The consumer product safety community is rarely provided guidance by federal court decisions. On Tuesday, however, Judge R. Brooke Jackson of the Federal District Court for the District of Colorado issued an opinion in the never-ending saga of Zen Magnets, LLC v. CPSC.

Ultimately, the court held that Zen Magnets’ due process rights were violated because the company was denied a fair and impartial tribunal in its appeal of an Administrative Law Judge’s Initial Decision and Order. Judge Jackson remanded the case to the Commission for a re-hearing without Commissioner Bob Adler’s participation. The purported violation stems from Commissioner Adler’s comments in the course of a rulemaking for magnet sets that raised a question of his impartiality with respect to the enforcement action against Zen Magnets.

Zen Magnets’ Founder, Shihan Qu, was quick to announce the victory, and it may ultimately be a victory for Zen Magnets. However, for the most part, Judge Jackson’s decision is actually a substantive victory for the Commission with respect to the agency’s authority to declare products substantial product hazards and order mandatory recalls. Continue Reading CPSC’s Zen Magnets Mandatory Recall Reversed: A Mixed District Court Decision Gives Zen Magnets a New Life and the CPSC Favorable Precedent for Mandatory Recalls

zen-magnetsAs we wrote about earlier this month, on April 1, 2015, the U.S. Court of Appeals for the Tenth Circuit (“Tenth Circuit”) temporarily stayed the effective date of “the enforcement and effect” of the CPSC’s safety standard for certain high-powered magnet sets.  Specifically, the Court stayed the safety rule pending consideration of the CPSC’s response to plaintiff Zen Magnets’ (“Zen” or “the Company”) motion to stay the rule pending judicial review.  While the temporary stay ordered by the Tenth Circuit was widely reported in the media, what followed soon thereafter – the lifting of that stay – has received scant attention.

On April 14, CPSC Responded to Zen’s Stay Motion.  The Government argued that the rule should not be stayed pending judicial review because Zen could not demonstrate: Continue Reading Tenth Circuit Lifts Stay on CPSC’s Magnets Rule

rare earth magnets consumer product safetyWe do not typically take positions on product specific issues pending before the U.S. Consumer Product Safety Commission (“CPSC”), but the CPSC’s new safety standard for magnet sets demonstrates both why the agency exists and how it can use its regulatory authority to protect consumers. In enacting the safety standard, the agency did not eradicate what are commonly referred to as “rare earth magnets” from the marketplace. Instead, the CPSC set a minimum level of safety for certain types of magnet sets based on the data necessary to take such action under the Consumer Product Safety Act (CPSA), the CPSC’s organic statute.

The practical effect of the CPSC’s action will be to prohibit the sale of magnet sets composed of small but very powerful magnets that have proven both extremely attractive and hazardous to children. Although these types of magnet sets were marketed to adults to manipulate into various shapes for entertainment or stress relief, the individual magnets found their way into the hands, and ultimately, the mouths of children. When accidentally swallowed, the magnets can bond and become trapped within the digestive system in a manner that can cause severe internal damage.

Summarizing the rationale for his vote, Commissioner Mohorovic said in his closing statement at the CPSC’s decisional meeting: Continue Reading CPSC Gets it Right: Unanimously Regulates High-Powered Magnet Sets Through New Safety Standard

This week, the Consumer Product Safety Commission (“CPSC”) will decide whether to hold a full Commission hearing to receive oral comments on a notice of proposed rulemaking on magnet set safety.  If the meeting notice is approved as drafted, the hearing will take place at 10 AM EST on October 22, 2013 and will provide stakeholders the opportunity to present additional comments to the CPSC on the proposed magnet set standard prior to agency staff finalizing the rule.  In August 2012, the CPSC voted to begin a rulemaking process to address safety risks posed by certain high powered magnet sets.  The CPSC published a notice of proposed rulemaking on September 4, 2012.

Many agency stakeholders were expecting this rule to be finalized prior to the end of this fiscal year (September 30, 2013) based on the dates listed in the agency’s recent Spring Regulatory Agenda and projections listed in its 2013 Operating Plan.  However, this meeting notice indicates that likely will not be the case.  Interestingly, the week of October 22 will be Commissioner Nord’s last week at the Commission before the expiration of her holdover year and the last week before Chairman Tenenbaum’s natural term expires and holdover year begins—meaning that Commissioner Adler may be the only Commissioner remaining that voted on the proposed rule when the final rule is eventually presented to the Commission.

Continue Reading CPSC Likely to Proceed with October Hearing on Magnet Rule