive relief or to pursue any appropriate criminal charges
against manufacturers or distributors for false or misleading claims with
respect to the safety benefits of their products.27
This Comment argues that NOCSAE’s current standards of testing are
ineffective and that its lack of market oversight has allowed inferior
products to thrive, endangering the welfare of millions of student athletes.28
Additionally, this Comment maintains that the proposed CSAE Act is the
best mechanism to create a greater atmosphere of accountability and
compliance among equipment manufacturers and school administrative
personnel by developing more stringent testing and safety standards as well
as stricter guidelines in the advertising and marketing of the equipment’s
safety capabilities.29 Part I provides background on NOCSAE, including its
21. See generally CSAE Act, S. 601 (providing new guidance in the development, testing,
and advertising of the youth football helmet industry by drawing in the powers of the
Consumer Product Safety Commission (CPSC) and Federal Trade Commission (FTC)). But
see Laurence M. Vance, Strong Helmets and the Stronger Hand of Government, FUTURE OF
FREEDOM FOUND. (May 31, 2011), http://www.fff.org/comment/com1105x.asp
(condemning possible federal government involvement in the regulation of sporting
equipment and arguing that such proposed legislation centralizes more power in the federal
government when such issues should be regulated by state governments, if at all).
22. CSAE Act, S. 601 § 3(a)–(c).
23. Consumer Product Safety Act, 15 U.S.C. § 2063 (Supp. IV 2010).
24. CSAE Act, S. 601 § 4(a), (c).
25. Federal Trade Commission Act, 15 U.S.C § 57a (2006).
26. CSAE Act, S. 601 § 5(a)–(b).
27. Id. § 5(c).
28. See Gregg Easterbrook, Virginia Tech Helmet Research Crucial, ESPN (July 19, 2011),
http://sports.espn.go.com/espn/page2/story?page=easterbrook-110719_virginia_tech_hel
met_study&sportCat=nfl (citing the recently released Virginia Polytechnic Institute and
State University (Virginia Tech) study, which showed the second-lowest rated helmet was
the most commonly used helmet in the NFL and was prominent in both collegiate and high
school programs across the country).
29. See Schwarz, Scant Oversight, supra note 12 (noting how limited oversight by
272
ADMINISTRATIVE LAW REVIEW
[64:1
organizational structure, an overview of its policies, and its relationship to
the procedures of the National Athletic Equipment Reconditioners
Association (NAERA). Part II introduces the CSAE Act, explaining the
context in which the bill is being proposed and the rationale behind shifting
the power of youth football helmet safety regulation from NOCSAE to the
FTC and CPSC.
Part III compares NOCSAE’s current testing standards to the
regulations mandated by the CSAE Act and argues that given NOCSAE’s
lack of leadership on the issues of product testing, use of reconditioned
helmets, and product advertising, the CSAE Act provides the most effective
environment for safer football helmets to be created, tested, and regulated.
Part III will also argue that the regulations mandated by the CSAE Act
must be supplemented with additional provisions including the creation of a
uniform rating system for all helmets, similar to the system recently outlined
by scientists at Virginia Polytechnic Institute and State University (Virginia
Tech).30 This Comment concludes that the CSAE Act is the most efficient
vehicle currently available as it has the means and mechanisms to properly
structure and guide youth football helmet development and regulation in
the future. Given that the current voluntary system is inadequate for
regulating youth football helmet standards, the CSAE Act should be
enacted, employing federal regulation as the primary means to reform the
industry.
NOCSAE has created a lack of leadership in the current testing of new and used football
helmets, as well as a lack of vision in how to properly integrate new helmet technologies to
reduce the risk of concussions for school-aged players); see also Alan Schwarz, Senator Calls for
Helmet Safety Investigation, N.Y. TIMES, Jan. 3, 2011 [hereinafter Schawrz, Helmet Safety
Investigation], http://www.nytimes.com/2011/01/04/sports/football/04helmets.html (citing
concerns that limited testing standards, which are overseen by NOCSAE, can covey a level
of concussion protection for school-aged athletes that the headgear may not provide).
30. See Lynn Nystrom, Virginia Tech Announces Football Helmet Ratings for Reducing Concussion
Risk, VA. TECH. COLL. OF ENG’G (May 10, 2011), http://www.eng.vt.edu/news/virginiatech-announces-football-helmet-ratings-reducing-concussion-risk (announcing the creation
of a five-star rating system for adult football helmets, which quantifies head impact exposure
and concussion risk of helmets currently on the market or in use by professional or collegiate
athletes); see also National Impact Database: Adult Football Helmet Ratings—May 2011, VA. TECH.
SCH. OF BIOMED. ENG’G & SCI., http://www.sbes.vt.edu/nid.php (last visited Feb. 8, 2012)
(delineating the most recent results of the Virginia Tech study and categorizing the tested
helmets by their given test score).
2012]
I.
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
273
BACKGROUND: THE DEVELOPMENT OF VOLUNTEER INDUSTRY
OVERSIGHT
A. The Creation of NOCSAE and Early Testing Procedures
Since its inception in 1969, NOCSAE has been the central nonprofit
organization in the regulation of athletic equipment.31 NOCSAE was
created through the efforts of several athletic and manufacturer
associations32 in response to a growing need for performance test standards
for football helmets.33 In response to the thirty-six football-related fatalities
that occurred during 1968, NOCSAE’s initial research efforts focused on
minimizing football-related injuries.34 Despite what NOCSAE determined
was an upward trending problem, it was also initially concerned that
improved equipment might lead to harder hits to the head because players
might be inclined to use their helmets as weapons.35 Given that in 1968
head injury fatalities were attributed to only two out of every 100,000
athletes, NOCSAE feared that radical changes in the materials used to
manufacture the equipment could potentially inflate the number of
fatalities by causing an increase in the number of head, neck, or spine
injuries.36 However, despite these concerns, NOCSAE developed testing
systems in 1970 with the goal of establishing a uniform football helmet
standard.37
By 1973, NOCSAE had established a uniform testing standard.38 While
NOCSAE developed the testing standard, to this date it has not performed
31. About NOCSAE, supra note 13.
32. Michael Oliver, Exec. Dir. & Gen. Counsel of NOCSAE, Presentation Before
http://www.childrensmercy.org/
CMH Coaches Conference 3 (July 23, 2011),
sportsmedicine/Resources/Files/2011%20Coaches%20Conference/Helmet%20Fitting%2
0&%20Standards%20for%20Athletic%20Equipment%20-%20Michael%20Oliver.pdf.
33. Frequently Asked Questions and Answers, NAT’L OPERATING COMM. ON STANDARDS
FOR ATHLETIC EQUIP., http://www.nocsae.org/faq/index.html (last visited Feb. 8, 2012).
34. About NOCSAE, supra note 13.
35. Id.; see also Reed Albergotti & Shirley S. Wang, Is It Time to Retire the Football Helmet?,
WALL ST. J., Nov. 11, 2009, at 12 (addressing the debate over whether the use of more
advanced football helmets would actually lead to increased injuries as players feel more
secure and willing to lead into a tackle with their heads).
36. About NOCSAE, supra note 13.
37. Id.; see also Brian James Mills, Note, Football Helmets and Products Liability, 8 SPORTS
LAW. J. 153, 155 (2001) (indicating that in response to the surge in popularity of football in
the 1960s and the increase in serious sports related injuries, the American College Health
Association, the National Collegiate Athletic Association (NCAA), the National Federation
of State High Schools Association (NFHS), and the Sporting Goods Manufacturers
Association combined their efforts to form NOCSAE with the initial purpose of researching
the football helmet).
38. About NOCSAE, supra note 13.
274
ADMINISTRATIVE LAW REVIEW
[64:1
any of the actual testing; rather, NOCSAE permits the manufacturers to
test their own newly constructed helmets, while NAERA tests used helmets
that need to be recertified.39 By 1985 there was a decrease in the number
of football-related fatalities resulting from structural head injuries.40 The
regression of football-related fatalities resulting from structural head injuries
has continued as of the 2006 season.41 However, there are no statistics on
how NOCSAE’s testing standards have affected the rate of concussions
sustained by athletes. The essential difference between concussions and the
aforementioned head injuries is that impairment from a concussion is
characterized as causing functional impairment, as opposed to structural
damage, which would be actual physical damage to the brain or skull.42
It is evident from NOCSAE’s history that the organization’s central
purpose in creating a helmet standard was to reduce the risk of footballrelated fatalities resulting from structural damage to the head, and not the
severe functional impairments that commonly accompany a concussion.43
While the reduction of such structural injuries has greatly benefited
professional and amateur athletics, NOCSAE’s standards have not
progressed or evolved since its inception and have failed to adequately
address the complicated biomechanical forces that cause concussions.44
As studies continue to highlight the potential long-term and debilitating
effects of concussions,45 NOCSAE’s policies must be revised and updated to
39. See Mills, supra note 37, at 156–57 (outlining that under the testing procedures
established by NOCSAE, not all helmets are tested, but only a significant sample of a
particular model and size before the helmet is placed on the open market); see also Frequently
Asked Questions and Answers, supra note 33 (indicating that NOCSAE’s standard does not
“require[ ] any helmet to be recertified on any regular basis”).
40. See About NOCSAE, supra note 13 (citing to an 88% percent drop in the occurrence
of serious head injuries from the 1964–1968 era to the 2002–2006 era).
41. Id.
42. See Wilson, supra note 17, at 244 (describing the biomechanical forces causing a
concussion and the potential adverse side effects of multiple concussions as they differ from
an injury such as a skull fracture). Aside from differences between structural and functional
neurological impairment, it is worth mentioning that that concussions are not only caused
by focused impact on the head but can also result from force delivered to any part of the
body that causes “impulsive force to be transmitted to the head.” Id.
43. See About NOCSAE, supra note 13 (voicing concern over head injury fatalities but
remaining silent on any mention of concussions); see also William A. Staar, Head Cases: The
Coming Wave of Concussion Litigation, FOR THE DEFENSE, Aug. 2010, at 53 (arguing that the
hard-shell polycarbonate helmets developed over fifty years ago were designed to eliminate
deadly head injuries and not to deal with the complexities of forces that cause concussions).
44. See Schwarz, Scant Oversight, supra note 12 (asserting that despite rising concussion
rates among youth football participants and an increasing understanding of their causes and
short- and long-term effects of concussions on cognitive functions, NOCSAE’s standard has
not adapted to new helmet technologies or medical developments).
45. See generally Michael W. Collins et al., Cumulative Effects of Concussions in High School
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
275
incorporate newer findings and safety standards to afford the highest level
of protection possible for athletes, specifically school-aged athletes. Studies
have demonstrated that children between the ages of six and fourteen are
more prone to sustaining head injuries than any other group.46 The
accuracy of those studies is difficult to ascertain because young athletes
have a tendency to underreport or conceal the symptoms of concussions to
return to play quicker.47 Given the difficulty in diagnosing and reporting
concussions sustained by school-aged athletes, the need for safer helmets
that are properly tested for optimal protection is even more crucial. While
there is currently no such thing as a concussion-proof helmet,48 the
importance of continuing research in an effort to discover materials or
equipment which reduce the risk and effects of concussions is critical.
While such research is pending, properly screening and reconditioning
previously used helmets is vital to the safety of school-aged athletes.
B. The Role of the National Athletic Equipment Reconditioners Association
While NOCSAE is the volunteer governing body that developed testing
standards for football helmets, NAERA is an association of athletic
equipment manufacturers licensed by NOCASE to regulate the
reconditioning and recertification process for used athletic equipment.49
Members of NAERA are licensed by NOCSAE to recondition and recertify
football helmets, lacrosse helmets, softball/baseball helmets, and face
guards.50 While NAERA is an independent organization from NOCSAE,
NAERA is required to use NOCSAE’s testing standards when
Athletes, 51 NEUROSURGERY 1175 (2002) (contending that athletes with prior concussions are
more likely to experience repeated on-field loss of consciousness, amnesia, and confusion
following a repeated concussion); see also Rosemarie Scolaro Moser et al., Prolonged Effects of
Concussion in High School Athletes, 57 NEUROSURGERY 300, 302–03 (2005) (reporting findings
that athletes who suffered from concussions performed significantly worse on concentration
and attention tests compared to athletes without a history of concussions).
46. See Wilson, supra note 17, at 246–47 (noting a recent study concluding that between
2001 and 2005, half of the 502,000 emergency room visits for concussions sustained by
children between the ages of eight and nineteen were sports-related).
47. See id. at 247 (citing a study of high school football players that demonstrated
unreported concussions influence the accuracy of findings on the total rate of concussions
sustained).
48. See id. at 249–50 (adding that for certain sports, such as rugby, there is no sportspecific helmet shown to reduce the rate of concussions).
49. What Is NAERA?, NAT’L ATHLETIC EQUIP. RECONDITIONING ASS’N,
http://www.naera.net/what.html (last visited Feb. 8, 2012) (providing a background on the
organization and the recertification process).
50. Id.
276
ADMINISTRATIVE LAW REVIEW
[64:1
reconditioning and recertifying athletic equipment.51 Members of NAERA
must follow NOCSAE’s standards to maintain their NOCSAE
recertification licenses.52 Recertification of a used helmet is a multistep
process that includes cleaning, sanitizing, replacing worn parts, a shell
inspection, and NOCSAE-approved testing.53 Currently, there are twentythree NAERA members that perform all the reconditioning and
recertification of athletic equipment for schools and leagues across the
country.54 NAERA’s reliance on NOCSAE’s testing standards highlights
the weight those within the football helmet industry give to NOCSAE as
the volunteer governing body.
C. Current NOCSAE Testing Regulations
While NOCSAE led the movement to develop and test safer football
headgear, the organization’s testing standards have not significantly
changed since 1973.55 Though NOCSAE continues to oversee testing
standards, the equipment manufacturers perform helmet testing for their
own newly manufactured products, while NAERA recertification facilities
test used helmets—guided by NOCSAE testing standards—before allowing
the helmet to be used again by an athlete.56 As currently implemented
under NOCSAE’s standard, the football helmet is placed on a synthetic
head model that is filled with glycerin and fitted with various measuring
instruments.57 The head model fitted with the helmet is then dropped
sixteen times onto a polymer anvil with two of the drops from a height of
sixty inches onto six different locations of the helmet at varying
temperatures determined by NOCSAE to simulate different potential game
temperatures.58 After each drop a “Severity Index,” which measures the
severity of the impact absorbed by the head model at the moment of
impact, is determined.59 Helmets are graded on a pass–fail basis, and the
51. See Frequently Asked Questions and Answers, supra note 33 (describing the requirements
for the recertification of football helmets); see also What Is NAERA?, supra note 49 (contending
that the NOCSAE standards are industry-accepted by institutions such as the NCAA and
the NFL).
52. See What Is NAERA?, supra note 49 (detailing how recertification of football helmets
became a large part of the organization’s work).
53. Id.
RECONDITIONING ASS’N,
54. NAERA Member List, NAT’L ATHLETIC EQUIP.
http://www.naera.net/members_all.html (last visited Feb. 8, 2012).
55. Schwarz, Scant Oversight, supra note 12.
56. See Mills, supra note 37, at 155–57 (discussing the standard NOCSAE and NAERA
testing procedures).
57. Id. at 155.
58. Id. at 155–56.
59. Id. at 156.
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
277
helmets that pass are those meeting an acceptable Severity Index.60 Once a
statistically sufficient sample of helmets pass the drop test, each helmet must
be stamped with a clearly legible statement that effectively communicates to
the purchaser and user the following information:
Warning. No helmet can prevent all head or any neck injuries a player
might receive while participating in football. Do not use this helmet to butt,
ram or spear an opposing player. This is in violation of the football rules and
such use can result in severe head or neck injuries, paralysis or death to you
and possible injury to your opponent.61
The NOCSAE standard states that this language must be permanently
affixed to the exterior of the shell of the helmet and be easily read without
removal of a decal tape or other temporary material or permanent part of
the helmet.62 In addition, a permanent and exact replica of NOCSAE’s
seal that states, “MANUFACTURER CERTIFIES: MEETS NOCSAE
STANDARD” must appear legibly on the exterior of the shell for the
helmet to be placed on the market for sale.63 It is important to note that
NOCSAE’s helmet standard is a voluntary testing standard which a
league’s governing body is free to adopt.64 Currently, both the NCAA and
the National Federation of State High School Associations (NFHS) abide
by NOCSAE standards and require that student athletes use equipment
meeting NOCSAE specifications.65
60. See NAT’L OPERATING COMM. ON STANDARDS FOR ATHLETIC EQUIP., NOCSAE
Doc (ND)002-11m11a, STANDARD PERFORMANCE SPECIFICATION FOR NEWLY
MANUFACTURED FOOTBALL HELMETS (2011), http://nocsae.org/standards/pdfs/
Standards%20'11/ND002-11m11a%20-%20Mfr'd%20FB%20Helmets%20Standard%20
Performance%20.pdf; see also How are Football Helmets Tested?, NAT’L ATHLETIC EQUIP.
RECONDITIONING ASS’N, http://www.naera.net/what_tested.html (last visited Feb. 8, 2012)
(defining the Severity Index as “a scientifically accepted measurement of human injury
tolerance”).
61. NAT’L OPERATING COMM. ON STANDARDS FOR ATHLETIC EQUIP., supra note 60,
at 3.
62. Id.
63. Id.; see also Mills, supra note 37, at 157 (stating that when NOCSAE’s seal is affixed
to the helmet it means that the helmet meets or exceeds the gold standard for head
protection, and this level of certification is required by some of the most prominent athletic
organizations in the country, including the NCAA, NFHS, and the U.S. military).
64. Frequently Asked Questions and Answers, supra note 33.
65. See generally NAT’L FED’N OF STATE HIGH SCH. ASS’NS, NFHS RULES CHANGES
AFFECTING
RISK
(1982–2011),
available
at
http://www.nfhs.org/WorkArea/
DownloadAsset.aspx?id=5760 (last visited Feb. 8, 2012) (outlining several sports in which
NOCSAE certified equipment is now required); Jeff Miller, The College Football Helmet Has
Come a Long Way, NAT’L COLLEGE ATHLETIC ASS’N (Sept. 23, 2010),
http://www.ncaa.org/wps/wcm/connect/public/NCAA/Resources/
Latest+News/2010+news+stories/September+latest+news/The+college+football+helmet
278
ADMINISTRATIVE LAW REVIEW
[64:1
While NOCSAE does not require helmets to be recertified on a regular
basis, NOCSAE does recommend organizations adopt some type of helmet
reconditioning program.66 Despite this recommendation, NOCSAE also
makes clear that NOCSAE’s standard does not mandate regular
reconditioning and recertification of helmets, essentially placing the onus
on the helmet manufacturer to determine what the proper timetable is for
helmet recertification and reconditioning.67 Examining the pre-marketing
testing for new helmets and reconditioning process for used helmets, two
clear concerns arise: First, an overreliance on NOCSAE’s initial and now
outdated testing standard by all members of the football helmet industry;68
and second, despite NOCSAE’s position of oversight, a clear reluctance or
inability on the part of NOCSAE to properly regulate the industry.69
D. NOCSAE’s Current Stance on the Emerging Issues of Sports-Related Concussions
In addition to equipment safety research and product testing oversight,
NOCSAE also acts as a grant-giving foundation, supplying funds to those
that seek to advance the science of sports medicine.70 With the January
2011 creation of the Scientific Advisory Committee—charged with
directing research efforts relating to concussions—NOCSAE has taken a
more active role in promoting concussion research.71 However, as a
volunteer trade association, NOCSAE is comprised of a collection of
+has+come+a+long+way (noting that in 1978 the NCAA adopted the NOCSAE standard
for helmets for the NCAA’s member schools). Notably, the NFL does not mandate that its
players wear NOCSAE-approved helmets, and many teams are secretive of the helmet
models their athletes wear. See Easterbrook, supra note 28.
66. Frequently Asked Questions and Answers, supra note 33.
67. Id. Specifically, NOCSAE’s website states, “A manufacturer is also free to limit the
number of times its helmet may be reconditioned, or it may establish a useful life beyond
which it will not allow reconditioning.” Id.
68. See generally Schwarz, Scant Oversight, supra note 12; What Is NAERA?, supra note 49.
69. See generally Frequently Asked Questions and Answers, supra note 33.
70. See Press Release, Nat’l Operating Comm. on Standards for Athletic Equip.,
NOCSAE Approves More than $600,000 to Fund Concussion Research; Creates Scientific
Advisory Committee to Direct Concussion Research (Jan. 22, 2011),
http://www.nocsae.org/MediaKit/2011/NOCSAE%20Grant%20Approval%20News%20
Release%20FINAL%20%2001%2022%2011.pdf (announcing that NOCSAE awarded
nearly $610,000 to advance research in sports medicine related to concussions, as well as
announce the formation of a Scientific Advisory Committee to guide research efforts related
to concussions); see also NOCSAE Approves $1.1 Million to Fund Concussion-Related Research, PR
NEWSWIRE (Jun. 18, 2011), http://www.prnewswire.com/news-releases/nocsae-approves11-million-to-fund-concussion-related-research-124127914.html
(announcing
that
NOCSAE “awarded $1.1 million in research grants to advance the science of sports
medicine,” specifically concussion-related research).
71. Press Release, NOCSAE, supra note 70.
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
279
representatives from a number of groups interested in the business of
athletic equipment, including equipment manufacturers, reconditioners,
athletic trainers, coaches, equipment managers, sports medicine specialists,
and consumer organizations.72 There is justifiable concern that because the
majority of NOCSAE’s funding is provided by organizations that
NOCSAE should be overseeing during the helmet testing process,
NOCSAE lacks the requisite independence to make changes that could
alter the landscape of the helmet manufacturing industry for the better.73
II. INCREASED FOCUS ON THE RISK OF CONCUSSIONS IN SCHOOL-AGED
ATHLETES
A. Regulatory Responses to Increasing Concerns About Concussions
As the causes and dangerous long-term effects of concussions continue to
be studied and better understood in the medical community, public
pressure has caused the NFL to develop stricter guidelines for evaluating
athletes thought to be suffering from the effects of a concussion.74 While
professional sports leagues have gradually altered their stances on how best
to regulate the treatment of their athletes, only a few states have regulated
the evaluation and treatment of concussions suffered by amateur athletes.75
Only recently has the NFHS weighed in on what it deems to be an
adequate approach to regulating the treatment of concussions for student
72. See Frequently Asked Questions and Answers, supra note 33.
73. See NOCSAE Overview, NAT’L OPERATING COMM. ON STANDARDS FOR ATHLETIC
EQUIP., http://www.nocsae.org/MediaKit/2011/NOCSAE%20Overview%201-14-11.pdf
(last visited Feb. 8, 2012) (stating that NOCSAE is primarily funded through licensing fees
that it charges to equipment manufactures that want to certify their equipment with the
NOCSAE seal); see also Frequently Asked Questions and Answers, supra note 33 (noting that the
NOCSAE helmet standard is a voluntary standard that is adopted by a sport regulatory
body on its own accord).
74. See Protecting Student Athletes from Concussions: Hearing on H.R. 6172 Before the Comm. on
Educ. & Labor, 111th Cong. 22–24 (2010) (statement of Sean Morey, Executive Board
Member, NFL Players Association) (highlighting the changes that the commissioner of the
NFL implemented to protect players in light of increasing transparency regarding the
detrimental effects of repeated concussions to players).
75. See States Consider Youth Concussion Laws, ESPN, http://sports.espn.go.com/espn/
news/story?id=4865622 (last updated Jan. 28, 2010) (highlighting the six states that began to
take measures to adopt state laws governing when athletes who suffered concussions can
return to play); see also Alan Schwarz, States Taking the Lead Addressing Concussions, N.Y. TIMES,
Jan. 31, 2010 [hereinafter Schwarz, States Taking the Lead], http://www.nytimes.com/
2010/01/31/sports/31concussions.html (discussing Washington state law which mandates
that athletes under eighteen who show symptoms of concussions must obtain the written
approval of a licensed healthcare provider prior to returning to play).
280
ADMINISTRATIVE LAW REVIEW
[64:1
athletes.76
While individual state and athletic regulatory bodies continue to
generate approaches to dealing with the occurrence and effects of
concussions,77 representatives from the federal government have just
recently entered the concussion debate.
In 2010, the House of
Representatives proposed and passed the Concussion Treatment and Care
Tools Act of 2010 (ConTACT Act).78 The ConTACT Act directs the
Department of Health and Human Services to establish concussion
management guidelines, focusing primarily on the prevention and
management of concussions in school-aged children.79 Studies have
demonstrated that, given the developing nature of a school-aged child’s
brain, the risk of sustaining a concussion and the possibility of more severe
damage when compared to a fully developed adult is significantly higher.80
While the aforementioned studies have forced individual states to examine
their concussion management policies for student athletes, or in many cases
create such policies,81 few resources have been put toward a nationwide
76. See Erika A. Diehl, Note, What’s All the Headache?: Reform Needed to Cope with the Effects
of Concussions in Football, 23 J.L. & HEALTH 83, 107–08 (2010) (contending the NFHS should
recommend a concussion-handling policy which requires an independent healthcare
professional evaluate the athlete before the athlete can return to practice for games).
77. See Schwarz, States Taking the Lead, supra note 75; see also Diehl, supra note 76, at 107–
08.
78. Concussion Treatment and Care Tools Act of 2010, H.R. 1347, 111th Cong.
79. See James Wagner, House Approves Concussion Treatment and Care Tools (ConTACT) Act,
WASH. POST, Sept. 30, 2010, http://www.washingtonpost.com/wp-dyn/content/
article/2010/09/30/AR2010093003378.html (discussing the mechanics of the proposed
legislation, a Department of Health and Human Services conference within two years of
medical and athletic experts determining concussion management guidelines).
80. See Sports Related Concussions: Background and Significance, UNIV. OF PITTSBURGH MED.
CTR. BRAIN TRAUMA RESEARCH CTR., http://www.neurosurgery.pitt.edu/trauma/
concussion.html (last visited Feb. 8, 2012) (finding that while there are no reported studies as
to the effects of concussion in high school athletes, previous age-related studies demonstrate
significant post-concussion differences in adolescent versus adult brains).
81. See, e.g., VA. CODE ANN. § 22.1-271.5(B) (West 2010) (mandating local school
divisions to “develop policies and procedures regarding the identification and handling of
suspected concussions in student-athletes”); TEX. EDUC. CODE ANN. § 38.153(b) (West 2011)
(requiring appointed concussion oversight teams for school districts to establish return-toplay protocols for student athletes suffering from the effects of concussions); MD. CODE
ANN., EDUC. § 7-443(b)(1) (LexisNexis 2010 & 2011 Supp.) (outlining an awareness program
providing school officials and parents with information on risks of concussions, criteria for
removing injured players, reporting injuries, and academic accommodations for students
diagnosed with concussions). See generally Concussion Information & Competition Policies by State,
ESPN RISE (Aug. 2010), http://rise.espn.go.com/all-sports/articles/2010/08/31Concussions-from-magazine.aspx (follow the “state-by-state” hyperlink) (surveying the
general policies regarding concussion diagnoses and treatment for student athletes in all fifty
states).
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
281
effort to develop preventative and protective measures.82 While the
ConTACT Act is the first federal program that proposes to mandate
unified concussion injury guidelines for children ages five to eighteen, the
CSAE Act is the first to address directly the current concerns with the
manufacturing, reconditioning, and advertising of football helmets and seek
to bolster a loosely regulated area that affects millions of families. Despite
the promising changes that the CSAE Act offers, it has failed to make it all
the way through Congress.83
B. The Children’s Sports Athletic Equipment Safety Act
Senator Tom Udall introduced the CSAE Act to the 112th Congress on
March 16, 2011.84 Prior to drafting the proposed legislation, Senator Udall
recognized what he deemed to be a severe problem in American youth
sports. Senator Udall asked the CPSC to investigate the adequacy of
football helmet safety standards and argued that the current voluntary
industry standards do not properly address the larger issue of preventing
concussions.85 According to Senator Udall, the CPSC has a duty to ensure
that football helmets meet safety standards that “address concussion
hazards and reflect the state of the art in helmet technology.”86 In response
to Senator Udall’s request, the CPSC told a Senate Commerce
Subcommittee that it would start monitoring the football helmet industry
and NOCSAE’s practices.87 In addition, Senator Udall wrote a letter to the
FTC requesting the agency investigate “misleading safety claims and
deceptive practices” by helmet manufacturers and reconditioners.88 Much
82. But see Football Helmets; Denial of Petition, 45 Fed. Reg. 63,326, 63,327 (Sept. 24,
1980) (denying a 1980 petition requesting that the CPSC issue a consumer product safety
standard for football helmets to reduce the risk of head, neck, and spinal injuries).
83. See Bill Summary & Status, supra note 20. The last action on the bill was referral to
the Committee on Commerce, Science, and Transportation on March 26, 2011.
84. Id. The House version of the bill, H.R. 1127, 112th Cong. (2011), sponsored by
Representative Bill Pascrell of New Jersey, has been referred to the House Subcommittee on
Commerce, Manufacturing, and Trade. Bill Summary & Status, 112th Cong. (2011–2012):
H.R. 1127, LIBR. OF CONG., http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR01127:.
85. See Alan Schwarz, Senator Seeks Federal Investigation of Football Helmet Standards, N.Y.
TIMES, Nov. 30, 2010 [hereinafter Schwarz, Federal Investigation], http://www.nytimes.com/
2010/12/01/sports/football/01helmets.html (asserting that Senator Udall’s disapproval of
the current football helmet standards stems from the industry’s inability to update modern
testing standards given the improvement in football helmet safety technology).
86. Id. (quoting Sen. Tom Udall).
87. Alan Schwarz, Oversight Group Vows to Pursue Updates to Football Helmet Standards, N.Y.
TIMES, Jan. 23, 2011 [hereinafter Schwarz, Updates to Standards], http://www.nytimes.com/
2011/01/03/sports/football/23helmet.html.
88. See Schwarz, Helmet Safety Investigation, supra note 29 (citing Senator Udall’s letter,
282
ADMINISTRATIVE LAW REVIEW
[64:1
like the CPSC, the FTC acknowledged the seriousness of Senator Udall’s
claims and declared it would investigate the helmet manufacturers’ claims
that certain football helmet models can help reduce concussions.89 Given
Senator Udall’s comments, it is evident he viewed federal regulation of the
football helmet industry as a real possibility. Many of Senator Udall’s
concerns stemmed from an October 2010 report from the New York Times
that depicted problems in the reconditioning of used helmets worn by
nearly 1.4 million American teenagers playing high school football,90 as well
as concerns that the self-regulating industry has no internal repercussions
for misrepresentation of the safety of its products.91
The CSAE Act has several different components each addressing
different concerns regarding the testing standards governed by NOCSAE.
Under the powers of the Consumer Product Safety Act92 and the Federal
Trade Commission Act,93 the CSAE Act allows the CPSC and the FTC to
take over regulation of the football helmet industry that NOCSAE
previously controlled. The CSAE Act has three sections, each addressing a
separate concern within the football helmet industry.
1. Section 3: Football Helmet Safety Standards
Section 3, entitled “Football Helmet Safety Standards,” empowers the
CPSC to evaluate NOCSAE’s voluntary standards for testing new and
which targets the helmet manufacturer Riddell for its claim that its latest football helmet
models decrease concussion risk by thirty-one percent, conveying “a level of concussionrelated protection that the headgear is not shown to provide”).
89. See Frederic J. Frommer, FTC Looking into Football Helmet Claims, BUS. J., Jan. 14,
2011,
http://www.thebusinessjournal.com/the-business-journal-national-news/13national/7956-ftc-looking-into-football-helmet-claims (quoting FTC Chairman Jon
Leibowitz as stating, “Given the dangers that concussions pose for young athletes engaged in
contact sports, it is essential that advertising for products claiming to reduce the risk of this
injury be truthful and substantiated.”).
90. See Schwarz, Scant Oversight, supra note 12 (evaluating concerns within the football
helmet industry, including lack of independent oversight, outdated testing standards,
inadequate safety and testing procedures, and use of misleading safety statistics by helmet
manufacturing companies).
91. Id.; see also Schwarz, Updates to Standards, supra note 87 (pointing to the issue that
NOCSAE is primarily financed by the sporting goods industry, whose products NOCSAE
supposedly oversees). But cf. Riddell, Inc. v. Schutt Sports, Inc., 724 F. Supp. 2d 963, 980
(W.D. Wis. 2010) (rejecting Schutt’s claim that the study showing Riddell’s Revolution
helmet reduces the risk of concussions was sufficiently unreliable to constitute false
advertisement, although the court did contend that, at most, Riddell’s marketing campaign
of the Revolution helmet was misleading or deceptive as the advertisements did not
differentiate between the adult and youth helmets).
92. Consumer Product Safety Act, 15 U.S.C. § 2051 (2006).
93. Federal Trade Commission Act, 15 U.S.C § 41 (2006).
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
283
reconditioned helmets nine months after the CSAE Act is passed.94
Particularly, Section 3 seeks to determine if the voluntary standards foster
an atmosphere of compliance that will likely result in the elimination or
adequate reduction of the risk of injury caused by the use of football
helmets.95 In addition, these standards are to be maintained by a
standards-setting organization that meets the procedural requirements of
American National Standards Institute.96 If the CPSC determines that
NOCSAE’s standards are not in compliance, Section 3 empowers the
CPSC to initiate a rulemaking proceeding for the development of a
consumer product safety rule that establishes: (1) a standard for youth
football helmets that takes into account the different physiological
characteristics of children compared to adults; (2) a standard for
reconditioned football helmets; (3) a standard for new football helmet
concussions resistance, particularly a standard that addresses what is
currently understood about concussion risks and possible prevention; (4) a
standard for warning labels; (5) a standard for a label for all new helmets
that states the helmet’s original date of manufacture and warns consumers
that a helmet’s ability to protect declines over time; and (6) a standard label
for reconditioned helmets that states the helmet’s last date of
reconditioning, its original date of manufacture, and a warning for
consumers that a helmet’s ability to protect declines over time despite
reconditioning.97 In addition, Section 3 mandates that the CPSC consult
with representatives from the athletic equipment industry to assess the
effectiveness of NOCSAE’s safety standards for youth helmets,
reconditioned helmets, and new football helmet concussion resistance.98
Finally, the CPSC is charged with periodically reviewing and revising the
standards they promulgate to ensure that the standards provide the most
recent and the highest level of football helmet safety possible.99
94. Children’s Sports Athletic Equipment Safety (CSAE) Act, S. 601, 112th Cong.
§ 3(a) (2011).
95. Id.
96. Id. § 3(a)(1). See generally AM. NAT’L STANDARDS INST., ANSI ESSENTIAL
REQUIREMENTS: DUE PROCESS REQUIREMENTS FOR AMERICAN NATIONAL STANDARDS
(2010), http://publicaa.ansi.org/essentialrequirementssites/apdl/Documents/ Standards%
20Activities/American%20National%20Standards/Procedures,%20Guides,%20and%20Fo
rms/2010%20ANSI%20Essential%20Requirements%20and%20Related/2010%20ANSI
%20Essential%20Requirements.pdf (outlining the requirements of the American National
Standards Institute, including transparency of information, voting procedures, coordination
of procedures, and consensus voting).
97. CSAE Act, S. 601, § 3(b)(1)–(6).
98. Id. § 3(c)(1).
99. Id. § 3(c)(2).
284
ADMINISTRATIVE LAW REVIEW
[64:1
2. Section 4: Application of Third-Party Testing and Certification Requirements to
Youth Football Helmets
While under the current NOCSAE regulations helmet manufacturers
test their own new helmets using NOCSAE’s standards, Section 4 of the
CSAE Act calls for third-party testing and certification as governed by
§ 14(a)(2) of the Consumer Product Safety Act.100 Section 4 applies the
standards set forth in the Consumer Product Safety Act to the testing of
youth football helmets, essentially making the testing of a youth football
helmet subject to the same regulations that apply to any children’s
product.101 Under Section 4, a testing laboratory that is accredited under
the International Organization for Standardization/International
Electrotechnical Commission will conduct third-party testing and
certification.102
3. Section 5: False or Misleading Claims with Respect to Athletic Sporting Activity
Goods
Section 5 of the CSAE Act seeks to curb concerns that football helmet
manufacturers present misleading statistics about the level of safety their
products afford to buyers.103 Section 5 makes it unlawful for anyone in the
course of selling any piece of athletic equipment intended or designed for
100. Id. § 4(a)–(c); see 15 U.S.C. § 2063(a)(2) (Supp. IV 2010) (“[B]efore importing for
consumption or warehousing or distributing in commerce any children’s product that is
subject to a children’s product safety rule, every manufacturer of such children’s
product . . . shall: (A) submit sufficient samples of the children’s product . . . to [an
accredited third party] to be tested for compliance with the children’s product safety rule;
and (B) based on such testing, issue a certificate that certifies that such children’s product
complies with the children’s product safety rule based on the assessment [of an accredited
third party] . . . .”).
101. See generally Consumer Product Safety Improvement Act of 2008, 15 U.S.C.
§§ 2051–2073 (Supp. IV 2010)) (outlining testing and labeling standards for children’s
products as well as enforcement provisions and penalties for those found in breach of the
regulatory standards).
102. CSAE Act, S. 601 § 4(c)(1)–(3).
103. See Alan Schwarz, Studies for Competing Design Called into Question, N.Y. TIMES, Oct.
27,
2007,
http://www.nytimes.com/2007/10/27/sports/football/27riddell.html
(highlighting industry concerns with the alleged concussion reduction ability of competing
football helmets); see also Schwartz, supra note 12 (stating that non-NOCSAE and helmet
industry experts have criticized Riddell for overselling the protective capabilities of its
football helmet models); Alexa Vaughn, Experts Skeptical of ‘Anti-Concussion’ Sports Equipment,
L.A. TIMES, Oct. 19, 2011, http://articles.latimes.com/2011/oct/19/nation/la-na-sportsbrain-damage-20111020 (pointing out that testimony at the recent Senate Committee on
Commerce, Science, and Transportation Hearing reveals that although the Riddell
Revolution helmet was advertised to reduce concussion by 31%, research indicates that the
true reduction is less than 3%).
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
285
an athletic sporting activity to make false or misleading claims with respect
to the safety benefits of the equipment.104 Section 5 requires the FTC to
regulate any violation under § 18 of the Federal Trade Commission Act
(FTCA), codifying the principles that any misrepresentation or misleading
claim with respect to the safety of an athletic product would be a violation
of the FTCA.105 Under this provision, any person found in violation of the
CSAE Act is subject to the penalties and entitled to the privileges and
immunities provided in the FTCA.106 In addition, Section 5 authorizes
state attorneys general to bring actions on behalf of their residents to obtain
appropriate injunctive relief or to pursue any appropriate criminal
charges.107
III. RECONCILING THE CURRENT NOCSAE STANDARDS WITH THE
PROPOSED LEGISLATION
A. How the Children’s Sports Athletic Equipment Safety Act Will Affect the Industry
The CSAE Act seeks to remedy many of the gaps that the current
NOCSAE standards have left unfilled as well as the general lack of efficient
oversight throughout the industry. Chief among the goals of the CSAE Act
is to foster greater transparency in testing standards and safety data
reporting.108 After Senator Udall’s initial call to investigate the football
helmet industry109 and the subsequent responses of the CPSC and the FTC
to monitor the self-regulated industry,110 two major announcements came
from the volunteer organizations monitoring the football helmet industry.
First, in January 2011, NOCSAE announced that it would work with the
Centers for Disease Control and Prevention to better communicate to
104. CSAE Act, S. 601 § 5(a)–(b).
105. Id. § 5(a)–(b). See generally 15 U.S.C. § 57(a) (outlining the FTC’s procedures for
initiating investigative proceedings against those accused of partaking in unfair or deceptive
trade practices). Similarly, the FTC created an advertising substantiation program, which
requires advertisers to have a reasonable basis for advertising claims before dissemination;
failure to rely upon a reasonable basis “constitutes an unfair and deceptive act or practice in
violation of Section 5 of the Federal Trade Commission Act.” In re Thompson Med. Co.,
Inc., 104 F.T.C. 648, 839 (1984), aff’d, 791 F.2d 189 (D.C. Cir. 1986).
106. CSAE Act, S. 601 § 5(b)(1, 3).
107. Id. § (c)(1).
108. See Schwarz, Scant Oversight, supra note 12 (discussing what Senator Udall deems to
be a severe issue within the football helmet industry—misleading advertising by two major
helmet manufacturers which could potentially be a violation of the Federal Trade
Commission Act).
109. Schwarz, Federal Investigation, supra note 85.
110. Schwarz, Updates to Standards, supra note 87; Frommer, supra note 89.
286
ADMINISTRATIVE LAW REVIEW
[64:1
parents of young athletes the safety limits of currently available helmets.111
In addition, executive members of NOCSAE voiced their concerns that
some manufacturers might not have performed as many drop-tests on
helmets as required by NOCSAE standards.112 Second, in March 2011,
NAERA announced that it would no longer accept helmets more than ten
years old for reconditioning and recertification purposes.113 Finally, in
January 2012, the major helmet manufacturer Riddell announced it would
provide a label that documents the initial season of use and recommended
maximum life of the helmet for all of its new helmets and helmets
reconditioned at a Riddell facility.114 This makes Riddell the first helmet
manufacturer to address the growing concern that young athletes continue
to use outdated and unsafe football helmets.115
As evidenced by both NOCSAE’s and NAERA’s promises of reform,
Senator Udall’s request to have the CPSC and FTC investigate the current
state of volunteer oversight and the commissions’ respective responses have
caused more changes in the current system than at any time since
NOCSAE first developed the testing standard in 1973.116 Yet, despite these
reforms, there are inherent problems with the voluntary system and the
current structure of NOCSAE that cannot be overlooked. Chief among
these issues is the source of NOCSAE’s funding117 and its lack of leadership
111. See Schwarz, Updates to Standards, supra note 87 (observing that NOCSAE will also
look into creating new standards that consider the complex forces that cause concussions,
compared to the traditional impact tests that are currently used in testing).
112. Id.
113. See Alan Schwarz, Group to Phase Out Old Football Helmets, N.Y. TIMES, Mar. 10, 2011
[hereinafter Schwarz, Phase Out], http://www.nytimes.com/2011/03/11/sports/
football/11helmet.html?_r=1&ref=headinjuries (explaining that football helmets more than
ten years old are being worn by over 100,000 young athletes every year, a fact that experts
in the field have long considered a severe safety risk).
114. Riddell Unveils New, External Helmet Dating System, MARKET WATCH (Jan. 4, 2012),
http://www.marketwatch.com/story/riddell-unveils-new-external-helmet-dating-system2012-01-04.
115. Id.
116. See Schwarz, Phase Out, supra note 113 (indicating that in addition to the
aforementioned reforms, NOCSAE has also stated that it would pursue new safety tests
specifically developed to test the varying forces that cause concussions, as well as develop
separate test standards for youth and high school helmets). It is also important to point out
that in light of the CPSC’s and FTC’s responses to Senator Udall’s call for investigation,
both Riddell, a major football helmet manufacturer, and NOCSAE have hired lobbying
firms to protect their interests while the CSAE Act is reviewed and additional legislation
becomes more likely as attention to this issue rises. Frederic J. Frommer, Influence Game:
POST,
May
16,
2011,
Helmet
Bill
Stokes
Lobbying
Effort,
WASH.
http://stats.washingtonpost.com/fb/story.asp?i=20110516101141686887108&ref=hea&tm
=&src.
117. NOCSAE Overview, supra note 73 (explaining that most of NOCSAE’s funds come
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
287
and creativity in addressing the concussion issue.118
In light of these institutionalized concerns, federal regulations seem like
the step that could most properly right the ship. Clearly, given both
NOCSAE’s and Riddell’s recent spending on lobbying,119 the notion that
the CPSC and the FTC could jointly regulate the industry through the
CSAE Act or through another piece of revised legislation is a distinct
possibility. Not only is such reform necessary, it is vital in ensuring that as
technologies develop, the proper procedures for helmet testing are
implemented and manufacturers are restrained from making false claims
regarding their products’ safety benefits.120
While NOCSAE’s and NAERA’s proposed reforms are a step in the
right direction, much more needs to be done to stabilize an industry with a
historically weak record of oversight. On October 19, 2011, the Senate
Committee on Commerce, Science, and Transportation held a hearing
concerning the current state of concussions and the marketing of sports
equipment.121 Chief among the discussion between Committee members
and those asked to partake in the discussion was the concern with
equipment manufacturers instilling a false sense of comfort in parents and
athletes by proclaiming that their products reduce the risk of head trauma
or concussions.122 Considering the attention that the members of the
from licensing fees it charges to equipment manufacturers who want to certify their
equipment meets NOCSAE standards); see Easterbrook, supra note 28 (highlighting the
conflict of interest in that if NOCSAE called a helmet unsafe, the manufacturer of the
helmet could no longer use NOCSAE’s seal and would likely stop paying NOCSAE the
licensing fee, thereby causing NOCSAE to lose a source of income).
118. See Easterbrook, supra note 28 (referring to Director of NOCSAE Michael Oliver’s
comments that because there is a lack of “scientific certainty” regarding the causes of
football concussions, NOCSAE is unwilling to offer guidance, claiming it to be “unethical”).
119. Frommer, supra note 116 (noting that Riddell spent $80,000 in the first quarter of
2011 on lobbying and recounting NOCSAE’s recent hire of a Washington lobbyist).
120. Cf. In re Thompson Med. Co., Inc., 104 F.T.C. 648, 839 (1984), aff’d, 791 F.2d 189
(D.C. Cir. 1986) (emphasizing the importance of advertisers and ad agencies having a
reasonable basis for advertising claims before they are circulated).
121. See Frederic J. Frommer, Senator Attacks Concussion Safety Claims by Sporting Goods Firms,
CHI. SUN-TIMES, Oct. 19, 2011, http://www.suntimes.com/news/nation/8306473418/senator-attacks-concussion-safety-claims-by-sporting-goods-firms.html (highlighting the
Committee’s concerns with sports equipment manufacturers misrepresenting the safety
capabilities of their equipment to buyers).
122. See id. (“The potential harm that I see being caused by products that claim to
prevent concussion when they do not is far more than simply the financial harm of paying
more for something that isn’t likely to work as claimed . . . . It is the harm that comes from
having a false sense of security, from not understanding how the injury occurs and what can
actually be done to prevent it.” (quoting the testimony of Dr. Jeffrey Kutcher,); see also id.
(highlighting the concerns of Committee Chairman Senator Jay Rockefeller, who stated, “I
find it so disturbing that some sports equipment manufacturers are exploiting our growing
288
ADMINISTRATIVE LAW REVIEW
[64:1
Committee reviewing the CSAE Act are giving to the concern of
equipment manufacturer misrepresentation,123 it is evident that the focal
point of industry reforms will not only center on creating newer and more
concussion-specific testing standards, but also on a greater accountability
and transparency by equipment manufacturers. Because the CSAE Act
seeks to tackle the two-pronged issue of product testing standards and
market advertising accountability, the CSAE Act is the most comprehensive
and effective mechanism to steady the football helmet industry for
America’s youth.
B. Recommendations to Improve the Effectiveness of the Children’s Sports Athletic
Equipment Safety Act
Despite the remedies that the CSAE Act proposes, there are still three
additional issues within the industry that need to be addressed by any
legislation ultimately passed. First, concerns still linger about the current
number of used helmets that might be improperly reconditioned or not
recertified that are being used by school-aged football players.124 The
CSAE Act needs to take a stronger position on ridding the playing field of
improperly reconditioned helmets. While the cost of new youth football
helmets is quite expensive,125 the dangers that excessively old or unsuitable
helmets pose are immense.126 The CSAE Act should include a provision
that mandates the confiscation of any helmet that has been involved in a
play that resulted in a head, neck, or spine injury to an athlete. The helmet
concerns about sports concussions to market so-called ‘anti-concussion’ products to athletes
and their parents.”).
123. See generally Detection and Treatment of Concussions in Student Athletes (C-SPAN Broadcast
Oct. 19, 2011), available at http://www.c-spanarchives.com/program/Concuss; Frederic J.
Frommer, Senators Challenge Sports Equipment Safety Claims, BLOOMBERG BUSINESSWEEK (Oct.
20, 2011), http://www.businessweek.com/ap/financialnews/D9QG1ICO0.htm (citing the
comments of Senator Udall, who proclaimed that advertisers need to be monitored when
putting anti-concussion and concussion-reducing devices on the market, and Dr. Ann
McKee, who stated she objected to the claim that a particular mouth guard advertised to
reduce the risk of concussions in fact does so).
124. See Schwarz, Phase Out, supra note 113 (citing NAERA’s concerns with the safety
capabilities of helmets that are ten years or older as the reason the volunteer reconditioning
agency will no longer be recertifying such helmets); see also Schwarz, Scant Oversight, supra note
12 (citing that only about 10%–20% percent of school-aged football players wear new
helmets, and nearly 500,000 young players will wear used helmets that have not even
undergone NAERA reconditioning procedures).
125. See id. (documenting that a youth football helmet costs between $150 and $200,
while the reconditioning of a used helmet costs about $30).
126. Id. (describing one case where a boy was permanently disabled when playing
football with a twenty-year-old reconditioned helmet).
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
289
should be taken out of commission and not used again until it is properly
recertified by an independent third-party testing agency that is either
NAERA licensed or, in the alternative, independently appointed by CPSC.
Under the Consumer Product Safety Act, the CPSC has the authority to
establish consumer product safety standards whenever such a standard “is
reasonably necessary to prevent or reduce an unreasonable risk of
injury.”127 Considering the power the CPSC has under this provision and
the clear concerns that a damaged helmet will not effectively protect its
wearer, the CSAE Act should include additional provisions mandating the
confiscation of such helmets pending third-party recertification.
Second, while helmets that have been damaged during the course of a
season pose a great risk to the user, helmets that are ten years of age or
older pose a special risk.128 Interestingly, in March 2011, NAERA
announced that effective September 1, 2012, its members would adopt a
new policy prohibiting it from reconditioning or recertifying any football
helmets ten years of age or older.129 Given NAERA’s new stance, the
CSAE Act should include a similar provision that codifies such a policy and
imposes penalties such as financial fines or criminal investigations. Under
the Consumer Product Safety Act, the CPSC has the power to ban
products that are deemed hazardous.130 Since NAERA will not even
recondition or recertify helmets over ten years old, it seems logical that
these helmets could be deemed a safety hazard and therefore be labeled as
unusable by student athletes under 14 U.S.C. § 2057. However, given the
costs of new helmets compared to refurbished helmets,131 the CSAE Act
should be supplemented with a subsidy plan that assists in funding school
districts below a certain financial marker in purchasing new or more
127. See Consumer Product Safety Act § 7, 15 U.S.C. § 2056(a) (2006) (“A consumer
product safety standard shall consist of one or more of any of the following types of
requirements: (1) Requirements expressed in terms of performance requirements; (2)
Requirements that a consumer product be marked with or accompanied by clear and
adequate warnings or instructions, or requirements respecting the form of warnings or
instructions.”).
128. Schwarz, Phase Out, supra note 113.
129. Id.
130. See Consumer Product Safety Act § 8, 15 U.S.C. § 2057 (stating that the CPSC may
ban a hazardous product whenever the consumer product “is being, or will be, distributed in
commerce and such consumer product presents an unreasonable risk of injury; and no
feasible consumer product safety standard . . . would adequately protect the public from the
unreasonable risk of injury associated with such product”).
131. See Schwarz, Phase Out, supra note 113 (pointing out that a potential backlash from
NAERA’s new policy would be that underfinanced schools possibly purchasing
reconditioned old helmets for $30 will likely be unable to purchase new helmets for $150 to
$200).
290
ADMINISTRATIVE LAW REVIEW
[64:1
recently reconditioned and recertified football helmets.132 By providing
such a subsidy, the CSAE Act would better prevent underfinanced schools
from using older and potentially unsafe helmets instead of purchasing
newer helmets. One would hope that a subsidy program and the potential
legal liability that would attach to a school district133 allowing its players to
use unsatisfactory helmets would be sufficient to promote safe internal
standards within the school programs. While the CSAE Act would provide
such subsidies and standards for testing and reconditioning, the language of
the bill should make it clear that the school district or governing body for
the school’s athletic conference are responsible for making sure each school
is in compliance with the “no helmet over ten years old” policy.
In an effort to promote helmet manufacturers’ involvement in the
program and in redefining the acceptable use of youth football helmets, the
CSAE Act should offer a tax incentive to manufacturers that provide new
or reconditioned and recertified helmets that are less than five years old to
schools below the aforementioned financial marker. Additionally, the
CSAE Act should incentivize research and technological development by
providing research grants to equipment manufacturers to continue the
growth of concussion-reducing equipment.134
Third, the CSAE Act should codify a ratings standard similar to that of
the Virginia Tech star-rating system, which is modeled after crash safety
rankings for automobiles.135 Under the proposed legislation, the FTC is
132. The CPSC can provide such a subsidy pursuant to its statutory authority in § 7 of
the Consumer Product Safety Act, which provides, “If any person participates with the
Commission in the development of a consumer product safety standard, the Commission
may agree to contribute to the person’s cost with respect to such participation, in any case in
which the Commission determines that such contribution is likely to result in a more
satisfactory standard than would be developed without such contribution . . . .” 15 U.S.C.
§ 2056.
133. See Schwarz, Phase Out, supra note 113 (detailing the story of Joy Conradt, whose son
was permanently disabled by concussions he sustained while wearing a twenty-year-old
reconditioned helmet, and the subsequent out-of-court settlement for $3.2 million for
lifelong medical care paid out by the school district, insurance carrier, and reconditioning
company).
134. See supra note 132 (discussing the CPSC’s ability to incentivize cooperation in the
creation of rulemaking proceedings through § 7 of the Consumer Product Safety
Commission Act).
135. See Nystrom, supra note 30 (explaining that five stars means the helmet is the best
available in terms of safety results, four stars is very good, three stars is good, two stars is
adequate, one star is marginally safe, and NR means the helmet is not recommended).
Similar to the automobile crash safety rankings, the Virginia Tech rating system is akin to
the Ease-of-Use Ratings for child car seats, which created an accessible five-star rating
system to aid consumers in evaluating the safety capabilities of child car seats. Taken into
account for ratings are factors such as the clarity of the labeling attached to the restraint,
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
291
charged with monitoring and regulating false advertising or misleading
claims with respect to the safety benefits of a football helmet.136 Currently,
under § 52 of the FTCA, it is unlawful for any person or entity to
disseminate any false advertisement “for the purpose of inducing, or which
is likely to induce, directly or indirectly the purchase of food, drugs, devices,
services . . . .”137 Therefore, even without the passage of the CSAE Act, the
FTCA empowers the FTC to bring suit in federal court whenever the FTC
believes that a person, partnership, or corporation is engaged in the
dissemination of such false advertisements.138 However, the question that
needs to be asked is, how can an agency properly monitor or even penalize
for misrepresentation if there is no standardized way to measure the safety
benefits and weakness of helmets available to consumers? Even with all of
the recent studies regarding the causes and effects of concussions, the
Virginia Tech star-rating system is the only current research that attempts
to suggest a more effective way to independently measure the safety benefits
(or lack thereof) of helmets available to consumers.139 Using the Virginia
Tech star-rating system as a base, the FTC should empower third-party
testing agencies to evaluate all helmets under Virginia Tech’s rating rubric.
ease of installation, and security of the child. See CPS: Ease-of-Use Ratings FAQs, NAT’L
HIGHWAY TRAFFIC SAFETY ADMIN., http://www.nhtsa.gov/Driving+Safety/Child+Safety/
CPS:+Ease-of-Use+Ratings+FAQs (last visited Feb. 8, 2012) (discussing the criteria taken
into account for determining the Ease-of-Use ratings while also distinguishing the current
Ease-of-Use rating system from a pure ranking of child restraints on the market). At a
minimum, the current Ease-of-Use ranking system provides a readily available database for
consumers to research a third-party evaluation of car seat systems currently on the market.
See Child Seats: Ease-of-Use Ratings, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., available at
http://www.nhtsa.gov/Safety/Ease-of-Use (last visited Feb. 8, 2012).
136. Children’s Sports Athletic Equipment Safety (CSAE) Act, S. 601, 112th Cong.
§ 5(a), (b)(1) (2011).
137. Federal Trade Commission Act § 12, 15 U.S.C. § 52 (2006).
138. See id. § 13, 15 U.S.C. § 53(a) (describing that upon a proper showing of
dissemination of false advertisement, a temporary injunction or restraining order is to be
granted); see also id. § 14, 15 U.S.C. § 54 (“Any person, partnership, or corporation who
violates any provisions of section 52(a) . . . if the use of the commodity advertised may be
injurious to health because of results from such use under the conditions prescribed in the
advertisement thereof . . . or if such violation is with intent to defraud or mislead, be guilty of
a misdemeanor, and upon conviction shall be punished by a fine or not more than $5,000 or
by imprisonment for not more than six months, or by both such fine and imprisonment;
except that if the conviction is for a violation committed after a first
conviction . . . punishment shall be by a fine of not more than $10,000 or by imprisonment
for not more than on year, or by both such fine and imprisonment . . . .”).
139. See Nystrom, supra note 30.
292
ADMINISTRATIVE LAW REVIEW
[64:1
Because the Virginia Tech star-rating system is the first to rate the safety
benefits of the helmets, the CSAE Act should provide funding to further
evaluate and improve the rating system in an effort to increase its
effectiveness.140
CONCLUSION
“The voluntary efforts have failed—the voluntary regulatory agency or
body, whatever we want to call it, just hasn’t moved forward in an
aggressive way.”141 As the public became more concerned with the
fatalities associated with participating in football during the 1960s and
1970s, NOCSAE answered the call to promote research and develop new
equipment testing strategies.142 However, as the game has evolved and the
technology of equipment associated with it advanced,143 NOCSAE stood
on the sidelines and avoided adjusting its policies or increasing its authority
over the industry to meet this changing dynamic. As the concussion crisis
became a growing problem with youth football, NOCSAE did little to
Specifically, given the
update its outdated testing procedures.144
advancement in equipment technology and the neurological and
biomechanical differences of youth athletes compared to adults,145
NOCSAE’s testing standards and oversight have done nothing to curb the
concussion crisis among school-aged children. The question that must be
asked is why, given the widespread attention to the concussion problem at
both the professional and amateur levels, has the voluntary oversight system
continued to fail? The answer likely lies in a combination of both
business146 and legal147 concerns. The power that the FTC and the CPSC
140. See supra note 132 (outlining the CPSC’s ability to contribute to the organization’s
costs under the Consumer Product Safety Act).
141. Schwarz, Equipment Safety for Children, supra note 16 (quoting Sen. Tom Udall).
142. See About NOCSAE, supra note 13 (explaining the impetus behind creating
NOCSAE).
143. See supra note 17.
144. See Easterbrook, supra note 28 (explaining how NOCSAE ranks all helmets that pass
its test as equal, and has no plans to update its practice until “there may be ‘scientific
certainty’ about the exact cause of football concussions”).
145. See generally Stephanie Smith, Concussions Extra Dangerous to Teen Brains, CNN (Feb. 3,
2010), http://articles.cnn.com/2010-02-03/health/concussions.teen.brains_1_concussionsdavid-bosse-school?_s=PM:HEALTH (outlining several incidents where teen football
players died as a result of misdiagnosed concussions).
146. See NOCSAE Overview, supra note 73; Easterbook, supra note 117 (discussing the
funding structure of NOCSAE).
147. See Easterbrook, supra note 28 (discussing NOCSAE’s reluctance to provide
guidance on the concussion issue while there is still so much uncertainty regarding the best
treatment, equipment, and testing procedures).
2012]
THE FAILURE OF YOUTH FOOTBALL HELMET REGULATION
293
have under their respective acts makes federal regulation the most effective
tool in establishing a new standard of research, testing, maintenance, and
transparency. Under the direction of Senator Udall and the CSAE Act, the
youth football helmet industry could see its first positive steps toward
adequate oversight, with an emphasis on not only maintenance and
uniform testing standards for helmets, but also on continuing research of
concussion-reducing equipment.148 Yet, given the difficulties in creating
concussion-reducing testing and equipment, perhaps the most important
component to the CSAE Act is the increased focus on protecting consumers
from equipment manufacturers falsely advertising the safety capabilities of
their equipment.149 In addition to the educational and preventative
initiatives undertaken by individual states150 and through the ConTACT
Act,151 Section 5 of the CSAE Act offers the greatest avenue of protection
while new technologies and testing standards are explored in the hopes of
developing safer and more sustainable equipment.
While the CSAE Act does not empower the FTC and the CPSC with
any new responsibilities not previously outlined in the FTCA or the
CPSCA, the CSAE Act does codify into a single piece of legislation powers
that NOCSAE has been unwilling and, perhaps more accurately, unable to
enforce throughout the industry. Moreover, the CSAE Act allows for
independent agencies, under the aegis of federal legislation, to address
issues that voluntary standards have been minimizing or unwilling to
address.152 Under the guidance of the CSAE Act and with the assistance of
the CPSC and the FTC, the youth football helmet industry will be able to
implement the necessary changes to finally provide the needed level of
oversight to hold equipment manufacturers and reconditioners accountable
for unsafe youth football helmets. Only then will the football helmet
industry be able to effectively supervise and protect the millions of schoolaged children participating in youth football across the country.
148. CSAE Act, S. 601, 112th Cong. § 3(a)(1) (2011) (“[C]ompliance with the standard
or standards is likely to result in the elimination or adequate reduction of the risk of injury in
connection with the use of football helmets . . . .”).
149. Id. § 5(a)–(c).
150. See generally Concussion Information & Competition Policies by State, supra note 81.
151. Concussion Treatment and Care Tools Act, H.R. 1347, 111th Cong. (2010).
152. See Easterbrook, supra note 28.