BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2387


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          Date of Hearing:  April 19, 2016


                ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION


                                   Ed Chau, Chair


          AB 2387  
          (Mullin) - As Amended April 14, 2016


          SUBJECT:  Vehicle equipment: counterfeit and nonfunctional  
          airbags


          SUMMARY:  Prohibits the intentional manufacture, importation,  
          installation, reinstallation, distribution, sale, or offer for  
          sale of a counterfeit or nonfunctional airbag, and also  
          prohibits a person from knowingly and intentionally selling,  
          installing or reinstalling any device that would cause a  
          vehicle's diagnostic systems to fail to warn when the vehicle is  
          equipped with a counterfeit airbag or nonfunctional airbag,  
          violation of which is a misdemeanor punishable by a $5000 fine  
          and up to one year in jail.  Specifically, this bill:  


          1)Prohibits the manufacture, importation, installation,  
            reinstallation, distribution, sale, or offer for sale of any  
            device with the intent that the device replace an airbag in  
            any motor vehicle if the person knows or reasonably should  
            know that the device is a counterfeit airbag or a  
            nonfunctional airbag, or does not meet federal safety  
            requirements, violation of which is a misdemeanor punishable  
            by a fine of up to five thousand dollars ($5,000) or by  
            imprisonment in a county jail for up to one year, or both.










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          2)Prohibits a person from knowingly and intentionally selling,  
            installing or reinstalling in a vehicle, any device that  
            causes the vehicle's diagnostic systems to fail to warn when  
            the vehicle is equipped with a counterfeit airbag or  
            nonfunctional airbag, or when no airbag is installed,  
            violation of which is a misdemeanor punishable by a fine of up  
            to five thousand dollars ($5,000) or by imprisonment in a  
            county jail for up to one year, or both.



          3)Deems a violation of either prohibition provided above to be  
            deemed an unfair or deceptive act or practice for purposes of  
            the Consumers Legal Remedies Act, with each act of  
            manufacture, importation, installation, reinstallation, sale,  
            or offer for sale constituting a separate and distinct  
            violation.



          4)Provides that an installation or reinstallation shall not have  
            occurred for purposes of these provisions until the work is  
            complete.



          5)Defines "airbag" to mean a motor vehicle inflatable occupant  
            restraint system device, including all component parts, such  
            as the cover, sensors, controllers, inflators, and wiring,  
            that the vehicle manufacturer recommends be replaced after  
            deployment that meets both of the following criteria:



               a)     Operates in the event of a crash; and 











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               b)     Is designed in accordance with federal motor vehicle  
                 safety standards for the specific make, model, and year  
                 of the motor vehicle in which it is or will be installed.

          6)Defines a "counterfeit airbag" to mean a replacement airbag  
            that displays a mark identical or substantially similar to the  
            genuine mark of a motor vehicle manufacturer or a supplier of  
            parts to the manufacturer of a motor vehicle without  
            authorization from the manufacturer of the motor vehicle or  
            supplier.



          7)Defines a "nonfunctional airbag" to mean a replacement airbag  
            that meets any of the following criteria:



               a)     The airbag was previously deployed or damaged;



               b)     The airbag has an electric fault that is detected by  
                 the vehicle's airbag diagnostic systems after the  
                 installation procedure is completed; and



               c)     The airbag includes a part or object, including, but  
                 not limited to, a counterfeit or repaired airbag cover or  
                 airbag component, installed in a motor vehicle to mislead  
                 the owner or operator of the motor vehicle into believing  
                 that a functional airbag has been installed.
          8)Deletes and recasts existing law that prohibits the  
            installation, reinstallation, rewiring, tampering, alteration  
            or modification for compensation of a vehicle's airbag systems  
            to falsely indicate the system is in proper working order, and  
            prohibits the knowing distribution or sale of a previously  
            deployed airbag or component that no longer meets the original  








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            equipment specifications.  


          9)Declares that no reimbursement is required pursuant to the  
            California Constitution because the only costs that may be  
            incurred by a local agency or school district will be incurred  
            because this act creates a new crime or infraction, eliminates  
            a crime or infraction, or changes the penalty for a crime or  
            infraction, or changes the definition of a crime.


          EXISTING LAW:   


          1)Makes it a misdemeanor for a person to: (a) install,  
            reinstall, rewire, tamper with, alter, or modify for  
            compensation, a vehicle's computer system or supplemental  
            restraint system, otherwise referred to as an airbag, so that  
            it falsely indicates the supplemental restraint system is in  
            proper working order; or (b) knowingly distribute or sell a  
            previously deployed airbag or component that will no longer  
            meet the original equipment manufacturing form or function for  
            proper operation.  Violations are a misdemeanor punishable by  
            a fine of up to $5000 and up to one year in county jail.   
            (Vehicle Code Section 27317)


          FISCAL EFFECT:  Unknown


          COMMENTS:  


           1)Purpose of this bill  .  This bill is intended to curb the  
            illegal market for dangerous replacement vehicle airbags by  
            prohibiting the intentional manufacture, importation,  
            installation, reinstallation, distribution, sale or offer for  
            sale of counterfeit and nonfunctional airbags.   









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           2)Author's statement  .  According to the author, "AB 2387 is a  
            consumer protection measure. It strengthens existing laws  
            aimed at deterring the fraudulent distribution and  
            installation of counterfeit airbags by more clearly defining  
            key terms and increasing the penalty for knowingly exposing  
            the public to this potentially deadly hazard."


           3)The counterfeit airbag problem  .  The National Highway Traffic  
            Safety Administration (NHTSA) states on its website that it  
            "has become aware of a problem involving the sale of  
            counterfeit air bags for use as replacement parts in vehicles  
            that have been involved in a crash. While these air bags look  
            nearly identical to certified, original equipment parts -  
            including bearing the insignia and branding of major  
            automakers - NHTSA testing showed consistent malfunctioning  
            ranging from non-deployment of the air bag to the expulsion of  
            metal shrapnel during deployment. NHTSA is not aware of any  
            deaths or injuries connected to counterfeit air bags."  



          NHTSA goes on to point out that: " [w]hile the full scope and  
            scale of the problem of counterfeit air bags is uncertain from  
            currently available data, NHTSA has identified certain vehicle  
            makes and models for which these air bags may be available and  
            believes this issue affects less than 0.1 percent of the U.S.  
            vehicle fleet. Only vehicles which have had an air bag  
            replaced within the past three years by a repair shop that is  
            not part of a new car dealership may be at risk."
           4)Recent efforts to deal with counterfeit airbags  .  According to  
            the author, current state and federal law has been  
            insufficient to stop the trade in counterfeit and  
            nonfunctional airbags.



          Since 2011, "Federal authorities have made at least 16 arrests  








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            across the county, including in California, relating to  
            counterfeit airbags. In these cases the Feds cited a violation  
            of federal trademark law (Title 19, Section 133.21), which  
            occurs when a registered trademark or a mark substantially  
            similar to a registered trademark is used on a fake airbag  
            without approval. Unfortunately, the majority of legitimate  
            airbags, including passenger and side-curtain airbags, do not  
            contain trademarks and therefore counterfeits cannot be  
            prosecuted or even confiscated by federal authorities.  When  
            they are discovered by law enforcement they must eventually be  
            released and can find their way into the marketplace. Once in  
            the country, the manufacturer's insignia is attached and the  
            counterfeit product is sold."
            With trademark law proving to be ineffective in stopping the  
            trade, "a coalition of stakeholders has enacted similar laws  
            to AB 2387 in ten states (AL, CT, FL, IA, LA, NJ, NM, NY, OH &  
            TX) by a combined vote of 1,386-1. This policy was also  
            adopted as model legislation by the Council of State  
            Governments in its 2015 'Suggested State Legislation' docket."

            In modernizing the existing prohibition against the trade in  
            counterfeit airbags, this bill would do two things.  First, by  
            defining the terms "airbag," "counterfeit airbag," and  
            "nonfunctional airbag" broadly, the statute would encompass  
            and prohibit all airbags not designed in accordance with  
            federal motor vehicle safety standards.  Second, the bill  
            would take aim at the root of the problem by penalizing not  
            only the individuals who install counterfeit and nonfunctional  
            airbags, but those who intentionally manufacture, sell and  
            import them as well.  

           5)The Consumer Legal Remedies Act  .  The CLRA exists to provide  
            protection to consumers from unfair methods of competition and  
            unfair or deceptive acts or practices related to the sale or  
            lease of goods or services.  The statute currently prohibits  
            26 commercial practices, which cover a range of general  
            misrepresentations as well as specific restrictions on  
            solicitations related to prerecorded messages, public social  
            service applications, home solicitations of senior citizens,  








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            and veteran's benefits.  



          The CLRA provides a range of remedies to an injured consumer,  
            including actual damages of at least $1000, injunction,  
            restitution, punitive damages, attorney's fees, and other  
            relief as the court may direct.  The law also contains  
            provisions for class action suits.  However, the CLRA provides  
            an affirmative defense for unintentional violations and bona  
            fide errors if corrected within 30 days of being notified by  
            the consumer.   
           6)Arguments in support  .  According to Honda, "In 2010, federal  
            authorities made Honda aware of a growing problem with cheap  
            and ineffective counterfeit bags entering the U.S. stream of  
            commerce from China.  While those airbags looked authentic  
            from the outside?the counterfeiters were unable to replicate  
            the technology required to protect consumers in the event of a  
            collision?[M]any counterfeiters?chose to fill airbags with  
            sawdust, newspaper, paper towels, Styrofoam or other items  
            never intended to provide vehicle occupants with protection  
            during a crash?Over the past few years, several thousand  
            counterfeit airbags have been confiscated in raids across the  
            country."



          "Despite their best efforts, federal agents have limited  
            authority to combat this problem.  Federal authorities are  
            only able to prosecute counterfeiters when they violate  
            federal trademark law?Unfortunately the majority of legitimate  
            airbags, including passage and side-curtain airbags do not  
            contain trademarks and therefore fakes cannot be prosecuted  
            under trademark law.  Even when these fake airbags are  
            discovered by authorities they must eventually be released and  
            can eventually find their way into the marketplace.   
            Additionally, counterfeiters are becoming increasingly aware  
            of this loophole and are shipping driver-side airbags without  
            the trademark in order to avoid confiscation and  








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            prosecution?Existing California laws relating to airbag fraud  
            do not address this specific and growing problem, but are  
            consistent with the legislature's original intent of  
            protecting consumers?" 

          According to auto safety advocates, Consumers for Auto  
            Reliability and Safety, "This bill will prohibit any person  
            from manufacturing, importing, installing, reinstalling,  
            selling, or offering for sale counterfeit or nonfunctioning  
            air bags.  It will prohibit selling any device designed to  
            mislead car buyers into believing they have a fully  
            functioning air bag, by altering the vehicle's diagnostic  
            system . It will also make a knowing violation of these  
            prohibitions an unfair and deceptive act or practice, for  
            purposes of invoking the Consumer Legal Remedies Act, and a  
            felony criminal offense.  Such acts are a serious threat to  
            motorists' safety. Unfortunately, too many dealers continue to  
            sell vehicles without air bags, inducing consumers to sign  
            contracts that state the dealer is not liable for the  
            condition of the air bags. Therefore, a blanket prohibition is  
            all the more important."



           7)Recent negotiations  .  This bill was substantially amended to  
            recast and reorganize its original language.  Significant  
            changes include lowering the penalty for violation from a  
            felony and five years in jail to a misdemeanor and one year in  
            jail.

          Further discussions between the author, supporters and opponents  
            have been ongoing over the remaining issue of the precise  
            scope of the definition of "airbag."  According to the  
            author's office and opponents, a tentative agreement over that  
            definition has been reached that would lead opponents to take  
            a neutral position, although no formal letter to that effect  
            has been received.    










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          8)Previous legislation  . SB 869 (Yee), Chapter 430, Statutes of  
            2011, increased the penalty for a person who, after preparing  
            a written estimate to repair a deployed airbag, fails to  
            properly repair and restore that airbag to its original  
            condition to a misdemeanor penalty of up to one year in jail,  
            a $5,000 fine, or both.

          SB 427 (Negrete McLeod) of 2009 would have established a  
            misdemeanor penalty of up to one year in jail, a $5,000 fine,  
            or both for an automotive repair dealer who prepared for a  
            customer a written estimate that includes replacement of a  
            deployed airbag and who fails to repair and restore the airbag  
            to original operating condition.  Governor Schwarzenegger  
            vetoed SB 427, citing that it was duplicative of existing law  
            and, therefore, added little additional benefit to consumers. 
           9)Double-referral  .  This bill was double-referred to the  
            Assembly Public Safety Committee, where it was heard on April  
            5, 2016, and passed on a 7 to 0 vote. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Association of Global Automakers  


          Consumers for Auto Reliability and Safety (CARS)


          Honda North America, Inc.


          Alliance of Automobile Manufacturers (previous version)








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          Automobile Club of Southern California (AAA) (previous version)


          California Association of Highway Patrolmen (previous version)


          California Professional Firefighters (previous version)


          Ford Motor Company (previous version)




          Opposition


          Auto Dismantlers Association of Southern California (previous  
          version)


          California Auto Dismantlers and Recyclers Alliance (previous  
          version)


          Inland Auto Dismantlers Association (previous version)


          State of California Auto Dismantlers Association (previous  
          version)


          Valley Auto Dismantlers Association (previous version)












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          LKQ Corporation (concerns) (previous version)


          Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200