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Monday August 23, 2021

Zen Recall Was Nine-Years in the Making – CPSC Pivots to E-Commerce

CPSC, with little fanfare, August 17 announced the mandatory recall of some 10 million individual magnets sold mostly in sets by Zen Magnets. Rather than focusing on the long-running effort – begun in 2012, some nine-years ago – to force recalls by various companies, the agency's press release ( highlighted its growing attention on the duties and abilities of ecommerce sites.


Acknowledging the aid of some ecommerce sites in sending safety notices to consumers "when the magnet firms were not responsive," CPSC offered this comment from Acting Chairman Robert Adler:

"When consumers see these products marketed for children on trusted e-commerce sites, many of these items sold by foreign firms, consumers assume they are safe. But the reality is, these magnets can cause lifelong injury, or worse, to kids. That's why it's so important that e-commerce sites not allow these products to be sold to kids and why kids are safest when these products are not in the home.”
"The sad truth is we’re playing whack-a-mole with these dangerous products, and each one we miss could have grave consequences for young children and teens. But until we can get these products off the market entirely, we just have to be vigilant."

Indeed, CPSC's focus now is on ecommerce sites, especially with an administrative suit to force Amazon to recall certain items offered by third-party sellers. CPSC contends that Amazon meets the definition of a CPSA-regulated "distributor" (PSL, 7/19/21) while Amazon insists that it simply offers third-party logistical services (PSL, 8/16/21).


Zen had been the last holdout against recalls, mounting long-running resistance to CPSC's effort, which began with an administrative suit to force a recall. Much of the pushback evaporated with a ruling a year ago (PSL, 8/10/20) when a 10th Circuit appeals court panel reversed a lower court's finding of bias in statements by Adler during CPSC members' oversight of the administrative action.


Most seller of magnet sets settled with CPSC, but Zen persisted. An administrative law judge ordered a partial recall by Zen in 2016 (PSL, 4/11/16). A CPSC staff appeal led to a CPSC commissioners' order for refunds and other steps in 2017 (PSL, 11/6/17). That led to the court case with the now-reversed bias findings about Adler (PSL, 3/5/18).


The only recent document in CPSC's docket on the Zen case is a July Notice of Withdrawal from an attorney who represented the company (