Monday August 27, 2012

Maxfield & Oberton Raises Six Defenses to CPSC Magnets Complaint

By Sean Oberle

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September 18, 2012

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Maxfield & Oberton August 14 outlined six defenses to CPSC’s administrative complaint. The agency’s July action (PSL, 7/30/12, p. 1) seeks to force the firm to recall its Buckyball and Buckycube products; it also is considering a notice of proposed rulemaking (NPR) (PSL, 8/ 13/12, p. 1) that effectively would ban the products.

The company’s first defense involves 53 points directly responding to allegations in CPSC’s complaint. The company summarized that section by explaining, “M&O denies all allegations that its products are defective or create an unreasonable risk. In fact, we have gone out of our way to minimize any risk through our CPSC-reviewed safety program.” The response document is at www.getbuckyballs.com/cpsc-response.

In its second defense, the company rejects that its products are defective or substantial product hazards, writing, “[T]here is no fault, flaw, or irregularity that causes weakness, failure or inadequacy in the form or function of either Buckyballs or Buckycubes, nor is there and inadequacy or flaw in the contents, construction, finish, packaging, warning or instructions of either Buckyballs or Buckycubes.”

The third and fourth defenses respectively are “There is no applicable rule, regulation, standard or ban with which Buckyballs or Buckycubes fails to comply” and “The Complaint is arbitrary and capricious as it is not based on any reasonable assessment of risk and is facially inconsistent with the CPSC’s own mandatory standards.”

The company’s fifth defense is that CPSC itself “contributed” to the problem by failing to act against “major retailers that the CPSC staff knew were advertising, marketing, and offering for sale high-powered magnet sets, including those of Maxfield and Oberton, as appropriate for children under the age of 14.”

In its sixth defense, the company asserts that it submitted a corrective action plan to CPSC the day before the agency filed its complaint and that “CPSC staff did not fairly and adequately consider, and the Commissioners may not have been made fully aware of” it. The company added that agency staff included elements of that plan in the NPR.

In a press release, CEO Craig Zucker said, “We are more emboldened than ever to continue fighting this egregious action.” He noted that “almost 99%” of thousands of comments the company has received from the public support it.