Part of Firework Law goes BOOM! as Commonwealth Court Highlights the Need for Inclusion of Safeguards in Delegation of Legislative Authority

December 18, 2018
Laura E. McGarry

Where I am from, fireworks are an important part of nearly every type of celebration. Fourth of July? Light up some firecrackers. New Year’s Eve? Shoot off some bottle rockets. Random Tuesday? Torch a Roman candle. Like many of my former neighbors in Northeastern Pennsylvania, pyro-technicians throughout the Commonwealth were thrilled last year when the Pennsylvania state legislature passed Act 43, which repealed the former Fireworks Law and expanded permissible fireworks sales, even though it also called for the imposition of a 12% tax on such fireworks. Under Act 43, consumers are able to purchase “consumer-grade” fireworks including firecrackers, Roman candles, bottle rockets and similar fireworks, many of which were previously only available to out-of-state residents. Act 43 also allowed fireworks to be purchased at licensed facilities including temporary structures, which were permitted to sell fireworks around the 4th of July and New Year’s Eve holidays. 

After Act 43 was passed, several brick-and-mortar firework retailers questioned the constitutionality of the law and filed suit against a number of Commonwealth of Pennsylvania executives and legislators.

The Commonwealth Court recently issued an opinion in the case addressing the legislature’s ability to delegate rulemaking. The Court found that the legislature unconstitutionally delegated its legislative authority when it adopted the definition of “temporary structure” set forth by The National Fire Protection Association (“NFPA”), a non-governmental fire safety trade organization. The Commonwealth Court explained that by delegating such authority, without parameters, the NPFA is left free to create, alter or remove any standard it chooses concerning temporary structures used to sell fireworks. This creates the potential for NFPA drafters to be “open to influence by trade groups or individuals whose interests may or may not match those of the electors.”

As a result of the Commonwealth Court’s holding, Act 43’s provisions relating to temporary structures are severed leaving the remainder of the statute, including the 12% tax, intact. This ruling will impact not only the approximately 300 temporary retail firework dealers that were licensed in the past year, but also firework consumers who are now limited to purchasing less powerful fireworks from roadside tents. The good news is that the Commonwealth’s 80 brick-and-mortar fireworks retailers are still able to sell the more spectacular fireworks and we’re all a little more knowledgeable about delegation of legislative authority. The bad news is that your New Year’s Eve preparations this year will include not only standing in line at the liquor store, but also longer lines at your local brick and mortar fireworks store.

Laura McGarry is an attorney at Russell, Krafft and Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Penn State Law and provides legal counsel to individuals and businesses in Lancaster and surrounding communities.