Zen Magnets Wins a Very Rare Victory Over the Consumer Product Safety Commission

CPSC order that effectively bans small toy magnet balls overturned by 10th Circuit Court of Appeals over data that the Court finds out of date and overly uncertain.

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The Consumer Product Safety Commission (CPSC) overstretched its legal powers in 2014 when it essentially banned a class of small round toy magnets from the market, declared a 2-1 decision last week from the U.S. 10th Circuit Court of Appeals.

The case involved a seller of such balls, Zen Magnets, suing over the safety standard imposed by the agency.

Zen Magnets website

The background, with summations and excerpts from the decision:

These small magnets have been sold by various companies in the U.S. since 2009, and if you swallow more than one of them they can clamp internal tissue between them with dangerous results.

Federal law as of 2008 barred the sale of such magnets "marketed as a plaything" to children under 14, but permitted them as "hobby, craft, or science kit-type" applications for children over 8, with specific restrictions designed to "ensure that permissible magnets are either large enough to discourage ingestion or weak enough to avoid tissue strangulation upon ingestion."

Those restrictions are known as the "toy standard," and CPSC tried to ensure no one sold such magnets to kids in violation of them. In 2012 CPSC leaned on the 13 companies then selling them to report on safety data, and by July 2012 the agency:

had negotiated agreements with ten of those companies to cease importation and distribution of magnet sets. Commission staff then initiated administrative complaints against the remaining three companies (including Zen), arguing that their magnet sets constituted "substantial product hazards" that must be prohibited and recalled because they failed to comply with the toy standard and/or contained a product defect.

The "toy standard" was then essentially extended to all sale of such magnets by CPSC in a 2014 rule. Zen Magnets petitioned the Court to review the validity of those safety standards, after labeling and instructing their retailers to keep them from prohibited ages.

To decide on the legality of the rules, a judicial balancing test has to be involved, considering the "degree and nature of the risk of injury" as well as the "probable effect of the rule on the utility, cost, and availability of the products; and any means of reducing the risk of injury while minimizing adverse effects on competition or other commercial practices."

In the opinion of the 10th Circuit panel this particular CPSC regulation falls short; CPSC's

analysis neglected to address critical ambiguities and complexities in the data underpinning the Commission's findings as to (1) the degree of the risk of injury caused by magnet sets, and (2) the public's need for the sets and the rule's effect on their utility and availability….As a result of those omissions, the Court is unable to ascertain whether the Commission's findings meet the substantial evidence standard—let alone to proceed to the next step of reviewing the Commission's balancing of the safety standard's costs and benefits.

The CPSC is legally required to rely on factual findings when promulgating such regulations, and the 2-1 opinion of the 10th Circuit finds that those were "incomplete and inadequately explained."

Specifically, the CPSC's injury time frame, January 2009-July 2012, was from before their own efforts had driven 10 of the 13 largest companies out of the market.

Thus their estimate of 900 magnet ingestion injuries costing $28.6 million overstated the more current situation, when in "the eighteen months following June 2012, the estimated number of emergency room visits due to magnet sets dropped by about 100 incidents a year…..the Commission estimated that an average of only 580 emergency room-treated injuries per year occurred during the five years from January 2009 through December 2013."

Essentially, enforcement of the "toy standard" seemed as if it was already greatly reducing the incidents; those larger numbers are from CPSC estimates, but in terms of actual incidents reported to the agencies, those "receded from 52 in 2012, to 13 in 2013, to only 2 in 2014."

Thus:

The Commission's benefits findings, however, do not adequately account for the reduced injury rate (and therefore reduced need for a new standard) resulting from its recent apparent enforcement of the existing safety standard addressed specifically to toys and children. In general, where there is a known and significant change or trend in the data underlying an agency decision, the agency must either take that change or trend into account, or explain why it relied solely on data pre-dating that change or trend….Here, the downward trend in injury rates is obvious, and appears to speak directly to the question of whether the new rule is "reasonably necessary."

But that wasn't the 10th Circuit panel's only problem with CPSC's decision-making:

The second problem….arises from the imprecision of the injury report narratives. The Commission used a keyword search to identify magnet set-related injuries within a representative sample of emergency room reports….To the resulting injury count, the Commission applied a cost model to extrapolate the overall number of injuries nationwide….

We take issue not with the Commission's methodology, but rather with the degree of uncertainty the Commission condoned when implementing it: According to the Commission, ninety percent of the injury reports on which it ultimately relied only "possibly" involved the subject magnets sets….Almost anything is "possible." Therefore, the Commission's finding that 90% of the predicate injuries only "possibly" involved magnet sets provides the Court with little guidance as to where, on the spectrum from ninety to 900 annual injuries, the real injury rate lies…..

While the Commission is certainly free to rely on the emergency room injury report data set, it may not do so in a way that cloaks its findings in ambiguity and imprecision, and consequently hinders judicial review. We leave it to the Commission to determine whether its methodology and data set can in fact support a higher standard. We find only that the Commission's benefits statistics must instill in the Court a greater degree of confidence in their accuracy than is currently present here….

For those, and other reasons detailed in the full decision, the Court says "we VACATE and REMAND the Consumer Product Safety Commission's magnet set safety standard…to the Commission for further proceedings consistent with this opinion."

A Zen Magnets press release claims that this is "the first time a CPSC rule has been vacated in what appears to be 33 years."

Another Zen Magnets press release announces that they are ready to take orders again, and compares their product to the much-more-dangerous-to kids toy balloon. Zen Magnets owner Shihan Qu says, "I'd rather use our resources to fight alongside the CPSC for successful educational and awareness campaigns focused on consumers and medical professionals."

Zen Magnets is fighting with CPSC on many fronts, including two different suits over a previous recall of the products, and a full summation of the status of all those battles can be found at the bottom of this statement from the company.

ConnPIRG is very much against any loosening of the legal availability of these magnets.

My initial reporting on Zen Magnet's legal fight, loaded with links to more information and background on the legal war against these magnets. When reporting that story, Shihan Qu told me "I want the CPSC to LOSE. I really really want them to lose. They need some humility and to be reminded of the standard of liberty in this country."

For now, they have lost, and Qu has won.

ReasonTV also reported on the CPSC's war on these small magnet balls back in 2012:

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  1. I got an email yesterday afternoon from the seller that these were available again.

    “The first 5,000 orders will arrive before Christmas.”

  2. Finally, somebody is doing something about this awful magnet swallowing epidemic.

  3. But muh rational basis review!

    1. “Calling All Patriots! We Just Found Your New Favorite Clothing Line.”

      Featuring a girl with tits each bigger than her head.

      “You may like”, indeed…..

    2. That applies only to the legislation, not the regs.

  4. Every single person quoted in that ConnPIRG report is hideously ugly.

    Laura MacCleery, Vice President of Policy and Mobilization for Consumer Reports, said, “Simply put, this rule exists to save children’s lives. We have seen too many cases where young children swallowed these tiny yet powerful magnets masquerading as adult products and suffered serious medical consequences ? even death.

    You know who else suffers ‘serious medical consequences,’ Laura? You! Jesus Christ! You’re like the Platonic Form of Type-2 Diabetes made manifest in flesh. You should be more concerned with what’s going down your gullet than creating a moral panic over hypothetical magnet swallowing.

    1. Benard P. Dreyer, MD, FAAP, President of the American Academy of Pediatrics, said, “As pediatricians, our number one goal is to keep children safe. High-powered magnets have caused unnecessary surgeries, debilitating injuries, irreversible gastrointestinal damage and other lifelong health impacts in infants, children and adolescents.

      Holy. Fucking. Shit. With all due respect, Dr. Dreyer, but I believe the number one goal of pediatricians is to treat and cure disease in children. It’s the number one goal of parents, who may or may not be pediatricians, to keep children safe. And the vast majority of them reach adulthood without serious injury despite the fact that neither of their parents have a medical degree.

      1. Nancy Cowles, Executive Director of Kids in Danger (KID), said, “Children have died after ingesting these small powerful magnets ? and scores of others face life-altering injuries.

        What the hell is it with morbidly obese White women and Black men and being vicious moral scolds?

        1. Rachel Weintraub, Legislative Director and General Counsel at Consumer Federation of America, said, “We are profoundly disappointed by this decision. Without a doubt, this decision puts children at risk. The hazards associated with rare earth magnets are severe and hidden. Children suffer severe health consequences that could result in death or lifelong health problems. Caregivers cannot always identify when specific small magnets are missing nor that their child ingested them.

          I think I’ve stumbled across an Iron Law.

          1. Ed Mierzwinski, Consumer Program Director, US PIRG, said, “The facts on risks to children and teens posed by small, powerful magnets are very clear. The CPSC rule was designed to protect kids the only way it could: by banning an inherently dangerous product.

            Yes, the magnets just jumped into the mouths of those innocent children. Is that the punchline to to an extended Polish joke?

            I’m done.

          2. She wants to eat all the magnets herself?

      2. You Sugar Free’d the link.

        1. Well if you really want to see a bunch of ugly people:

          Here

          You

          Go

          1. Crusty would.

      3. Benard P. Dreyer, MD, FAAP………said, “As pediatricians, our number one goal is to keep children safe.

        In other words, if your title includes FAAP, safety keep you Faappin’

      4. Do you know how tiny these balls are? If a child goes to another child’s house with an older sibling who has these tiny magnetic balls, and the young toddler happens to find just a few of these tiny balls in the corner of the floor (since a child’s brain if far superior to identifying even the smallest details and objects), and swallows just a few faster than you can even turn your head, the child can be injured. Do you have small children? Have you ever been responsible for watching multiple children at once? Even the biggest helicopter parents can only do so much, and kids are stealth and sneaky. I know this might blow your mind, but occasionally we do have laws that genuinely have people’s best interests and want to protect the youngest and most vulnerable. I’m not a fan of most regulation, but I make an exception for child safety, especially when we cannot count on every single parent to be educated and make good choices. People can drink what they want, do whatever drugs they want, as long as they don’t harm others. Young children absolutely depend upon others to make those choices for them, since they are incapable of doing so for themselves. Should we remove regulations and laws for car seats and leave it up to each parent whether to use them? Should we remove legislation requiring car manufactures to issue safety recalls or install airbags?

        1. When the state of Maryland banned traditional crib bumpers due to the risk of asphyxiation and strangulation (and an increase in SIDS risk), and education of SIDS risks and safe sleeping environment began, more companies formed that produced alternative products, and most of those businesses were small businesses that can now compete with the Pottery Barn and the large infant bedding manufacturers. Breathable crib bumpers. Rail covers. There is a huge industry for safety and innovation in baby/toddler products. When safety regulations are passed and recommendations made public, there are new products that flood the market. Every 2 or 3 episodes of Shark Tank has another product for kids. That is actually great for entrepreneurs and for free markets. Many regulations can be classified as the overstepping or intrusion of government, or excessive red tape that hinders free market, but not all regulations are bad. Isn’t that the distinction between libertarians and anarchists?

    2. Every time you read the phrase “consumer advocate”, think “government advocate”.

    3. If those kids are so stupid or their parent too lax to prevent swallowing anything but food, then Darwin rules and when the tide goes out those in the shallow end of the gene pool lose.

  5. YES! First magnets, then we will be on our way to legal Kinder Surprise!

    1. Surprise! The toy is a magnet!

  6. Man, I’m real pleased.
    Wish I could post a photo, but right here next to the screen is the set of 8″ spheres I bought a year or so ago to help with the legal fees.
    “You can pry my cold, dead hands off my rare-earth magnets, bitches!”

    1. 8″ spheres

      Well, more like “8each 1″ spheres”

      1. We have nothing left to sphere, but sphere itself.

        1. Narrows Gaze.

            1. Hey, you can’t be here 24/7.

  7. Damn these courts for thwarting our noble regulatory agencies in their sacred mission. Why even have judicial review? Agencies are the experts! In fact, why not eliminate Congress and the judicial branch but retain the presidency? Think about it: don’t you wanna be ruled by experts who fucking love science?

  8. WTF are these “magnet “ages”. My older brother taught me how to scavenge magnets from discarded TVs and other analogue electronics before I was forced into public school. Magnets were a favorite toy since I was a toddler. Don’t swallow magnets, kids.

    1. When I was a yute (onions in the belt and all that), I and every kid I knew has a stash of Hg, which we would roll around in our hands, coat dimes and other ‘cool stuff’.
      But we also got chemistry sets with enough stuff to make GUNPOWDER. And we sure did!

      1. I can only imagine what they would think of the Radio Shack electronics kit I had in fifth grade.

        1. complete with lead-tin solder

          1. [Pearl clutching intensifies]

    2. Of course the magnets we children played with back in the late ’60s were much less powerful than the rare earth magnets of today.

      1. I hear rare earth magnets can be up to 90% magnet. The magnets we played with as kids only had about 30% magnet tops.

  9. You know who else was insecure about balls?

      1. It’s Himorhermler, shitlord.

      2. A bridge in southeast Asia?

    1. The Wolfman from Monster Squad?

      1. +1 The Wolfman doesn’t have nards.

    2. Cinderella?

  10. Wow, Zen had to have some steel balls to take on the CPSC.

  11. Trump already paying dividends, bitches.

  12. You take libertarian moments where you can find them, even if it’s under a set of very tiny balls.

  13. OT: Leftwing conspiracy theorists make me laugh:

    [Poster 1] Anyways, all modern day medical/research science is quack science anyways.

    [Poster 2] Animal Research and Testing, Vivisection, is scientific fraud. Information deduced cannot be extrapolated across species. Thus making it necessary to relearn once approval for humans. Enter side effects that are more harmful, making the human the guinea pig by being induced by the research establishment, FDA that the medicine was tested, making it acceptable.

    [Poster 3] We survived for millions of years on natural medicine. We don’t need pharmaceuticals. More people die every year from prescription pharmaceuticals than anything else.

    1. This one might be my favorite:

      [Poster 4] Their rationale is based on the ingredients and they KNOW the product is harmful . . so they use cruelty for results they likely manipulate – for their stamp of approval.

      And it has two likes! English, motherfucker, do you speak it?!

      1. I can’t cite it right now but:
        ‘They use that stuff kills rats! What do you think it does to HUMANS?!’

        “Warfarin
        Generic Name: warfarin (WAR far in)
        Brand Names: Coumadin, Jantoven”
        https://www.drugs.com/warfarin.html

        1. What do you think it does to HUMANS?!’

          Probably gets you really high.

          i encourage those people with kooky beliefs about medicine. the sooner they expire, the better.

          the part i can’t deal with are their idiotic beliefs about the profit-motive. they don’t seem to recognize that everything in modern society that we consider ‘civilization’ was brought about because of it.

          1. It’s also amazing that they somehow don’t notice that these people selling them ‘homeopathic’ and ‘natural’ and ‘herbal’ medicines are raking in huge profits — but I guess they’re really only in the business to help others.

          2. Nah, just thins your blood. I’m on it since I had open heart surgery. My wife is a nurse and didn’t fill me in on the joke that everyone calls it rat poison until I had been taking it for months.

    2. Poster 3, if you ever get a bad infection, please refuse your antibiotics. After all, you don’t need them.

      And you’ll be helping science by giving another data point for Darwin!

    3. “[Poster 3] We survived for millions of years on natural medicine. We don’t need pharmaceuticals. More people die every year from prescription pharmaceuticals than anything else.”

      Oh cool – so that means this person supports the deregulation of medicine, which would allow people to promote more “natural” cures rather than relying on the limited offerings of Big Pharma and mainstream medical science? Right?

  14. OT, “At least we’re no Oakland!”

    The new Oakland mayor campaigned on a platform including not one damn taxpayer penny for any new sports stadium. Period.
    Well, there must be something in the mayors office which causes brain damage:
    “Oakland stadium deal would put up $200M in public money”
    http://www.sfgate.com/bayarea/…..643358.php
    The Davis family (father and son) have played the Oaktown gov’t like a fiddle; the city is on the hook for some millions spent to get the Raiders back from LA.
    If I were an Oakland taxpayer, I’d be in front of the mayor’s office tomorrow morning with some hot tar and a bag of feathers.

  15. I’m still mad about the microbeads.

    The facewash I used had them. If I break out after I run out of my stockpile I’m gonna murder more dolphins than the microbeads ever could.

    I’ll murder some polar bears too, for good measure.

    Those animal mother fuckers.

  16. Buckyballs are interesting out of a shotgun.

    https://www.youtube.com/watch?v=4Ib6h1lwsH0

    Slide to 3:50 to see it in slo-mo. It looks like they stick closer together like a choke effect.

    P.S. “Why shoot magnets out of a shotgun?” is a ridiculous question. The only appropriate answer is, “Why NOT shoot magnets out of a shotgun?”

    1. This channel and Demolition Ranch have probably shot every possible thing out of a shotgun by now.

      Also, it looks like every munchkin favorite type of “special ammo” in cyberpunk games and such would probably have sucked in real life.

      And if some kind of common scrap (nails, razor blades, etc.) was that much better than buckshot, everybody would already be using it.

  17. These small magnets have been sold by various companies in the U.S. since 2009, and if you swallow more than one of them they can clamp internal tissue between them with dangerous results.

    These small bottles of bleach have been sold by various companies in the U.S. since like forever, and if you swallow more than one of them they can damage internal tissue with dangerous results.

    1. I see we both have an oral fixation, Rich.

    2. Small Bottles
      Bottles of Bleach
      Various Companies
      Like Forever
      Swallow More
      Damage Internal Tissue
      Dangerous Results

      Band
      Band
      Band
      Album
      Album
      Band
      Album

      1. I saw Various Companies open for Rare Earth, Wind and Fire.

        1. Me too! Hinkle Fieldhouse in Indianapolis, October 1975. Various Companies played their hit “Peel A Banana” as the encore. The crowd went nuts.

          1. Fuckin’ magnets, how do they work?

    3. No one is selling bottles of bleach to children.

  18. So the threshold is anything that I can fit in my mouth can’t be strong enough to cause tissue damage. Only a bureaucrat or lawyer could argue that with a straight face.

    1. you know who else could fit a lot in their mouth?

      1. This chick I met in Gomorrah?

        1. Deez nuts.

      2. Skankhunt42?

  19. straffinrun – the Rogan interview with Jordan Peterson was really good.

    1. Nice. Watching an academic call out the Marxists on campus, tell them to GFT and then dare them to jail him is not something that happens everyday. No Reason coverage I’ve seen.

      1. Here’s the Rogan interview.. You may want to check out the debate he had last week at the U of Toronto first here.

  20. via Instapundit

    NPR vs their Boogeymen

    Those darned racists keep talking back! Solution = Stop letting them respond

    Recently, NPR Ombudsman Elizabeth Jensen proposed that the network no longer permit conservatives to be interviewed live on-air, following a Morning Edition interview with Steve Inskeep in which Breitbart senior editor Joel Pollak responded forcefully to charges against Bannon as a “white nationalist”

    You’d maybe think the left might start to realize that their ‘one-size-fits-all’ rhetorical methods of “Calling everything Rape” or “Calling everyone a racist” or “Blaming everything on Russia” etc…. that ‘more of the same’, in larger doses, with more hyperbole and finger-pointing, will somehow do the trick? isn’t working. and isn’t going to work.

    All it does is make “the already-true-believers” feel more secure about themselves. It just makes their ideological enemies more furious and motivated… and the non-ideological middle just gets exhausted and votes against them *just to make them shut the fuck up*

    1. I’m sure this will work just as well as news sites killing their comment sections to stop randos debunking their bullshit and breaking their circlejerk internet trolls spreading hate speech and fake news.

      Also, defund this fucking dinosaur already.

    2. You also have the people that say, “Well, I just want to keep my opinion to myself.” That ain’t good enuf! Silence is oppression. If the pantshitters really think forcing the squishy middle to choose sides is going to net them a majority, they’re nuts.

      1. If the pantshitters really think forcing the squishy middle to choose sides is going to net them a majority, they’re nuts.

        yeah, that’s basically the point i was making below.

    3. Further =

      if in their demented minds… they believe that this “tar the right as irreparably racist”-strategy is their key to ‘winning the future? that the left will be guaranteed all the youth and all the minorities for-ever and ever because anyone with a red-tie will be assumed to be ‘not cool’ with Transgenders and poor mexicans?….

      …they don’t seem to have noticed that these minorities are not really very impressed.

      All those race-riots in the last 2 years? Where did they happen? I’ll give you a hint = not in places where there are a lot of republicans

      And i think even people who’ve read scott alexander’s “you’re still crying wolf” piece don’t actually get the implicit point of it yet. Its not *just* that the boogeyman they’re constantly crying about doesn’t exist. That’s not the moral of the “Never cry wolf” story.

      The moral is – that every time you do cry wolf, and it turns out you’re wrong? You lose more and more of your credibility.

      i imagine the people who sell CAGW might eventually start to realize this as well.

      1. People are compassionate and uncaring. Both have a limit and I prefer the Aristotelian mean. Guess that’s why it looks like I’m jumping from side to side. It only looks that way to ideologues, however.

      2. Or they should at least go with the Cardassian interpretation of the Boy who Cried Wolf. Never tell the same lie twice.

    4. The establishment has gone full Principal Skinner. “Are we out of touch? No, it’s everyone else who’s wrong.”

    5. because it fucks with their ability to creatively edit to fit the narrative when it’s live.

  21. God Damn these powerful magnets. I can only hope that one day, science can quantify it exactly, but that day is not today,

    1. Maybe Trump can appoint the ICP to as his science advisors so at some point, someone can figure out how magnets work.

  22. Some balls are held for pleasure, and some for fancy dress
    But when they’re held for pleasure they’re the balls that I like best
    My balls are always bouncing, to the left and to the right
    It’s my belief that my big balls should be held every night

    NSFW

    1. Some balls are held for *charity*

      1. And some Charitys hold balls.

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