On August 27th, the U.S. Consumer Product Safety Commission voted 4 to 0 to issue a notice of proposed rulemaking, effectively aimed at small, high-powered magnet. Although that fact may sound alarming, within a statement explaining her vote, Commissioner Nancy Nord has shown herself to be the voice of reason among the CPSC Commissioners.

Nancy Nord, a former acting Chairwoman among the CPSC staff, is the senior Commissioner with over 7 years of service. In the past two months, she has been outvoted by the three relatively new CPSC Commissioners (Inez Tenenbaum, Robert Adler, Anne Northup) in filing rare administrative complaint lawsuits against Buckyballs and Zen Magnets. According to the New York Times, “the action involving Buckyballs and Zen Magnets is unusual because the safety commission rarely files an administrative complaint, which is essentially a request for a mandatory recall.”

After the administrative complaint sent to Buckyballs in July, the most recent administrative complaint against Zen Magnets LLC marks the eighth complaint of this sort ever made by the agency, but the one sent to Zen Magnets is especially unique due to the lack of injury caused by Zen Magnets. Denver’s Westword reports that in the history of CPSC Administrative Complaints, the one filed against Zen Magnets is the “very first in which a company being targeted has no record of injuries.” Both Zen Magnets and Buckyballs deny that their product is defective, and are currently in litigation to stop their products from being banned.

In an interesting statement made by Nord regarding the NPR (Notice of Proposed Rulemaking), Nord noted that she was “not convinced that the proposal before us – which amounts to a ban on all magnet sets sold today – best reduces or eliminates the hazard while minimizing disruption to manufacturing and commerce as required under our statute.”

She raised three primary concerns against the banning of magnet spheres such as Zen Magnets and Buckyballs:

• The assumption that warnings don’t work, undermine past safety standards deemed acceptable by the CPSC and US Congress.
• The ban is overly broad. There are two distinct hazard patterns that should be addressed: Children under 5 tounging their environment, and teenagers mimicking piercings. And the ban includes products that have not demonstrated similar risks.
• Current compliance actions amount to “back-door” rulemaking, and have side stepped democracy and public opinion.

Nancy Nord the CPSC Voice of Reason

Regarding warnings, Nord states: “The proposed standard proceeds on the belief that warnings do not work for this relatively new product because (it is assumed) warnings are and will be ignored or otherwise not communicated effectively. But in the absence of a robust and comprehensive program to educate and warn about this hazard, it is unclear that warnings will be ineffective and our conclusion that such is the case is speculative. And applying this principle broadly would eviscerate many of the safety standards that the Commission (and Congress) have deemed acceptable. The long‐term policy implications stemming from the rationale for the proposed ban on other products subject to warnings have not been explored but are presented by this rulemaking.”

On the topic of an overly broad ban: “[Nord is] also concerned that the proposed ban may be overly broad. There are two hazard patterns here: one involving young children and the other involving older children and teenagers. A tailored approach might adequately reduce the risk associated with magnet sets but not eliminate the product from the marketplace. In addition, the proposed standard—particularly as amended by the majority—includes products that have not been demonstrated to pose the same risk. Over inclusive rules needlessly strangle commerce and innovation, and should be avoided.”

Commissioner Nord reiterates her position against filing Administrative Complaint lawsuits against Zen Magnets and Buckyballs: “When the Commission believes that a hazard is so imminent that it cannot wait for the results of rulemaking, we have the statutory authority to act. In this case, however, instead of using that authority, we have brought compliance actions against certain companies and asked others to withdraw the products from the market in an attempt to reach the entire market. This amounts to back-door rulemaking. Approaching the hazard through the front door—that is, through the rulemaking process—is more appropriate. In this way, we do not take formal or informal actions that reach conclusions about a potential hazard before the Commission has all the relevant evidence and all affected stakeholders have the opportunity to be heard.”

Although this NPR is one step closer to prohibition of magnet sphere sales in the US, Nancy Nord makes clear that now is the time for the public to make comments. Up until now, the CPSC has fallen deaf to public opinion. Almost all public opinion is highly against the banning of spherical magnets. The CPSC has not publicly responded to the savemagnets.com petition against the ban, they have refused debates on live TV, and they have turned down every recorded case of compromise suggested by magnet suppliers.

The full statement made by Commissioner Nord can be found here: http://www.cpsc.gov/pr/nord08272012.pdf