This is my (Shihan Qu, Founder Zen Magnets LLC) off the cuff initial reaction to the CPSC meeting, intended for lawyers/journalists/people who are interested in the details of the situation. A recording will be available here, in a couple of days. A shorter, more polished, summary press release for the general public will follow. If you want to know what we plan to do now, scroll to the bottom.
The the meeting was broadcast live from CPSC headquarters in Bethesda, at 10AM Eastern, 8AM Mountain. Four of the commissioners voted to approve the Final Rule to ban magnets for all ages in the US. Only commissioner Buerkle declined to vote, noting it was inappropriate to proceed with rulemaking, prior to hearing the active recall litigation against the Zen Magnets.
I expected the vote to be 3-1, with Mohorovic voting against. Disappointing, especially considering the question asked two weeks ago – that struck right to the heart of one of the main inefficiencies – at the briefing meeting: “Why is the cost benefit analysis for a hypothetical situation where magnet companies are still alive?” The CPSC staff response, was that although most of the companies have been shut down from compliance actions, without the rule the market could “return to previous” sales. This is an unfounded assertion, as there are many new barriers to entry, and most big retailers would not be willing to sell magnet sets after receiving recall notices. Amazon, eBay, Brookstone, Urban Outfitters, and many more.
In fact, in today’s meeting, Kaye mentioned that one company would bear the blunt of this regulation, and indeed Zen Magnets is that one company. Yet, of the approximately 3 million magnet sets in the hands of American consumers, only 3% are from Zen Magnets. This rule, then, would only do 3% more than what compliance actions have already done to Buckyballs and smaller US Magnet Sphere companies. Somehow, they don’t want to wait two months for a judge to hear our case, before making the decision to ban magnet spheres nation wide.
The rule wouldn’t affect the small Chinese companies that ship directly from China, as the CPSC would have no way to enforce the stop of individual envelopes containing magnet sets. They would need to x-ray every package for magnets of the apparent size, pull them out to confirm they are strong enough, and then look at the packaging to see if it implied usage that was unapproved by the CPSC. However, the Final Rule does now also restrict magnets based on how they are “commonly used”, in addition to the previous “marketed or intended” use. The purpose is to prevent magnet sphere companies to sell the same magnets like industrial magnet companies, with no mention of sculpture or manipulative use. However, industrial magnet companies will also no longer be able to sell 5mm NdFeB spheres, as they are most “commonly” used for sculpture and manipulation. This addition expands the scope of the rule far beyond just the companies that sell magnet spheres intended for artistic and educational use.
Adler states that one of the reasons these magnets must be banned is because they are inherently appealing to children. However, these magnets are appealing to all ages, not just children. And in fact, only older children and adults are able to appreciate the full appeal of the magnets, where skill and intelligence are required. Additionally, many dangerous things are appealing to children. Guns and fireworks come mind. It’s not only the parent, but also society’s job to see that these are used and stored responsibly.
Adler’s notion, that the recall lawsuit and magnet rulemaking are separate and different issues, is preposterous. Both ultimately address whether or not spherical magnet sets are so dangerous that the Americans shouldn’t be able to decide themselves whether or not to have them. Both are a death sentence for Zen Magnets; one simply includes a facade of a recall, which approximately nobody will take. About 1/3500, a negligible fraction of a percent, if the 2011 Buckyballs recall is any predictive indicator.
Robinson said another reasons these magnets must be banned, is the trouble educating medical professionals. However this is far from an argument to ban magnets, it’s an argument to work with magnet companies on an educational campaign. Who best reaches the people with magnets than the companies that sell them? Magnet ingestion existed in large quantities before the arrival of spherical rare earth magnet sets, and will continue even if magnet spheres are banned. If parents know of the magnet ingestion hazard, then when the doctor asks “did your child eat anything weird”, the parent would know what to mention, even if the doctor doesn’t ask.
On a similar topic, Robinson also notes that the 2900 ER visits attributed to magnet sets from 2009-2013, is from the “yes/possible” category of results, when searching through doctor’s narratives of magnets that are round, and/or high powered. It’s fair assume that an exact figure isn’t possible, and an estimate is needed, but it would have been wise to confirm that these injuries actually correlated to magnet sets. They don’t.
The same method performed on the 3 year period prior existence of magnet sets on market, show a rate of 600+ ER visits, compared to the 580 ER visits from 2009-2013. Despite this unproven correlation, the 580 ER visits per year are fed right into cost benefit analysis, which multiplies that number by the average hospitalization costs. We’ll be providing more details on this almost-scandal-worthy issue, soon.
Mohorovic said he was “confident that this rule will succeed in it’s intended purpose”. Yet, he has little reason to, given faulty injury analysis and unrelated cost-benefit analysis. It doesn’t seem to me that any of the commissioners made any thorough attempt to critically read the 200+ page briefing document. Nor do I believe it was in their capacity to do so, considering the great number of obligations they deal with on a daily basis.
That such a rule with weak foundations would be finalized, seems to me an expression of desperation, or a symptom of internal conflict within the CPSC staff, or both. Additionally, I think our case is relatively strong for the following assertions:
- We disagree that the final rule, is of similar scope to the proposed rule that received comments.
- We disagree that the CPSC staff addressed all public comments, or anywhere close to an acceptable amount.
- We disagree that, of the public comments that were addressed, were addressed to a sufficient degree or manner.
- We disagree the rule properly describes the scope of the “magnet set” product category.
- We disagree that the product category, even if properly represented, accurately describes our products.
- We disagree that the epidemiology injury analysis shows any correlation to the magnets that would be affected by the regulation.
- We disagree that the cost benefit analysis is appropriately modeled to consider societal benefits and costs.
- We disagree that basing the cost benefit analysis on an impossibly hypothetical situation where our competitors were still alive, is appropriate.
- We disagree with the accuracy of the NASPGHAN pediatric gastroenterology survey.
- We disagree that reasonable people cannot be expected to use magnets responsibly.
- We disagree that the product provides low utility to consumers.
- We disagree that the medical consensus, outside of pediatric gastroenterologists, agree that magnets must be banned.
- We disagree that teenagers are unable to be told not to use magnets as simulated oral piercings.
- We disagree that no warnings can be effective, so as to properly inform of the hazards.
This list could go on, if we really went into the details of the rule making briefing.
I appreciate the apology Chariman Kaye addressed directly to me in the briefing. I also appreciate that he read this excerpt from a letter I sent him two days prior:
“It was in a moment of awe and lucidity that I decided to start Zen Magnets. These magnet spheres are a window to a universe of curiosity and inspiration, utterly unlike any other product before it. To me, an adventure in to geometry, photography, physical forces, and most importantly my own mind. As an adult, they still bring me the childhood wonder that I once had for much of the world around me. These magnets function exactly like they should. That they require more care in use than many other products, doesn’t mean magnets should be feared, but that they should be respected.”
In response to Kay’e direct message to me, I would say: Thanks. I will indeed continue to follow my dreams. However, that does include continuing this fight, on this new front that we’ve been double flanked by.
At least 5 minutes of Kaye’s time was spent appealing for an emotional response by going into gruesome detail into the first (contested.. more info soon) death, after 3 million sets of magnets being sold, you are doing a disfavor to the hundreds that are fatally injured by ATVs every year, of 70,000 that end up in the ER every year, and dozens that are fatally injured by fireworks, and balloon injuries, and etc. None of the people injured or killed from other products, with a much greater rate of incidence, are provided the service of having a CPSC Chairmain announce in a live streamed meeting, the injuries in the most dramatic manner possible.
The rule will be in effect 180 days from when it is published in the federal register. Our window to appeal is 60 days. We will likely need to find an additional lawyer to assist in this new front, but most of the arguments necessary are identical to those in our case. Our increased sales should be able to support the defense of this new front of attack. If everything the CPSC said was true, and all their arguments were fair, then we would accept the news as a forgone conclusion. But it’s not, and they aren’t. That magnets require more care in use, means magnets must be respected, not that they must be feared. For the moment being, we are still proudly selling spherical shiny rare earth magnet spheres.