More states enacting specific e-bike use, labeling and equipment regulations as popularity surges

Illinois recently became the sixth state to adopt electric bicycle ("e-bike") legislation to become effective on January 1, 2018 joining Arkansas, California, Colorado, Tennessee and Utah. States like Ohio, Michigan and Wisconsin have e-bike legislation pending.

So what is so special about e-bikes? And why are states working to regulate this nascent recreational industry? There are a lot of reasons why e-bikes have grown in popularity, but some of the reasons sparking e-bike popularity are: (1) they can be used by older adults and those with physical challenges; (2) they can functionally and affordably replace other motorized vehicles (e.g. cars, motorcycles); (3) they offer a means of transportation for those who cannot otherwise operate motorized vehicles; (4) they are a more efficient, faster and/or uniquely different riding experience for those that already ride pedal-powered bicycles; and (5) they are an environmentally-friendly option for extended transportation.

According to some estimates, growth in e-bike sales in the US has doubled from $16.7 million in the first half of 2016 to $31.8 million through the first six months of 2017 with the average cost to own an e-bike between $1,000 and $6,000. Additionally, there are over 200 million e-bikes in use on Chinese roadways and it is estimated that global market value for e-bike sales will be over $24 billion by 2025. It seems e-bikes are here to stay for the foreseeable future.

In response, the bicycle industry and several states have decided to adopt specific e-bike legislation to tackle many legal issues surrounding this new technology and riding use. Fortunately, through the efforts of advocacy groups, such as People for Bikes and the Bicycle Product Suppliers Association (BPSA), the legislation to date (as shown in more detail below) is fairly harmonized across the several states that have adopted specific e-bike legislation.

Despite such standardization efforts, not every state has the exact same legislation. For example, an e-bike in Tennessee is defined as an "electric bicycle," however in Illinois an e-bike is defined as a "low-speed electric bicycle." While this particular example is not material to the overall effect and enforcement of each state's respective bills, it does provide some general warning and guidance for e-bike manufacturers, distributors, retailers and consumers to be aware of the many intricacies surrounding the new e-bike state regulations.

One particular area of confusion that will most likely lead to further legal discussion and clarification surrounds the e-bike labelling requirements enacted by all of the states referenced above. Notwithstanding different effective dates, all of the states to-date that have adopted e-bike legislation include an e-bike classification labelling requirement. Every manufacturer or distributor of new e-bikes intended for sale or distribution in the respective state must permanently affix a label that contains: (1) the e-bike classification (1, 2, 3 as defined below); (2) top assisted speed; and (3) motor wattage. The legislation also requires a new label if the e-bike speed and non-pedaling capabilities are modified to warrant a new e-bike classification. Furthermore, most states have fines, penalties or civil charges to address violations of such labelling requirements.

The issue, however, is that the legislation in its current state is silent to some important negligence questions. Can a retailer who sells e-bikes be held negligent if it is sold is without the appropriate label or such label is removed prior to sale? Who is ultimately responsible for relabeling any speed-modified e-bikes – the manufacturer, distributor, retailer, and/or consumer? If the answer is the retailer or the consumer, will labels be readily available from the manufacturer and distributor, and at what cost? Do the relabeling requirements apply to resold or used e-bikes as well? These are all questions that state and local legislators and law enforcement will need to tackle which could potentially have significant litigation, insurance and operational costs to all parties in the supply chain, including the end consumers.

There are other areas in need of clarification as well either because the legislation is silent on the issue or the legislation itself does not adequately protect the interests of all parties involved. For example, most states have implemented helmet requirements for individuals operating Class 3 e-bikes. Illinois, however, has no helmet requirements for e-bikes. Considering the minute differences between the three different classifications of e-bikes, it is interesting that there is no helmet requirement for all e-bikes considering the power, electricity and speed of these vehicles? Several states, including Colorado, Arkansas and Illinois, are silent as to whether e-bikes may be used on off-road trails. A very popular riding and racing segment as evidenced the last two years by Sea Otter, a popular cycling and outdoor industry tradeshow held every spring in California, is e-bike mountain bike racing where this trail use issue would be very applicable. And while some of that trail use will most likely be covered under federal law for national parks and other federally-owned property, the fact that the legislation is silent on trail use may pose significant challenges for enforcement, until resolution by the courts or clarification by the legislature. Finally, some states fail to identify any consequences for violations of the rules surrounding e-bikes sales and use (e.g. Arkansas). Without such deterrents, what incentives are there to comply?

As with most legislation, the legal issues referenced above will evolve over time. The fact that the majority of the legislation from state-to-state is harmonized bodes well for future alterations to the current law, considering that most manufacturers, distributors, retailers and consumers enjoy the many benefits of cycling across state borders. Ultimately, such revisions will most likely be warranted as e-bikes continue to grow in popularity. AS a fellow cycling enthusiast, I am excited to see where the industry goes. Be sure to track my future state-by-state e-bike legal updates to stay on top of the latest developments.

For a more detailed, state-by-state analysis of current e-bike legislation visit here.