Magnets Rule Passes 4-0; Commissioners Address Opposition

In voting 4-0 to pass a rule to effectively ban small, strong magnets sold as amusements, CPSC members addressed arguments opponents have leveled against the regulations. The missing voter was Commissioner Ann Marie Buerkle, who earlier recused herself from the proceedings (PSL, 9/14/14) over concern about their being appropriate when CPSC had other legal action against the products. Issues addressed by the panel included:

Destroyed Businesses/Financial Loss: Chairman Elliot Kaye acknowledged there was loss, both financial and emotional, on both sides, juxtaposing the victims of the products and victims of the regulation. He called the meeting a “solemn occasion” due to hardships all around, which he noted included the continued healthcare costs of many of the victims.

His tack included reading a letter from the aunt of the only child, Annaka Chaffin, known to have died after swallowing magnets as well as a portion of a recent email from the owner, Shihan Qu, of the only remaining major distributor, Zen Magnets. Both emotionally-driven correspondences touched on the negative effects of the situation on the writers. The child’s family members were in attendance, and Kaye thanked them for their difficult presence. He also wished Qu well, expressing hope that the entrepreneur again would find the “childhood wonder” that led to his business.

Regulatory Overreach: Commissioner Robert Adler acknowledged that CPSC’s approach to the hazard evolved beyond initially-negotiated solutions. He asserted that agency staff had acted “in good faith” and with “the best of intentions,” but the initial approach – which included limiting marketing to adults – did not abate the incidents involving children. He said this was due to the products’ attractiveness to children regardless of intended users. He noted staffers’ descriptions of magnetism as being “magical” to children and of the products as being attractive visually (shiny), aurally (soft clicking), and tactilely (smooth).

Adler also reiterated his previously stated disagreement with Buerkle’s contentions about conflicting actions, repeating the division between this action (ban of future sales) and the ongoing legal action (recall of past sales), covered by different parts of CPSC rules.

He further rejected arguments that CPSC should have passed this rule before trying to force recalls. He said that placing action on existing hazardous products after action on future risks is like going out to buy a smoke detector when the house already is on fire.

Robinson addressed statutory criteria. She said the action is reasonable because the data show a high number of incidents; it is in the public interest because it is rare that the medical community comes to the agency with such strong feelings about a product; it involves an appropriate cost- benefit balance as the injuries have caused very expensive injuries, many of which will require lifelong treatment; and it takes the least burdensome route because CPSC tried the “adult only” approach and the risk is difficult to convey to medical professionals “let alone the public in general.”

Parental Responsibility: Adler said he did not agree with those who would “wash their hands” of the effects on children by citing intended use and consumer freedom. He said that regardless of parental responsibility, it is not adults but children who are the victims. He pointed out that CPSC’s statutes empower it to target misuse.

In this and recent meetings on the rule, staffers and commissioners have stressed the inability of caregivers to adequately protect against the danger, frequently using words like insidious and hidden hazard. Indeed, though CPSCers did not make this comparison explicitly, discussion sometimes resembled that of environmental hazards as opposed to product safety risks, including the ability of the products to magnetically “hitch” rides into houses without anyone realizing it to be deposited where children could find them.

Data: Robinson said the care that staff took in categorizing events likely led to underestimating the number of incidents as opposed to claims of exaggeration. She pointed to staff’s description (PSL, 9/15/14) of excluding incidents that did not include information like known brands or words like beads, balls, or BBs to describe the magnets.

Future Action: Commissioner Joseph Mohorovic’s reaction did not address criticisms but focused on two issues for CPSC to address. First, he expressed concern about similar magnet sets, like jewelry, not covered by the rule, saying, “I anticipate and urge the agency not to view this rulemaking as the final step in mitigating this hazard, but rather one element of an overall risk-management strategy.” Second, he pointed to the need for CPSC to acknowledge its limits due to resource constraints. He called for the agency to “pursue every viable option to leverage our external stakeholders’ data for effective and timely market surveillance.”

Industry Reaction: Qu issued a statement criticizing most of the arguments made by the commissioners as well as making additional statements against the rulemaking. He did express appreciation for Kaye’s comments directed at him but said continuing to follow his dreams includes opposing CPSC action. He noted his intent to fight the rule, saying he would need to hire an additional lawyer but his arguments would be similar to those in the recall lawsuit. He said he hoped increased sales would help pay his legal costs.