"Federal safety regulators yesterday settled a contentious two-year-old case that charged Daisy Manufacturing Co. with making defective high-powered air rifles.

A split Consumer Product Safety Commission voted, 2 to 1, after Commissioner Harold D. Stratton changed his vote, to drop its demand that Daisy recall 7.5 million BB guns. Daisy agreed to include more and bigger safety warnings on its products as well as launch a $1.5 million, five-year educational campaign. That was virtually the same as two earlier offers that the commission had rejected by 2 to 1 votes.

The lawsuit was filed by Stratton's predecessor, Democrat Ann Brown, two years ago in her last days as commission chairman. It alleged that some high-powered Daisy air guns were defective because BBs could become lodged in the magazine, even though the rifle appeared to be empty. The commission said it knew of at least 15 deaths and 171 serious injuries from the alleged defect, about 80 percent of them involving children under the age of 16.

Yesterday's settlement was opposed by the commission staff, sources said, and triggered a scathing dissent by the sole Democrat on the commission, Thomas H. Moore, who accused his colleagues of being more concerned about Daisy's financial health than the safety of its products. "The bottom line is that we are not the Business Protection Agency," he wrote.

Stratton said he changed his vote after reviewing evidence and Daisy's finances. Because the case was being heard by an administrative law judge, the commissioners were barred from seeing any evidence unless the company waived the confidentiality restrictions, which it did last month

Stratton said he then met with Daisy officials and CPSC staff members handling the recall lawsuit and concluded that "a settlement would provide certain immediate benefits to consumers, which they would not receive if Daisy becomes insolvent or this litigation drags on for years."

Moore called the process "clearly inappropriate."

Joining Stratton was Commissioner Mary Sheila Gall, who has consistently voted for Daisy in the agency's previous actions.

The suit was prompted by a private lawsuit by the family of Tucker Mahoney, a Pennsylvania boy who was permanently disabled in May 1999 after his best friend accidentally shot him in the head with a Daisy 856 model rifle -- two days after he received the gun for his 16th birthday. Daisy settled the suit in 2001 for $18 million.

Mahoney suffered major brain injuries, remaining in a nearly vegetative state until last month when he died, his attorney, Andrew S. Youman, said yesterday. Youman criticized the settlement: "Corrective action is the heart of any remedy, and it's been ripped out in a backroom deal that appears to have been put together in violation of the procedural rules."

Joe Murfin, Daisy's vice president for marketing, said the company settled because of the cost of fighting the case. He said, "Historically, it's been unsafe behavior -- misusing or carelessly using [the air rifles] that has been at the root of the incidents." He said the company also will seek a voluntary industry standard to deal with the loading of BBs, as well as the appropriate age of the user of high-powered air rifles.

According to Moore's dissent, the CPSC staff weighing the case was opposed to any settlement "unless it included an offer of corrective action to address the BB-lodging defect."

The CPSC is barred by law from regulating guns, but BB guns are not considered firearms because they use air instead of explosive material to propel projectiles.

Although Daisy had told the commission its financial health was precarious, it declined to disclose its revenue or profits because it is privately held. But Daisy attorney Aaron Locker said the prospect of recalling 7.5 million guns and replacing them with new ones, which cost from $39 to $69 each, could hurt the company.

Moore was skeptical. The education campaign promised by the settlement "is not much different than the one Daisy already sponsors and has sponsored for a number of years" he said. "Why should we expect this campaign to work any better than the past one?"" (Caroline E. Mayer, The Washington Post, November 15, 2003)