Consumer Protection Shouldn’t be All or Nothing

via Politico

By Shihan Qu

Published MARCH 28, 2020

There is a controversy brewing in Congress, inflamed by recent media attention, over whether small powerful magnets sold as adult products should be banned for Americans of all ages because children have been injured by swallowing them. This controversy is a surrogate for a broader discussion about the role of the Consumer Product Safety Commission in protecting consumers from injury, especially if that injury results from misuse of a product. It also raises questions on the role of proper protective packaging and warnings and instructions regarding dangers and responsible behavior.

With respect to magnets, the question is: Does a serious and troubling increase in injuries to children justify a nationwide ban of the product, or are there other possible approaches that would protect children but still allow the millions of adults who benefit from and love the product to continue to use it?

My company, Zen Magnets, sells sets of high-precision rare-earth magnet spheres, used for stress relief, education, and inspiration. Yes, they’re fun—but not all fun things are suitable for children. The product is sold with multiple layers of warnings on the packaging and on the website, and they can be purchased only online. These measures make it impossible for anyone to miss the fact that the product is not for children. We only sell our product on our own website and not on sites such as Amazon or eBay. Our aggressive safety efforts continue to earn our products a record of zero injuries. But other companies are less responsible; the market is flooded with hazardous magnets that are explicitly marketed as children’s toys – and do not have appropriate warning labels or protective packaging.

Like others, I am very concerned that injuries associated with magnets have dramatically increased over the past four years. However, the idea that high-powered magnet spheres must either cause a torrent of child injuries or be banned for everyone is a false dichotomy. Yet that is the choice presented by the CPSC, both when it previously sought to ban the magnets and now by legislation pending in both houses of Congress. This supposition that there exists no combination of age restrictions, warning language, sales restrictions, and packaging solutions that will result in the safe use of high-powered magnet sets is as damaging to consumer choice as it is insulting to Americans’ intellect.

The CPSC has authority to regulate these products. There has been a ban on high-powered magnets sold as kids’ toys since even before the introduction of magnet spheres to the market in 2009. The magnet sets I sell are clearly labeled with warnings to keep them away from children and are sold in containers that discourage children from opening and make the warnings impossible to miss.

Nevertheless, in 2015, the CPSC imposed a complete ban on small powerful magnets. I challenged the CPSC rule because, among other reasons, the commission’s own ER injury data did not support a rule banning the product. In 2016, I won my case in the U.S. Court of Appeals; the agency chose not to appeal to the Supreme Court.

The decision of the appellate court was based on the requirements of the Consumer Product Safety Act. The judges who decided the case were not “anti-regulatory” or “pro-industry,” as some have alleged—they were certainly not Trump appointees deciding a 2016 case. The Tenth Circuit simply found that the commission’s findings, which are needed to issue a rule, were incomplete and inadequately explained. In other words, the agency did not marshal the evidence needed to prove its case. And the court sent the rule back to the agency for a “redo.”

I then petitioned the agency to adopt a new standard requiring strong warnings, proper labels, safe packaging, and marketing that would clearly tell parents that strong magnets are adult products and not for homes with children. Rather than working to come up with a rule that protected children and could withstand judicial scrutiny, the Commission left the field, silently sitting on the sidelines, not even enforcing the existing toy safety laws regarding magnets. And, of course, a flood of sellers hawking small powerful magnets explicitly as children’s toys, and almost entirely without any warnings or instructions, came into the market, primarily through online retailers. Unsurprisingly, ingestion injuries increased. At this point, anyone would ask, “What did the CPSC do about it?” The answer is: nothing.

The CPSC has the responsibility of protecting us from unreasonable risks presented by consumer products. In carrying out these responsibilities, the CPSC has ample authority to get products that are being sold as children’s toys and with no labels or warnings off the market even without the adult magnet ban that was overturned by the court. This cannot, and should not, be turned into a political issue of pro-safety Democrats against anti-regulation Republicans, since Democrat-appointed commissioners controlled the Commission during the time when these products came roaring back to market and injuries began increasing.

During this time, I repeatedly sent the CPSC reports of magnets being illegally sold as children’s products by online shops. Not once during that time did the CPSC bring an enforcement action to remove these products from the market. That inaction continues to this day, even as the number of injuries continues to climb.

The next logical question is why a ban of adult recreational magnets loved by millions is being proposed—why hasn’t the CPSC instead chosen to enforce the existing toy safety laws with respect to magnets sold hazardously as kids’ toys, which it has ample authority to do? And we can’t even sue them for this dereliction of duty, as the agency has the privilege of discretionary enforcement.

Magnets are intended for adults but ingestions by children are a stark and dramatic example of misuse by an unintended user. There are those who will say that foreseeable consumer misuse of a product should be the basis for regulatory action. In the case of magnets, the product was never intended for children but some parents have purchased them for their children. They either did not see warnings because the warnings were not there, or they discounted the warnings. Yet, reasonably foreseeable consumer misuse alone cannot be the basis for a banning regulation. CPSC regulations make clear that it is an element, among many others, in determining whether a product is defective. Standing alone, it has not been used as the basis for a banning regulation as the CPSC tried to do and which I successfully challenged.

No one is discounting the serious injuries that can potentially occur if powerful magnets are ingested. Zen Magnets is trying to prevent the very same injuries from irresponsible industry participants. But robust warnings, combined with proper labeling, packaging, and sales restrictions, like those on our products, have simply never been tried for high-powered magnets market-wide. Before banning a product-category loved by millions, these alternatives should be tried.

I am working with consumer product experts to draft an industry standard that calls for multiple layers of warnings, child resistant packaging, and comprehensive safety instructions. The standard, when finalized, will require that online shops prominently warn consumers that this product is not a toy for children prior to purchase. We’re talking about warnings that are, in my opinion, stronger than those found on fireworks, button cell batteries, and ammunition. We hope that we can count on support for these efforts from the CPSC.

Rather than trying to spin this in a political and partisan matter, those proposing legislation to ban the product that so many use safely and enjoy should direct their energy towards responsible, reasonable regulation that is adopted and enforced. The CPSC’s all-or-nothing approach to magnet safety is what precipitated so many injuries in the first place.