Interpretation ID: 2511y
Pepper, Hamilton & Scheetz
1300 Nineteenth St., N.W.
Washington, D.C. 20036
Dear Mr. Bird:
This responds to your request for an interpretation by this office as to whether a portable back massage device capable of being used in an automobile and powered by the vehicle's electrical system constitutes a piece of motor vehicle equipment as that term is used in the National Traffic and Motor Vehicle Safety Act of 1966 (the Act). I regret the delay in responding to your inquiry.
The product you described in your letter consists of an inflatable cushion that conforms to the user's back and contains two electric massage units capable of massaging the upper and lower portions of the user's back. The device can also provide heat. It is designed for use either indoors or in a vehicle by means of an adapter which plugs into the cigarette lighter. When the device is used in a vehicle, it is simply placed on the seat, and does not require any additional installation, other than connection to a power supply. You have asked three questions about this device, which I have discussed below.
Your first question was whether this device would be considered an item of "motor vehicle equipment" within the meaning of the National Traffic and Motor Vehicle Safety Act? Section 102(4) of the Act (15 U.S.C. 1391(4)) defines, in part, the term "motor vehicle equipment" as:
any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle..... (Emphasis added.) Since the portable back massage device is not original equipment or sold for replacment or improvement of any original equipment, it would be included within this definition only if it were an "accessory." In determining whether an item of equipment is considered an "accessory," the agency considers the following two criteria:
First, when a substantial portion of the expected uses of a product are related to the operation or maintenance of motor vehicles, the product should be considered an item of motor vehicle equipment within the meaning of the Safety Act. Second, if the product is intended to be used principally by ordinary users of such motor vehicles, we would consider it to be an accessory.
Based on the limited information you have provided, I am unable to reach a conclusion as to whether the back massage device would be considered an item of motor vehicle equipment. However, I will explain the considerations the agency focuses upon when applying the above critieria to specific products.
We would determine the expected uses of a product by considering the product advertising, product labeling, and the type of store which retails the product, as well as any available information about the actual use of the product. We anticipate that products found to satisfy the first criterion will ordinarily, although not necessarily, be ones that are carried in a vehicle. For example, if the device is portrayed in advertising as being in used in motor vehicles, includes as a standard feature a 12 volt adapter enabling its use in a vehicle, and is sold through retail outlets specializing in automotive equipment and accesories, it would be more likely to be considered an item of motor vehicle equipment than a product which did not have these characteris- tics. In evaluating the second criteria, the agency looks at whether the product is intended primarily for the use of consumers, rather than by professionals such as automotive repair and service personnel.
Your second question concerned whether the back massager would be subject to the Federal Motor Vehicle Safety Standards (FMVSS). If the device is not determined to be an item of motor vehicle equipment, it is beyond the scope of the agency's authority to regulate it. Even if it is determined to be motor vehicle equipment, and therefore subject to other provisions of the Safety Act, there is no Standard applicable to this type of device.
With regard to your final question, we do not generally provide advice about the authority of other Federal agencies. However, if it is not considered motor vehicle equipment under the Safety Act, the Consumer Product Safety Commission may have requirements governing such a device. It is also possible the Food and Drug Administration might consider it to be a medical device subject to that agency's regulation. In addition, some States may choose to regulate such devices. I am enclosing an information sheet which describes the Federal Motor Vehicle Safety Standards program, and how to get copies of the standards and any other NHTSA regulation. If you have further questions, please contact this office.
Sincerely,
Stephen P. Wood Acting Chief Counsel
Enclosure
ref:VSA
d:6/5/90