Magnet maker wins court ruling despite injuries to children

Posted Dec. 05, 2016, at 1:45 p.m.

In 2012, the Consumer Product Safety Commission issued a rule banning the sale of sets of small magnets. In November, the company that defied the agency won a federal appeals court victory; the firm’s website trumpeted, “Ban cleared. Game on.”

The Consumer Product Safety Commission’s action came after reports of injury to some children who swallowed the powerful neodymium (rare earth) magnet balls. If they ingested more than one, children were at risk of having the magnets attach and tear internal tissues or organs. Surgery sometimes was needed to remove the magnets.

Most distributors heeded the urgings of the group to stop selling the magnets, despite the warning labels stating that the toys were meant for adults and not children. One manufacturer — Zen Magnets of Boulder, Colorado — refused first the urgings and then orders to stop selling magnet sets. It did so with the backing of lots of consumers, who liked the variety of patterns they could form using the magnets.

The safety commission’s research in 2011 had found that some magnets sold in sets were 10 times more powerful than allowed in standards for children’s toys. Manufacturers insisted that the sets were for adults only, but the agency pointed to a rising number of emergency room visits involving children who had swallowed magnets.

A 2015 news release from the safety group blamed the death of a 19-month-old girl on magnet ingestion and estimated that 2,900 ER visits between 2009 and 2013 resulted from swallowed magnets. That news release focused on a federal judge’s order that Zen Magnets — at the time the only known seller of small magnet sets — to stop selling recalled magnets. The Justice Department had charged that Zen bought 917,000 magnets from another company, comingled them with other magnets and sold them after the other company issued a recall. Federal law bans the sale of recalled products.

In November of this year, a federal appeals court overturned the ban on magnet sales and sent the matter back to the Consumer Product Safety Commission. Two of the three judges wrote that they found the safety group’s emergency room statistics did not show that the agency rule “is reasonably necessary to eliminate or reduce an unreasonable risk of injury.” Those judges wrote that they had “no opinion” on the number of injuries that would support issuing a new safety standard.

The minority judge on the panel wrote, “In my view, the record sufficed for the Commission’s finding of an unreasonable risk of injury.” A commission spokesperson told us “the hazard from these small, powerful magnets has not changed” if more than one is swallowed. The agency is “assessing its options and takes the matter very seriously.”

While the safety commission assesses its options, magnet sales abound on the internet. After doing his victory dance, the founder of Zen Magnets called for education over regulation. Shihan Qu wrote on his company’s website that swimming pools and toy balloons are more dangerous than his magnets and that education is the key to the safe enjoyment of most products.

They may not be toys, but that’s how magnet sets may appear to little eyes. Qu agreed with many critics when he wrote, “… high powered magnets should be kept away from any mouths and young children who don’t know better.”

In the same article Qu wrote, “Instead of driving Zen out of business, and pushing production further from the CPSC’s field of view, I’d rather use our resources to fight alongside the CPSC for successful educational and awareness campaigns focused on consumers and medical professionals.”

Consumer Forum is a collaboration of the Bangor Daily News and Northeast CONTACT, Maine’s all-volunteer, nonprofit consumer organization. For assistance with consumer-related issues, including consumer fraud and identity theft, or for information, write Consumer Forum, P.O. Box 486, Brewer 04412, visit https://necontact.wordpress.com or email contacexdir@live.com.

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