Hopefully the video below is as entertaining as it is informative. Though first prompted as a response to a WaPo hit piece, it’s the truth behind the entire upcoming wave of magnet prohibition politics. Also covers why we’re stopping new product releases, and to what degree we’re going to let it all happen. If you decide to like/share, don’t do it for us. We’re not going to be around to fight forever.
On 12/20/19, Senator Blumenthal introduced into Congress a clone of the previously repealed magnet ban. Even though there’s always been a “ban” on high powered magnet balls being sold as kids toys, the CPSC has not been enforcing the hazardous magnet restrictions of the ASTM F963 toy safety law since 2016.
Using the untouchable executive power of selective enforcement the CPSC has been allowing a new epidemic of magnet injuries by encouraging sales of hazardous illegal magnets through lack of enforcement, as well as actively hindering the efforts of industry leaders of magnet set safety to develop reasonable regulation, in order to ensure the self fulfilling prophecy that “warnings don’t work”.
For the rest of the year, we’re discontinuing all sales and promotions, no annual 420 sales or Black Friday sale for 2020, The only coupon code active for zenmagnets.com will be “THECPSCISGUILTYASHELL” for 1 cent off. To encourage non-enthusiast awareness of what effective labeling looks like for high powered magnet spheres, we’re permanently dropping the price of Zen Magnets as low as we reasonably can, until the new ban forces Zen’s heartbeat flat, or at least through the rest of 2020.
Even if/when we can’t sell magnets, we’ll still resist the disinformation about how it all went down.
Want to help? Stay tuned.
“We will not settle for any sort of stop-sale of magnets that are perfectly safe when not misused… We vow to continue this [legal] battle until our very last drop of cash-flow blood”, promised in August 2014, forecasting 95% chance of a glorious honorable death of insolvency on the legal battlefield.
Last week a Colorado District Court Judge tossed a U.S. Consumer Product Safety Commission’s recall decision on due process grounds. For the first time in six years, we are no longer in active litigation. Yes, WE WON! Here are links for the curious:
We are so greatly indebted to the to the thousands that supported us financially and emotionally throughout this endeavor. It’s really quite astonishing that we’ve come out the other end of this whole thing alive.
Just week ago we were still on our knees awaiting a potential guillotine. But forthcoming, expect new projects, products, and outlooks. To consecrate, we’re re-awakening the monthly contests, giving away more free magnets than ever, and resuming all projects that were on doom pause. Stay tuned at newsletter.zenmagnets.com
6 Years in a Flash
Back in 2012, when we were the first company to get sued for a mandatory CPSC recall prior to record of injury, we had no idea what we were getting into. The original plan was to defend ourselves in court, because who needs a lawyer ughhhh.. ohh. Hahahha….
By the time Buckyballs and Magnicube both settled with the CPSC, we were two years less naive but no less outraged at – what seemed to us to be – a blatant attack on the fundamentals of Consent, Warnings and Democracy. We were literally the last ones standing, and “You’re going to lose”, was standard line from almost every lawyer and consultant we spoke to about a prolonged legal scuffle with the big Fed CPSC. “Yea, probably,” we thought.
Along the way we eulogized burnt magnets, uncovered CPSC injury data dishonesty, spent two dozen days in court over four years, all while a blizzard of legal motions flew around us.
The nationwide magnet ban meant we were without income for most of 2015. After downsizing from 12 employees in a big warehouse to one loyal part time in a spare bedroom, 2016 was when we had our first significant victories. The CPSC’s nationwide magnet ban was overturned months after the first appeal of the Zen Magnets recall was ruled in our favor.* Rather unexpectedly, we’ve had more success resisting the CPSC than any company in 33 years.
The Battle for Magnet Safety
“There is a fundamental problem with regulators. If a regulator agrees to change a rule and something bad happens, they can easily lose their career. Whereas if they change a rule and something good happens, they don’t even get a reward. So, it’s very asymmetric.” – Elon Musk
How this game works, is we have to keep winning at every stage on every front, or else the CPSC wins. Though breathing capacity returned when we defeated the Nationwide Ban in 2016, the CPSC still wanted to make a point of our destruction.
Though the Judge’s recent decision was in our favor, it wasn’t exactly a knock out of the park. In fact the decision seemed like it was designed to stir as little commotion as possible while giving us a solid victory. Instead of having to overrule the CPSC on the merits of the case, the judge threw out CPSC’s previous appeal on due process grounds.
The case has been remanded to the Commission for what is essentially a rehearing but absent Commissioner Robert Adler. Though the ball is in their court, the effect of labotomizing Commissioner Adler from the brain of the CPSC results in an insufficient majority for the CPSC to continue Adler’s magnum opus on this recall front.
As former Commissioner Nancy Nord puts it: “From a safety standpoint, the CPSC’s ineffectual regulatory and litigation strategy has resulted in opening the marketplace to companies who, unlike Zen, have no interest in promoting safe use of SREMs. Because the agency’s position on both the regulation and the recall of the Zen product have been overruled, the market is now wide open, with no requirements for safety precautions applicable to the product in place. This result is on the agency. If any injuries involving this product occur in the future, the agency must look internally for the cause. Their incoherent policies, in large part, bear the blame.”
We remain willing to work with the CPSC to develop the magnet safety standards for which we’ve already petitioned, and which will be more effective and reasonable than the all-ages, nationwide ban we succeeded in vacating in the Tenth Circuit. As we’ve already been doing, Zen Magnets looks forward to providing not just the highest quality magnet spheres on the market, but also the safest in terms of sales methods and warnings. Now that the war on magnets is over, hopefully we can all focus towards the war on magnet misuse.
Magnets must be respected, but need not be feared.
Thanks again everyone,
Founder, Zen Magnets
[Edit#4 4/18/2018: Technically we may have a result to our 6 year long lawsuit by May 2017, but the CPSC only recently provided the full records to the Judge. It’s difficult to say when we’ll really have a conclusion. So close, yet so far.]
[Edit#3 11/15/2017: WE’RE BACK. For now. It may be temporary. We did not get the temporary injunction that would allow us to sell up to the Trial, but we got the next best thing. An order that will allow us to sell up to the hearing for the temporary injunction. *fist pump into the air*]
[Edit#2 11/7/2017: Injunction filed. Let’s hope we’re back online within a week.]
[Edit 10/27/2017: Stop sale has arrived. We overturned the ban that has allowed others to sell magnets all over the internet, and ironically are now the only ones in the US that can’t sell Magnet Spheres. Stay tuned for news from newsletter.zenmagnets.com]
The full order and dissent can be found here.
[Edit 10/1/2017: No stop sale yet. Still selling at full speed. Anxiously awaiting.]
TL;DR: Zen Magnets singled out for potential stop-sale. Store closing preparations. We will continue fighting to the very last of our ability, as usual.
CPSC Angry Grudge Mode
Yesterday, the Huffington Post published the most comprehensive summary on our struggles since Westword in 2014. But despite “winning the bigger battle over high-powered magnets”, we expect our friendly neighborhood CPSC to issue a stop-sale to Zen Magnets alone sometime in September. Our future is as uncertain as ever.
A year ago we miraculously beat the magnet ban when all others fled or fell. But somehow one branch of the US Federal Government seems to have a grudge against us and wants to make a point of our destruction. Maybe it’s because we were the first in 32 years to overturn one of their rules in court. Or maybe it’s because we were the first in two decades to defeat them in administrative court?
Regardless, the CPSC will “appeal” our administrative victory. Since they get to “appeal” to themselves (yes, the very people who decided to sue for a recall), they will predictably agree that they were right the whole time and force us to stop selling.
We never fully recovered from the 2015-2016 ban after fighting over year without much of an income. Imagine wrestling a giant while being held underwater. To subsist, we downsized from a big warehouse to a personal bedroom. By the time the victory came through in November 2016, Zen was on the floor, face flushed purple from suffocation. Reviving a broken supply chain was difficult, but we proudly affirm that the quality of Zen Magnets that are currently available is equal to, if not better than, what they were in years past.
As of this moment, we’re liquidating. Prices will be lower than they’ve been for years for our OCD Quality hard-to-make Zen Magnets. Neoballs are cheaper than they should ever be at neoballs.com. If a color is out of stock, come back in a few days or get an email reminder. This is the chance to buy your December presents, as we can’t guarantee our ability to sell any 3 months from now. No coupon necessary. No promises on how long the sale will last.
We’ll request an injunctive stay as soon as the stop-sale is ordered (read: request court to pause Zen death sentence until hearing) and hopefully within a week we’ll be selling again and be back long enough keep fighting through the hearing.
If an injunctive stay is denied and we aren’t able to sell Zen Magnets this holiday season, that will probably be the end of our story: a story which has already lasted longer than we expected. Don’t feel sad for us, we’ve accomplished more than anybody has expected. Plus, we’ll have more time to ski, and jump on trampolines, and ride motorcycles to the liquor gun store. Murica’
Ironically, the only magnet company that the CPSC is targeting right now is also the one with the strongest warnings. (Hint: it’s us.) Ever since we beat the ban, magnet spheres have been available again from thousands of sellers online in the US. And since the CPSC doesn’t seem to be enforcing existing magnet safety laws such as ASTM-F963, even if Zen Magnets do cease to exist, you can probably depend on low-quality high-powered magnets with no warnings flooded all over Amazon, and other markets.
TL;DR: We beat the magnet ban. Whew. Immediately beginning production of Zen Magnets for Q1 2017 delivery.
It seems like just the other day that magnet spheres were regulated more restrictively than cars, cigarettes or alcohol in the US. A week ago there was no acceptable warning, no acceptable age, no sales restriction nor waiver that allowed production of magnets like Zen Magnets, Buckyballs, Neoballs, Magnicube or Neocubes. It didn’t matter if a single adult wanted magnets for themselves, or if a parent wanted to decide for themselves and their family; the government didn’t agree and consumer consent in the matter was not required.
Today we are excited to once again take orders of Zen Magnets for immediate production. On 11/22/2016, the 10th Circuit vacated (read: overturned) the magnet set rule. We are so grateful for the community support and encouragement we’ve received that makes our stand possible.
For the past two years, we’ve been the last company standing against the Consumer Product Safety Commission’s war on magnets. Despite our – first in decades – court victory against the CPSC recall/stop-sale in March, we were disheartened to still be unable to provide Zen Magnets due to the concurrent import ban. Embittering that – even after a judge found our magnets to “create no exposure to danger whatsoever” when used properly – our heads were still being held under water. In recent past, we were financially exhausted and preparing for dissolution. This judgement literally couldn’t have come any later for our little magnet company. Feasibly this presents an opportunity for the CPSC, together with Zen, to really address the magnet safety problem.
Yes, high powered magnets can be dangerous if misused. (For readers: if two magnets are swallowed, they can pinch internally and require surgery.) Like fireworks (but safer), they are not children’s toys, and we’ve not sold them as such. High power magnets are not defective, they operate exactly as they should. The real fight we both need to work towards is educational: high powered magnets should be kept away from any mouths and young children who don’t know better.
What makes the CPSC’s war on magnets so unrelatable is the dis-proportionality of the loud red alarm blaring from the consumer safety advocacy machinery. There’ve been a lot crisis level lectures, like “teens will use them as tongue piercings!” but lacking context such as, “high school sports are more dangerous in terms of ER injuries and fatalities, per participant.” A bunch of imbalanced rhetoric like, “magnets are inevitably ingested by babies and therefore must be unavailable to all”, yet for pools – which are similarly prevalent and much more deadly to infants and children – the CPSC issues supervision tips and safety advisories. The message that neodymium magnet spheres sets are so dangerous that citizen consent must be bypassed, is not only unbelievable, but insulting.
Perhaps it’s understandable how the CPSC’s magnet antagonism came to be. Magnet spheres were a relatively new product which caused slow but severe injuries, with relatively new injury mechanisms like ‘debilitating gastrointestinal damage’. These aspects made magnet spheres the perfect nail for the CPSC’s ferocious regulatory hammer. Indeed it’s much less excite-worthy when a child suffocates on a balloon, the #1 cause of child suffocation, a novelty everyone grew up with and often believe to be harmless (e.g. Judge Bacharach). Balloons are much more likely to kill your small child than magnets. But balloons are less alarm-worthy because suffocation is old news, happens quickly, and generally leads to death, death, and death.
The CPSC cannot successfully engage consumers without acknowledging their opinions, especially when such a strong consensus exists. Fun fact: When a CPSC staff person goes home, it’s likely all of their adjacent neighbors disagree with the nationwide all-ages market removal of neodymium sculpture magnets that’s been furiously pushed in the past four years.
If (and when) CPSC continues waging its taxpayer funded war on magnets, our pledge remains the same: we will not settle for an all-ages stop-sale of magnets that are perfectly safe when properly used. Regardless of the longevity of Zen Magnets LLC, the last American neodymium magnet sphere company, it should now be obvious that as long as demand exists, supply will persist despite prohibition. (Albiet, not with the quality of Zen Magnets. 😉 ) Instead of driving Zen out of business, and pushing production further from the CPSC’s field of view, I’d rather use our resources to fight alongside the CPSC for successful educational and awareness campaigns focused on consumers and medical professionals.
Magnets must be respected, but need not be feared.
Founder, Zen Magnets
Appellate Court Decision
On November 22nd, 2016, the United States Court of Appeals for the Tenth Circuit has ruled in favor of Zen Magnets LLC in a 2-1 ruling, vacating the rule the Consumer Product Safety Commission promulgated in September, 2014 that prevented the importation of magnets. The majority opinion concluded that “the Commission’s prerequisite factual findings, which are compulsory under the Consumer Product Safety Act, 15 U.S.C. §§ 2051-2089, are incomplete and inadequately explained.” As such, the Court ruled to “VACATE and REMAND to the Commission.” The full ruling can be found here. (mirror)
Regarding ER injury statistics, aka the “CPSC Epidemiology Elephant in the room”, the 10th Circuit wrote:
While the Commission is certainly free to rely on the emergency room injury report data set, it may not do so in a way that cloaks its findings in ambiguity and imprecision, and consequently hinders judicial review.
Regarding cost-benefit analysis:
Although the Commission’s evaluation of the costs of the rule to magnet distributors was adequate, its evaluation of the costs to consumers was incomplete.
Regarding the simultaneous regulatory enforcement:
The Commission’s benefits findings … do not adequately account for the reduced injury rate (and therefore reduced need for a new standard) resulting from its recent apparent enforcement… An agency may not simply ignore without analysis important data trends reflected in the record.
“Once again, Zen has shown that it is possible to fight the federal government and win.” Says Former CPSC Commissioner Nancy Nord. “It may be that, through Zen’s actions, the CPSC will come to understand that it can protect consumer safety without disregarding basic notions of due process.”
Is the war on magnets completely over? No, it’s still very much ongoing. Our current legal situation is summarized as follows:
Battle 1: Victory, for now. This was our month-long December 2014 court skirmish over the stop-sale and recall of Zen Magnets and Neoballs. We started out as 3 companies allied vs CPSC, but Buckyballs and Magnicube settled out to avoid a costly court episode. Zen was the first in 20+ years to successfully contest a CPSC recall.
The CPSC has already indicated intent to appeal. “That appeal will be heard and decided by the five members of the CPSC—the same group who voted to sue Zen, who voted to issue the related rule banning the product, and several of whom have made public statements that suggest where they will come out on the appeal.” Ironically, only after the CPSC is done appealing to itself, do we get the real chance to appeal.
Battle 2: Victory. This is the nationwide all-ages magnet set rule that just got vacated. (Yay!) Interesting fact: the CPSC’s two-pronged approach was quite an unprecedented surprise. Many (including ourselves) had predicted that the ban wouldn’t finalize until after the outcome of our first case, since the CPSC commissioners are also the judges upon appeal, and thus would need to avoid showing any prejudice by voting for it.
The Vacated and Remanded rulemaking is being sent back to CPSC for further findings consistent with the requirements of the Consumer Product Safety Act. The rulemaking deficiencies were: the ambiguous epidemiology stats, the inadequate consideration of consumer utility, and the omission of simultaneous enforcement effects. We don’t expect a new rule to do much better. The revival of Battle #1 is a bigger concern.
Battle 3 (updated 12/1/16): Settled/loss. The one where the CPSC via DOJ was suing for $15 million for “selling recalled magnets.” Before Magnicube settled out of Battle #1, we purchased their remaining supply which came from our Neoballs factory in the first place. We stripped off their branding, and put the identical raw magnets into our own Neoballs packaging and warnings. We were, after all, already defending the same magnets and warnings in Battle #1, so how would is it any different that we acquired them from a fallen competitor instead of directly from China? So we thought…
CPSC found an opening for attack, and the judge agreed. It was obvious the judge had already decided when early on she asked “Why didn’t you separate the Magnicubes from Neoballs”, which is basically “Why didn’t you treat those magnets as recalled products right you bought them.” Long sigh… ~_~ (We wouldn’t have purchased them if we thought there was a risk the magnets wouldn’t be treated fungibly.) In the end, the Department of Justice wanted for $100,000 for each individual ‘recalled Magnicube’ magnet sold which would have amounted to billions of dollars, but stuck with $15mil because that was the limit. We didn’t have the resources to appeal, so we settled for a nominal amount. Not because we agree on principle, but to put it behind us and be done with it. The final dollar judgement is $5.5mil, paid with $10,000. The worst part is we’re going to have to destroy nearly half a million Neoballs, more than we ever purchased from Magnicube in the first place. ” It’s wasteful and sad. Should make for an interesting youtube video, nonetheless. If you have any brilliant ideas on how to destroy them, email us at email@example.com
90% Victory, 10% Recall
Administrative Case Decision
They said it couldn’t be done. We knew the odds were small, but on principle alone we had to try. With the support of many, we have won. The outcome of our December 2014 spent in court in DC (CPSC Docket No: 12-2) has landed strongly in our favor. To what degree have we won? See summary below, or read the Decision and Order yourself here. (mirror) Page 36 is the list of facts found.
“Proper use of Zen Magnets and Neoballs creates no exposure to danger whatsoever.” It was found that Zen Magnets (and Neoballs) are not defective under 16 C.F.R. 1115.4, and are not substantial product hazards under CPSA Section 15(a)(2). “The [CPSC] presented absolutely no evidence that separation, alone, creates any threat to any individual…” Additionally, SREMs (Small Rare Earth Magnets) are not violative of ASTM F963 when they are sold with proper warnings (like ours) and to children 14 years or older.
Remember when the CPSC argued that no warning could ever be effective for magnet spheres? Well the Judge found that *all* versions of warnings used by Zen are effective, and do not contain a “fault, flaw, or irregularity which causes a weakness, failure, or inadequacy.” This includes the warnings that went viral on reddit/imgur, and the ones that referred to the CPSC as grumpy. “Although Respondent acted ‘tongue in cheek,’ [the]… warnings are nonetheless clear- the products are dangerous if swallowed and require immediate medical attention,” and, “given Respondent’s blatant warnings on the product’s packaging and website, ingestion certainly constitutes misuse.”
Despite the greatest internet outcry the agency has ever received, the CPSC always assumed magnet spheres had no significant utility. They ignored the nationwide polls (which they should have conducted and paid for in the first place) and decided they knew better than American public consensus. Boyd Edwards (Professor of Physics @ USU) was essential in documenting the educational aspects, and his full report is available here. The ALJ (Administrative Law Judge) concluded that “[the] Utility is indeed high,” and, “the usefulness outweighs the risk of injury associated with the product.” The ALJ agreed that “no other medium can replicate the unique spherical and magnetic properties of [SREMs]”
“The Agency was unable to sufficiently and credibly correlate any SREM injuries directly to Zen Magnets or Neoballs. The lack of credible evidence here is telling.” And regarding the CPSC’s (Epidemiology) Elephant in the Room, that easily disproven (yet commonly repeated by media) CPSC injury estimate of 2,900 “magnet set” ingestions from 2009 to 2013: “These numbers are insignificant to show any specific, identifiable population, particularly given the mass amount of magnets purchased and already on the market.”
There are two recalls we are required to offer:
One for the Admin case (which we’ve previously referred to as battle #1, and just won) for the Zen Magnets without warnings sold prior to May 2010, and Zen Magnets that sold while the site said 12+. All purchasers subject to this recall will be emailed as ordered, and be given the option to return their magnets for a refund of the full purchase price.
Another recall is for DOJ vs Zen (which we’ve previously referred to as battle #3) for the Neoballs that were purchased by Star Networks and then liquidated to us before they settled with the CPSC. All purchasers subject to this recall will also be emailed as ordered, and full details and order are posted on Neoballs.com where they were purchased.
Here’s a recall we offer of our own volition, which nobody is requiring of us:
If you own Zen Magnets and Neoballs, and you: don’t feel safe with them, don’t think you can keep them from being swallowed, don’t understand why they are dangerous, or magnets look tasty to you, or you don’t like the word Zen next to the word Magnets, or your best friend threw pasta at your face and you’re angry, or any other reason you can possibly imagine, you can go ahead and mail them back to us at:
Zen Magnets LLC
12445 E 39th Ave, STE 310
Denver, CO 80239
We will refund your full purchase price. Make sure to include proof of purchase so we know how to refund who. We’ll gladly re-sell your Zen Magnets to people who are waiting for them. (At a discount for being used, of course.)
Q: Can I buy Zen Magnets now?!
A: No. Despite this victory, we still have no Zen Magnets to sell you. Sorry. The CPSC’s war on magnets was the first time they took a two-pronged approach of conducting rulemaking simultaneously with administrative action. Even though Zen Magnets and the included warnings have been found to be without flaw, there is still a nationwide import ban. As Former Commissioner Nord put it in a recent blog post: “Even though Zen won this battle, it has not won the war. The agency lawyers now have ten days to appeal the ALJ’s decision. That appeal will be heard and decided by the five members of the CPSC—the same group who voted to sue Zen, who voted to issue the related rule banning the product.” When the CPSC appeals, the judges they appeal to are none other than themselves.
Q: When can I buy Zen Magnets?
A: Extremely uncertain. Right now, our biggest obstacle seems to be money to fund the battle. Micromagnets, though generally liked, are themselves not enough to sustain our business, let alone fund another legal battle. Do you have a creative suggestion for us? We’d love to hear it.
Q: Why are a portion of Neoballs subject to recall?
A: See this newsletter post for more info. We’ll send updates via the legal sub at newsletter.zenmagnets.com. For now, Nancy Nord explains it quite succinctly.
Magnets must be respected, but need not be feared.
💙 Zen Magnets
Sup with Zen Magnets?
Well, we’ve shipped no sets of magnet spheres for the past seven months. And although it’s not technically illegal to sell Zen Magnets or Neoballs in the US, we can’t import more due to the magnet ban. The very last of our supply of Zens and Neos will be available this November (for email notification, click here), and after that we won’t have more until we succeed in defeating the ban. And that’s only one of our three simultaneous legal battles.
In the meantime, we’ve begun accepting orders for our new Compliance Magnets. They are still magnet spheres that can be used for construction, and they will ship in time for the holiday season. Compliance Magnets will obey, conform, and abide by all CPSC regulations but still be capable of most of the same structures as Zen magnets. Find details at micromagnets.com.
But to be clear, these new tiny magnets are Not designed for ease of use, they are designed to fit inside the regulatory limits set by the CPSC. They are not a substitute for Zen Magnets, for which our fight continues. Given a choice between Compliance Magnets and no magnets at all, we choose Compliance Magnets. But don’t get us wrong. The CPSC’s attempt to remove proper magnet spheres from the US market for all ages, in all states, is still disproportionately irrational regulation championed by unelected regulators, based on dishonest data and baseless assumptions, to create unclear, ineffectual rules, despite the greatest historical public opposition. Meanwhile Europe is still laughing at the US for banning Kinder Eggs.
Our current legal situation is summarized as follows:
Battle 1: Awaiting results. This was our December 2014 court battle. The judge must decide whether or not we have to recall currently sold products. A judgement was to be rendered as early as March 2015, but as of now we’re still waiting. The results will greatly affect the other two fights.
Battle 2: Early stages. We are appealing the nationwide all-ages rule that effectively bans magnet spheres. This is by far the most expensive battle, and our new product is largely to fund this legal challenge. But a product safer than skateboards should not be harder to obtain than guns. This is the most important one to win.
Battle 3: Just started. We get vindictively sued for purchasing raw fungible magnets from Magnicube, who was bullied into settling, even though the magnets came from the same factory we use for Neoballs, and we only used the same thing that would have been ok to purchase directly from China. They pulled the neat trick of labeling magnet spheres dangerous based on the bullied settlement of a fallen competitor, without any judge evaluating the merits. A large portion of our neoballs are now “stained” by recall until the outcome of this battle, which means we will only have a small portion of our Neoballs for sale by the end of year.
Magnets must be respected, but need not be feared.
💙 Zen Magnets
As of right now there *is* a Magnet Import/Manufacturing Ban, we’re still in it to win it.*
[Edit 5/6/2015: Tenth Circuit Lifts Stay on CPSC’s Magnets Rule via National Law Review]
[Edit 4/19/2015: Two Cheers for the Tenth Circuit via Forbes]
“The enforcement and effect of the Safety Standard for Magnet Sets is temporarily stayed until further order of the court.” On April 1st, 2015, at 4:50 pm MST the Tenth Circuit Court of Appeals granted our Motion for Stay, which temporarily nullified the magnet ban. See the order here. We’d have told you on the 1st, but nobody would have believed it wasn’t an April fools joke.
Historically, stays of this sort are very rarely granted, since courts generally tend to maintain the effect of safety standards while they are being contested. It’s especially noteworthy that the Tenth Circuit granted the stay three hours after we submitted our 20 page motion requesting the stay.
It’s far from time to post the “Mission Accomplished” banner, but this is a giant and tangible indicator of momentum. The temporary but indefinite ruling represents the first judgment outside of the CPSC’s walls which affects US consumers. While we cannot speculate what the Court might be considering, if the Court thought we had a losing argument it seems unlikely that it would have granted the stay.
Although there is no active import and manufacturing ban as of now, that doesn’t mean we can return to business as usual. The continued threat of a ban is itself an impediment to business; magnet sphere companies in the US are necessarily cautious about purchasing large quantities of magnets which take months to manufacture. We simply cannot risk driving full speed in the dark without knowing if a wall lies ahead.
How long until we’ll be selling Zen Magnets again? Hard to say. If we do attempt to manufacture more magnets during this stay, the quantities will be moderate. We’ll know a lot more
Although we are not selling Zen Magnets right now (4/3/2015), we do have enough funds to continue fighting, thanks to wonderful supporters such as yourself. As of right now, neither the CPSC website nor the Federal Register accurately reflect that the ban is currently suspended.
Stay tuned at newsletter.zenmagnets.com.
Magnets must be respected, but need not be feared.
❤ Zen Magnets
* We don’t have enough Zen Magnets to sell, more accurately. Especially since we give away an average of 3 sets per day through the Zen Gallery and various contests. We’re saving the last of our best as fuel for passion and creativity. Star our emails and you’ll be the first to know when Zen Magnets are once again for sale. We do however still have Neoballs for sale at Neoballs.com, and we’ll continue shipping and selling until they are sold out.
Zen Magnets is now the last surviving magnet sphere company still selling, standing, and fighting in the United States.
We’re at a critical crossroads between two options.
Behind Door #1: Shutdown & Stop-sales.
This makes the most sense from a business perspective. We exit the business as soon as possible with as much as possible, at the recommendation of nearly every lawyer and consultant we’ve talked to. We comply. We recall. The unique “Warnings don’t work” argument goes unchallenged in court. Nobody else stands in the way of the magnet ban rule-making. The CPSC sets the precedent of dodging the most public objection the agency has ever received for any single action item. The CPSC wins it’s gamble.
Behind Door #2: All-In for the Conscience.
Fight for: Warnings and Consent, Democracy, and beautiful spherical magnets. Because how others treat you is their Karma, but how you react is your Karma. Because the beauty and wonder that magnets generate is worth a rescue effort. Magnet spheres work exactly as they are supposed to, and nearly everybody (over 99.99%) is able to use them safely. Statistical polls show consumers would rather see a ban of tobacco, than an all-ages nation-wide non-consensual market removal of magnet sets used for art and education. We can sleep without regret, knowing that as the last company standing, Zen Magnets fought for what was right.
Nothing rational lies in between these two options, as costs and cortisol levels only go up from here on.
The paramount issue in this case is the CPSC’s argument that warnings don’t work, alleging that “No warnings or instructions could be devised that would effectively communicate the [ingestion] hazard so that the warnings and instructions could be understood and heeded by consumers to reduce the number of magnet ingestion incidents.” (Second Amended Complaint, ¶ 89) This issue alone makes an influential case with vast implications, as warnings are the traditional method used to encourage public safety.
Warnings are an agreement between a customer and product. The consumer retains the benefit of using and choosing a product, in exchange for the responsibility of doing so. And by assuming people are unable to follow or understand instructions — despite the lack of confirmed injuries linked to Zen Magnets — the CPSC makes the judgment that the American Population is not worthy or capable of deciding for themselves. By alleging that magnets “have low utility to customers” (SAC¶ 105) and are “not necessary to consumers” (SAC¶ 106) is non-consensually replacing a consumer’s judgment with a value judgement of it’s own.
It does not matter if you are a parent who knows your child can safely handle magnets. It does not matter if you don’t have children and want to use magnets at your own home. It does not matter if you’re a professor looking to build sculptures for demonstrations of molecular bonding or platonic solids. The CPSC is seeking no middle ground on the subject, and assumes with great prejudice, that the American population cannot be trusted to ever keep magnets out of the mouths of their children. As if magnets are the first product to be dangerous if misused by an audience it is not intended for.
Then there’s the fact that removing magnet sets from the market is the single most unpopular action item ever sought by the CPSC. And isolated from all other points, this fact alone warrants that the federal agency be challenged. Even those who are not interested in magnets (yet) will still have a vested interest in the accountability of their Consumer Product Safety Commission.
A peek at comments on related news will show a clear consensus against magnet prohibition. Statistically, PPP and Google Consumer Surveys have shown 9/10 consumers disagree artistic educational magnet sets should be prohibited to all ages. As required for the rule-making process*, the CPSC must receive public comments. In the rule-making for magnets, they received over 2,500 comments which were nearly all against banning magnets. These 2,500 comments represent more than half the comments ever received by the agency in its history.
And while we’ve received countless messages of encouragement, CPSC Commissioner Robert Adler reports to having received thousands of emails angry emails in objection. Adler, the reappointed chairman of the CPSC, “considers himself a pragmatist” and says he’s concerned about “resentment among members of the public.” When confronted about balloons having a greater incident rate than magnet spheres while sharing similar warning attributes, Adler says “we should be looking at balloons [too.]”
Magnet spheres are not defective, they work exactly as they are supposed to. Strong to hold formation. Round to allow connections at non-fixed angles. Used en masse for endless possibilities. There is absolutely no replacement or substitute for magnet spheres, nothing has the same dynamic tactile abilities that magnet spheres do. And to say that the appeal of magnets, is itself a problem, is entirely throwing the baby out with the bathwater.
The harm of products can be categorized in to three groups. There are products that are meant to cause harm. These are products like guns, pepper spray, brass knuckles, tasers, warships, and most other products that come out of the military industrial complex. There are products that may be reasonably expected cause harm, even if used responsibly. Alcohol, tobacco, trampolines, skateboards, ATVs, skis, snowboards. Things with warnings that say “Using this is inherently dangerous”. And then there are products that are only dangerous if misused. This is the category that every other product falls under, including magnet spheres. Anything can cause harm if misused.
By forcefully insisting on a comprehensive ban, instead of negotiating age labeling, or collaborating on an educational campaign, this becomes no longer a legal discussion about safety. This is about the US Government’s stance on whether or not art and education is a valid use for magnets, when it has no right to usurp the decision of “usefulness” from individuals in the first place. Having built a business on strong spherical magnets, we’ve seen first-hand that art and education are not only valid uses, but some of the best uses for magnets.
Vow to Fight
Take this as official notice that Zen Magnets LLC is going All-in, and taking “Door #2” as described above. We will not settle for any sort of stop-sale of magnets that are perfectly safe when not misused. The hearing is set for December, and we are committed to taking this influential case to trial.
We vow to continue this legal, awareness, and lobbying battle, until our very last drop of cash-flow blood. We will combat the CPSC’s magnet prohibition until triumph, or until a glorious death of insolvency on the legal battlefield. At the very least, we’ll have one more holiday season of availability.
Magnets must be respected, but need not be feared.
Founder, Zen Magnets
*It’s important to understand that the CPSC’s attempted to remove magnets from the US market is two pronged. The lawsuit is to force a recall & stop sale. Then there is the rulemaking, which tries to enact the ban. The CPSC won’t be able to ban magnets until after the lawsuit ends (or else risk showing prejudice as the appellant body of the complaint.) Were we to stop fighting, the magnet ban would pass with nobody left to push back.
If you would like to help stop the magnet prohibition, please go to savemagnets.com.
RE: Your letter requesting us to shut down.
It’s unusual for a response to the CPSC to be open and transparent to the world. But these are unusual circumstances indeed. Let me start by reminding the CPSC and the public:
- We have had exactly ZERO ingestion incidents; our magnets have never injured.
- We have never referred to our product as a toy, or marketed as such.
- We have never put our product on toy shelves, where kids can grab them and shove them in the faces of their parents.
Obviously we are being punished because children have regretfully misused our competitor’s magnets, which are similar in size and strength to ours. On 6/25/12, the CPSC Commissioners who have been in office for 3 years decided they would launch an unusually harsh administrative complaint lawsuit against Buckyballs; an action that hasn’t been pulled out of the CPSC arsenal for 11 years. Of over 2 million sets of Buckyballs sold in the past 3 years; there have been less than two dozen injuries. Buckyballs have always featured an ingestion warning. [Edit 6/8/12: Zen Magnets has now also recieved a CPSC Administrative Complaint. We are the first company to ever recieve this prior to any record of injury.]
Meanwhile, there will be about 100,000 injuries every year in the United States due to backyard trampolines which require Emergency Room treatment, and trampolines are marketed to children. The United States has over 5,000 childhood gun related deaths in a year. 30 American children will die from drowning in Buckets every year. And there have been more skateboard fatalities in 1 year than magnet sphere related injuries in 3.
In comparison, we have sold much less volume than Buckyballs, but magnitude of interest is comparable. If you go on Flickr which is the largest public photo sharing site, you’ll find 16000+ photos tagged with “Buckyballs” and 13000+ photos tagged with “Zen Magnets”. A search on YouTube shows 7150 videos of “Buckyballs”, and 4250 videos for searches of “Zen Magnets”. Despite these comparable gauges of interest, we have had exactly Zero ingestion incidents. By the way, if video views are any indicator of public reach, there are 7 times more views for the first Zen Magnets video, than all 86 CPSC YouTube Videos combined.
Not only is it unusual for the CPSC to target a product with such low risks, it’s unusual for the CPSC to target related companies that have caused no injuries. It’s also unusual for:
- *The CPSC, in citing the dangers of magnets, to cite sources that directly contradict the actions of the CPSC. The author said, “I don’t want the magnetic balls recalled because they are not broken products.”
- *Your badged federal agent, field investigator [Name Redacted] who came to visit our office in May, to say that she “Found our case to be extremely irregular … [she] didn’t agree with what was happening to us, and that she was only doing her job.” By the way, don’t fire her for showing some humanity. She was just doing her job, and seemed like a cool person.
*DozensHundreds of essays to be written against your recall and stop-sale requests. And HundredsThousands to petition in protest of the magnet prohibition.
Considering the documented therapeutic, artistic and educational benefits, there must be some context in which magnet spheres can be sold, right? It would much be less ridiculous if the CPSC was trying to pass regulation that required some sort of age verification similar to video game sites and movie sites. Even if magnets were to be regulated like tobacco (which would still be crazy), it would be more rational than the full on request to “immediately stop manufacturing, importing, distributing, and selling… and recall all products”.
Nobody disagrees with the CPSC when a stroller that pinches fingers is recalled, or toys with mechanical defects are recalled, or a coffee pot that burns people is recalled. But the current decision makers at the CPSC lack perspective in their current attempts to ban magnets. The CPSC is an important arm of the US Federal government, it “Protects the public from unreasonable risks of injury or death” from thousands of types of products. The keyword here is “unreasonable”, and while I agree that magnets are more dangerous than push pins or staples, the CPSC has shown no attempt to perform a cost-benefit analysis, and is fully failing its utilitarian duties. How much societal damage results from the slippery slope of absolving parents from the responsibility to read warnings? How many tax payer dollars have been wasted trying to minimize risks that are already insignificant? How much will the CPSC’s diminished public respect affect it’s organization’s safety goals?
We’ve complied with your invasive investigations, except for the part where you requested the names and addresses of each and every one of our customers. We checked with a few of our customers, and they were insulted that you even asked. In your letter to us, you say that “The Staff will make every effort to work closely and cooperatively with the firm [to] protect the public while at the same time create a minimum burden and inconvenience for the firm.” How kind of you. It would certainly be a big burden if we couldn’t sell the only product we provide. All things considered, we are requesting that the CPSC “cooperate” by complying with the demands of the public petition at savemagnets.com, and retract the stop-sale requests sent to all magnet sphere brands and retailers. The solution to the dangers of magnets is education, not prohibition. Even though there have been no ingestion incidents or injuries involving Zen Magnets, we’d love to work with the CPSC to ensure the continued safety of our customers if you have more reasonable requests.
You know our numbers. We’re a small company, and we have no investors to back us. If you drew the litigative sword to our necks, we don’t have the resources to defend. The squeakiest gear gets the oil; if you slice us down, the last of our company’s efforts will be to siren this injustice before we fall.
Again, we have served millions of magnets and there have been exactly zero ingestion incidents. I urge those within the CPSC to think twice before applying the death penalty to innocent corporate citizens. See below for the growing list of letters submitted against the CPSC’s magnet prohibition.
Founder of Zen Magnets