CPSC Continues to Gamble Reputation in Magnet Ban, Stakes Grow

The 2008 CPSC Leadership (Robert Adler and Inez Tenenbaum) have tossed the old ways of the CPSC (Consumer Product Safety Commission) out the window and set a blazing trail of new precedents, especially in their expensive campaign to ban magnet sets typically used for art and education. The ethos of consistency and fairness earned by the agency in the previous four decades is heavily wagered in a play to expand regulatory powers.

The louder the CPSC blares danger alarms, the bigger the stakes get. If indeed a wolf is identified, the organization will be recognized and thanked. National poll results, article responses, rulemaking comments, and every other indicator of public opinion show scarce appreciation found for a new prohibition that wasn’t sought. Supporters of the ban claim the products pose a “hidden hazard”, and that increased incidents of magnet ingestion show consumers cannot reliably heed warnings, and a nation-wide all-ages ban is the only solution.

In recent events, the pot grew when the CPSC held a public hearing, though forgetting to invite any public. The hearing appeared to be an invitational meeting(0) in an effort to pass the controversial ban, with only the commission’s various advocacy groups (who supported the ban) in attendance. A full video recording of the meeting can be found here, where you will have the opportunity to see a doctor [Gastroenterologist Dr. Mark A. Gilger, M.D.]put magnets on a cupcake, and claim magnets look just like candy and are therefore dangerous.

Inez Tenenbaum and Robert S. Adler, gambling the agency's credibility at high costs.

Inez Tenenbaum and Robert S. Adler, gambling the agency’s credibility at high costs. Click for full cartoon.

The familiar arguments made at the October 22nd hearing by CPSC advocates, like AAP and NASPHGAN, mirror those submitted to the rulemaking comments a year ago. The meeting does pull back the curtain on how modern CPSC operates, with advocacy partners pushing forward with the grand purpose of saving lives in the manner of a foregone conclusion. A purpose apparently grand enough to distort dangers and misrepresent facts.

For example, half of the speakers in the hearing based their statements on a claim that surfaced one year ago, that there have been an “estimated 1700 deaths from magnet sets from 2009-2012” due to narratives in the NEISS database. The part they scandalously fail to mention is the lack of a control sample in their science. The same search applied to the 3 years (2006-2008) prior to magnet sets on the market reveals 94% as many recorded injuries. (1) To be clear: Using identical methedology, “magnet sets” caused nearly as many injuries in a period when “magnet sets” existed on the market as when they didn’t. Another example is that throughout the meeting, the terms “magnet sets” and “children’s toys” are used interchangeably, ignoring the fact that this rule greatly affects magnets that are not marketed as toys, and are not primarily used by children.

The position of pediatricians and gastroenterologists on the issue is perhaps morally defensible. Magnet ingestion is dangerous due to potential intestinal pinching. They want just to save lives. In the scope of their limited perspective they have seen an alarming rise of injuries in the past 10 years in their specialized medical field of pediatric gastroenterology. And it’s not their job to: compare relative risks, weigh industry/consumer effect, consider past policies, measure democratic opinion, or behave consistently. It’s plausible that the medical advocates were not aware of the abrogation of their arguments, as discussion is generally directed toward the commission, who then seemingly re-forwards all concerns to the archives. Dear Pediatricians and Gastroenterologists who are pro-magnet-prohibition and really believe in an all-ages nation-wide magnet ban, Savemagnets.com challenges you to an open and live debate on twitter.

Medical specialists and advocacy representatives can plead ignorance The same degree of moral defensibility can in no way be granted to the Tenenbaum-Adler regime of the CPSC, whose duty is to uphold the fairness, transparency and honesty of the federal agency. Some of the giant concerns that CPSC will ultimately need to address:
·That the assumption that warnings don’t work undermines past safety standards deemed acceptable by the CPSC and US Congress. Products more dangerous than magnets are effectively addressed with warnings, with no reduction of consumer rights.
·That the ban includes products that have not been demonstrated to pose the same risk as those which have been ingested. For instance, Zen Magnets LLC has never sold magnets as toys or compared them to toys. Nor are children the primary users of Zen Magnets.
·That over inclusive rules needlessly strangle commerce and innovation and are in non-compliance with EO 12866 1(a).
·That magnet sets are not the first consumer product that are poisonous if consumed and not poisonous if not consumed. Such products are already under jurisdiction of exsisting legislation like the PPPA.

“No man is good enough to govern another man without the other’s consent.” ~ Abraham Lincoln. Power is given from the people to the government, not the other way around. The matter of the ban was brought to the attention of PPP (Public Policy Polling) to conduct a national poll, who sampled registered voters in all 50 states. The results are utterly decisive: 88% opposition to a nation-wide all-ages ban on magnet sets is present in the US, margin of error of 3.5%. (2) If you, the reader, want a fun challenge, try to get the CPSC to acknowledge that this exists. It of course only hurts the odds of their gamble to have more attention drawn to nationally representative results which contradict the ban. Fun fact: PPP was the pollster that most accurately predicted the 2012 presidential election.

The Oct 22nd “public” hearing is a small addition to comments already on the magnet rulemaking record, which altogether has attracted a record breaking discourse. Of all total rulemaking comments ever received on the record by the CPSC, half of them (2,589 of 5,212) belong to the magnet set rulemaking. Of those 2,589 comments, 91% were against the proposal to ban sets of neodymium magnets. Parents, K-12 teachers, university professors and physicists unanimously stated that the power to decide should remain theirs.

The role of a CPSC commissioner is that of a judge, one which requires intellectual honesty: in which personal beliefs do not interfere with the pursuit of the truth, and relevant facts and information are not purposefully omitted even when such things may contradict one’s hypothesis. In the Oct 22nd hearing, Adler only asks questions that might progress the ban, never ones that might contradict his intent. “Is it possible that there have actually been more injuries than estimated?” (Almost certainly the opposite.) “I have in the past year or two received over 3,000 very angry emails… parenting the issue?” Followed by queries to gastroenterologists as if they were social science experts, dismissing three thousand email complaints faster than one can say “cognitive dissonance”. The “Cease Magnet Prohibition” petition has also yet to be acknowledged in any manner by the CPSC, with over 4,300 signatures.

Undoubtedly, Robert S. Adler would have never been promoted to CPSC commissioner if a public vote depended on it. If only democracy were so simple. Let’s recall that a year ago, when Robert S. Adler was notified that balloons are more dangerous and less useful than magnet sets, Adler responds, “Well, maybe we need to rethink balloons.” (4) Or, maybe, balloons (and trampolines and skateboards, which are also more dangerous than magnet sets in terms of ER Injuries and deaths) are fine when used responsibly. Perhaps it is Adler’s personal constitution that is the problem; incompatible with the essence of a country founded on appreciation of liberty and democracy.

The 2008 CPSC Regime’s gamble is about more than the nation-wide all-ages ban on magnet sets. Another tangibly brazen precedent is the CPSC’s use of administrative lawsuits against companies with no record of injury such as Zen Magnets LLC and Star Networks. The necessity of a lawyer on the part of a small business, is a minimum five digit punition on it’s own. Administrative Complaints are the first step in a Mandatory recall, and bring the batter before an administrative judge. Still, the individual lawsuits mediated by an external judge is more likely to end in a fair outcome, than CPSC rulemaking determined by commissioners who openly push advocacy and agendas.

As Denver’s Westword reports, “the most recent administrative complaint before the CPSC began targeting magnets dates back to 2001 against Daisy Manufacturing Company, which makes BB guns. As that complaint notes, there were cases of at least 15 deaths and 171 serious injuries, including brain damage and permanent paralysis caused by defects in this company’s powerline airguns. And of those most affected were children under the age of 18. Another action against Red Devil gas grills from the CPSC came after 44 reports of consumers suffering burns to legs, hands and fingers, including some instances of third degree burns after the grills collapsed during use.” (5)

Despite Senior Commissioner Nord’s protest, the newer commissioners (Inez Tenenbaum, Robert Adler) voted to launch three instances of the heaviest legal strike within the CPSC’s power. Two of these administrative complaints set new precedents for being aimed at companies which have no record of injury and are not violating any federal law or statute. “We do not want to be an agency that simply waits for more injuries to occur before we act,” says CPSC spokesman Scott Wolfson. Imagine if the rest of the justice system worked with a pre-evidence, pre-discussion policy. And despite the hard line attitude, the CPSC has been entirely inconsistent with it’s compliance enforcement. The biggest online seller of magnet spheres ships directly from China, and has received no enforcement action from the CPSC.

If the CPSC succeeds in its gamble, magnet sphere companies such as ZenMagnets.com will fall, leaving desolate ruins of magnet sphere art all over Youtube and Flickr. Future small business will be intimidated and less likely to stand up. The agency’s power will be expanded and the legal landscape will shift along with expectations set by multiple disturbing precedents: the precedent to ignore record magnitude public objection, the precedent to punish companies no record of injury, the precedent to argue that warnings don’t work, and the precedents to ignore prior internal policies on a dime. If CPSC’s effort to hold Craig Zucker (Ex-CEO of the now defunct Buckyballs company) personally liable succeeds, add also the precedent to sue individual corporate officers for refusing voluntary action. (6)

If the CPSC loses, a crisis of confidence directly follows. Their organization’s character takes a blow proportional to the aggression of their campaign. A few magnet companies that stood up to fight get a boost from weaned competition. And if the CPSC continues to make and lose uphill wagers, one day nobody will turn to listen when real product wolves are spotted, at which point nobody really wins.

“The whole principle is wrong; it’s like demanding that grown men live on skim milk because the baby can’t eat steak.” ~ Robert A. Heinlein

(0) http://www.cpsc.gov/Newsroom/Public-Calendar/2014/Public-Hearing/Agenda/Magnet-/Tim-Szeto-Comments-to-CPSC-on-a-Proposed-Safety-Standard-for-Magnet-Sets/
(1) http://savemagnets.com/massive-cpsc-misinformation-health-canada-analysis-shows/
(2) http://publicpolicypolling.com/NationalSurveyResults.pdf
(3) http://thehill.com/blogs/ballot-box/polls/266615-study-finds-ppp-kos-the-most-accurate-pollsters-in-2012
(4) http://www.youtube.com/watch?feature=player_detailpage&v=cMUl7R80eiA#t=5026
(5) http://blogs.westword.com/latestword/2012/08/federal_agency_targets_denver.php
(6) http://www.wlf.org/upload/legalstudies/legalbackgrounder/08-23-13MillarBiszko_LB.pdf