Could a Connecticut fireworks fountain mainly whistle or flame instead of producing sparks or smoke in 2008?

Plain-English summary

In 2008, Connecticut Attorney General Richard Blumenthal explained a Connecticut Supreme Court decision about fireworks sold as "fountains." The fountain's main pyrotechnic effect had to be a shower of colored sparks or smoke. A prominent flame or whistle could not stand in for that statutory effect, even if the product also gave off a little smoke or a few sparks.

The court had considered a product called Piccolo Pete, whose most visible effects were a sustained flame and loud whistle. The AG said the same reasoning applied to crackling and whistling sounds: they could be present only as incidental results of ignition, not as the primary effect. He described the question as one of which effect predominated, rather than whether the device produced any smoke at all.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Fireworks sellers at the time

The opinion interpreted the narrow 2008 exemption for non-explosive, nonaerial sparklers and fountains. A device shaped like a fountain did not qualify when its principal effect was a flame or whistle instead of the statutory shower of colored sparks or smoke.

Public safety inspectors at the time

The AG used the court's comparison of Piccolo Pete's effects. Its small amount of smoke was an "ancillary byproduct" of a dominant flame, so the court did not have to choose between the flame and whistle as the main effect. The opinion treated crackles and whistles the same way: they could not be predominant.

Common questions

Q: Did a firework count as a fountain just because it came in a cone or tube?
A: No. The 2008 opinion said the construction was insufficient if the product's main pyrotechnic effect was something other than a shower of colored sparks or smoke.

Q: Could a permitted fountain whistle or crackle?
A: The AG said an audible effect could be present only if it resulted from ignition and was incidental to the shower of sparks or smoke. The opinion did not treat a primary whistle or crackle as permitted.

Q: How did the AG distinguish a main effect from an incidental one?
A: He looked to the court's treatment of Piccolo Pete. The product's small amount of smoke was secondary to its prominent flame, so it did not qualify as a fountain on that basis.

Background and statutory framework

The Department of Public Safety asked how to apply American Promotional Events, Inc., v. Blumenthal to products with flame or sound effects. The Connecticut Supreme Court had read the statutory fountain exception narrowly in light of fireworks safety rules. The opinion followed that holding and applied its primary-effect test to sounds the court had not addressed directly.

The AG interpreted Conn. Gen. Stat. § 29-356(3)'s fountain definition alongside the sales exemption in §29-357. He said showers of colored sparks or smoke were the permitted effects, with other effects limited to incidental byproducts.

Citations and references

Statutes cited in the opinion: Conn. Gen. Stat. § 29-356(3); §29-357.

Case discussed in the opinion: American Promotional Events, Inc., v. Blumenthal, 285 Conn. 192 (2008).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2008-formal-opinions/john-a-danaher-iii-commissioner-department-of-public-safety-formal-opinion-2008007-attorney-general

Original opinion text

John A. Danaher III, Commissioner Department of Public Safety, Formal Opinion 2008-007, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 29, 2008

John A. Danaher III

Commissioner

Department of Public Safety

1111 Country Club Road

Middletown, CT 06457

Dear Commissioner Danaher:

By letter dated March 5, 2008, you requested an opinionregarding the scope of our Supreme Court’s decision in American Promotional Events, Inc., v. Blumenthal, 285 Conn. 192 (2008). Specifically, your letter asks whether the decision in American Promotional Events bars the sale of fountains and sparklers in Connecticut that produce pyrotechnic effects other than a “shower of colored sparks or smoke” as referenced in Conn. Gen. Stat. § 29-356(3). Additionally, you seek advice on how to distinguish between a “primary pyrotechnic effect” and an effect that is “merely incidental” to the combustibility of the product, as those terms are used in the American Promotional Events decision.

In 2006, the legislature amended §29-356 to define “sparkler” as “a wire or stick coated with pyrotechnic composition that produces a shower of sparks upon ignition.” This amendment also, for the first time, included in §29-356 a definition of “fountain” as consisting of “any cardboard or heavy paper cone or cylindrical tube containing pyrotechnic mixture that upon ignition produces a shower of colored sparks or smoke.” At the same time, the legislature amended §29-357 to permit the sale and use of sparklers and fountains, as those terms are defined in §29-356, provided they remained non-explosive and nonaerial, and met certain enumerated limitations regarding construction, composition and the like. Critically, the only pyrotechnic effects that are permitted by the statutes are showers of colored sparks or smoke.

In American Promotional Events, the Supreme Court interpreted these statutory provisions as they applied to a certain product, known as Piccolo Pete. This particular firework consisted of a cylindrical tube containing pyrotechnic material whose primary pyrotechnic effects were a sustained flame rising four or more inches above the product for five to six seconds, and a loud whistle. The product emitted some sparks and smoke, but not of an amount that could fairly be described as a shower. Thus, the question before the court was whether a product constructed like a fountain, but whose primary pyrotechnic effect was something other than a shower of colored sparks or smoke, could be legally sold as a fountain as that term is defined in § 29-356.

In determining that Piccolo Pete was not a fountain, the Supreme Court recognized that the legislature “has broadly prohibited the use and sale of most fireworks that pose significant public safety concerns because of their combustibility,” characterizing our fireworks statutes as representative of “the fact that fireworks are widely banned and intensively regulated under our statutory scheme.” Id. at 204-05. To further the important public safety interests advanced by our fireworks statutes, the Court determined that § 29-357 (3), permitting the sale of sparklers and fountains, must be read narrowly to give full consideration to “the policy that the legislature sought to implement in enacting the statute.” Id. at 205 (citation omitted).

The Court then turned to the statutory language that limited the pyrotechnic effects of sparklers and fountains. Recognizing that the phrase “shower of colored sparks or smoke” is somewhat awkward, in that the word “shower” must be read to modify both “colored sparks” and “smoke,” the Court reasoned that such a reading is nonetheless appropriate because “the legislature was seeking to ensure that, to be classified as a fountain, [a] firework must produce either a significant amount of sparks or a significant amount of smoke, the effects that represent the salient pyrotechnic characteristics of the particular type of firework known as a fountain.” Id. at 204. Accordingly, when §§ 29-356 and 29-357 are read together and in proper context, they “evince a legislative intent that a firework shall be deemed to fall within the limited exemption for sparklers and fountains only if the primary or principal pyrotechnic effect of the firework is the pyrotechnic effect that the legislature expressly has permitted.” Id. Noting that 29-356 (3) “does not mention any other pyrotechnic effect,” the Supreme Court concluded that “a firework whose primary pyrotechnic effect is not a shower of colored sparks or smoke simply is not a fountain within the meaning of § 29-356 (3).” Id. Smoke and a flame are permitted only if they are “achieved through ignition” and are “ancillary to the fountain’s primary pyrotechnic effect of sparks and smoke.” Id.

Drawing from this analysis, we answer your questions as follows. First, with respect to products that crackle or whistle, the American Promotional Events decision did not directly address whether such an effect is permitted. However, applying the reasoning of the decision, it is clear that such audible effects are permitted only if they are “achieved through ignition” and are “ancillary to the fountain’s primary pyrotechnic effect of sparks and smoke.” Crackling and whistling sounds cannot be the primary pyrotechnic effect, and if present at all, must be incidental to the ignition process that generates the fountain’s “shower of colored sparks or smoke.”

With respect to the question of how your agency should distinguish between a primary and incidental effect, the Supreme Court’s analysis is instructive. Viewing a video demonstration of an ignited Piccolo Pete, the Supreme Court concluded that the product (1) “produces only a small amount of smoke,” (2) the smoke “is merely the ancillary byproduct of the flame that Piccolo Pete produces and not the primary or predominant pyrotechnic effect of the firework,” and (3) this ancillary smoke “cannot possibly be characterized as a shower of smoke.” For the purpose of its analysis, the Court reasoned that it need not determine whether Piccolo Pete’s predominant pyrotechnic effect is its whistle or its flame since “it is sufficient that Piccolo Pete’s primary pyrotechnic effect is not the smoke that it emits.” Id. at 207-8. Using this framework as a guide, a “shower of colored sparks or smoke” must be the primary or predominant pyrotechnic effect, and other effects are permissible only if they are ancillary byproducts of the fountain’s ignition.

We welcome the ongoing opportunity to work together with your agency to assure the public is protected from illegal, and potentially dangerous, fireworks.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL