New Ban, New Brawl

Zen Magnets is Dead?

 

Zen Magnets may be defunct, but a community of magnet sphere users lives on. Thought this exchange was a good reminder of what we’re fighting for:

David Egilman, February 24, 2022 9:08:56 AM, said:

There is no reason to sell these products. Teh standard gives the misimpression that the products can be sold safely. No warning is adequate. For example: This does not account for non-English speakers, mentally impaired children or adults (think dementia). The suggested warnings have not been tested for efficacy. Finally the participation of sellers and manufacturers (more than 1) is a violation of anti-trust laws. This “standard” blocks competition over safety as do most similar ASTM standards.

———————-

Shihan Qu, February 24, 2022 1:33:13 PM, said:

Dear David Egilman,

I realize you’re a relatively recent addition to this group, so I’ll go over some of the previously discussed matters which you brought up, even though they are out of the scope of this workgroup. You’ve brought up 4 separate points, which I’ll address separately.

1. > “There is no reason to sell these products.”

Usually the magnet-ban advocates don’t say the quiet part out loud, so I applaud your frankness in stating your bias on the matter. I imagine your puerility with the usage of the product, stirred with your observations of how dangerous the magnets can be if ingested, lead you to fiercely claim that there is “no reason” for this product to exist.

I’ve also studied the injury profiles and incidents, and I place great weight on how hazardous strong magnets can be if misused; yet I’ve also heard from thousands who have personally given their accounts about how magnets have improved their lives, and from dozens of teachers who have found great benefits in the unique utility of bipolar magnets with infinite sides. I’m aware of more published academic articles in mathematics, physics and chemistry that are about (or feature) high powered magnet spheres, than there are medical journal articles about the dangers of their ingestion (of which there are many).
Here are a few to expand your understanding of the usefulness of the products:
https://iopscience.iop.org/article/10.1088/2399-6528/aadfc9/meta
https://aapt.scitation.org/doi/abs/10.1119/1.4973409
https://chemistry-europe.onlinelibrary.wiley.com/doi/full/10.1002/cphc.201800560
https://pubs.acs.org/doi/abs/10.1021/acsenergylett.9b02287

And even in the hypothetical that there wasn’t a huge audience and community who appreciate high powered magnet spheres — for example, even if there weren’t billions of views on the first page of “magnet balls” on a youtube search, to show an indicator of interest of magnet spheres is statistically likely to supersede whatever hobby you care about (like, unless it’s like taylor swift or a mainstream high-skull-impact sport that you love) — it doesn’t change that:

Whether or not the product has a “reason” isn’t *at all* up to you. Utility, like beauty, is in the eye of the beholder.

2. > “Teh standard gives the misimpression that the products can be sold safely. No warning is adequate. The suggested warnings have not been tested for efficacy.”

In my personal experience working with the wide range of first-time magnet sphere users to magnet super hobbyists, I’ve seen that people absolutely can use magnets safely. It’s not the first time there’s been a product that is dangerous if ingested.

One interesting thing that I’ve learned in the past 10 years is that an industry has been built upon warnings: Their language, size, placement, and even font, have consistent policies that are proportional to the hazards involved. Certainly through significant testing.

Yet, what we have here in ASTM-F3458-21 errs far on the side of safety. The warnings are stronger — in terms of placement, quantity, and language — than fireworks and cigarettes combined.

You might say, “well the hazards are hidden” and “people tend not to read warnings.” But most hazards are hidden until they are learned, which is the entire point of warnings. And while true that in the age of Apple terms and agreements, not everyone reads warnings, the purpose of the child resistant packaging is exactly to force consumers through user interaction design to read the warnings.

What’s truly unsupported by data, is the conclusion that no warning can possibly exist that — when supported by proper packaging design and sales methods — would adequately address the hazard.

I would argue that the removal of nuance from the discussion of magnet safety, and the pretense that magnets must either result in a torrent of injuries or be banned entirely, is exactly what led us down the path of so many horrific injuries in the first place. And to continue doing so as a future injury mitigation strategy would be similarly unwise and unsafe.

3. > “Finally the participation of sellers and manufacturers (more than 1) is a violation of anti-trust laws.”

My steelmanning interpretation of your concern is that companies with the profit motive should not have significant control over a group that is seeking to improve safety. A valiant generality if that’s what you’re trying to say. But here are my two thoughts about that, in this specific context:

A. It’s an entirely false narrative that manufacturers have a majority say here. It’s a narrative that was even pushed by the Washington Post (at the time, 2 companies actually sold the product). Perhaps a mistruth oft repeated because it’s necessary to garner sufficient support for a ban. The fact is, right now, only one company (Nanodots) actually produces the high powered magnets in question, of the 30 (40?, 50?) members of this workgroup. Almost all of those who support safe use of magnets here (instead of non-consensual forced non-use), including myself, have no profit motive. And indeed, even if the current version of F3458-21 becomes law, I will not be one to sell the high powered magnet sets in the future.

B. ASTM already prevents membership from being dominated by product producers. So is it your suggestion that those to be governed should have no say in the consideration of how they are governed? Frankly, this makes no sense to me, but maybe I put too much conviction in the principles of democracy.

4. > “This “standard” blocks competition over safety as do most similar ASTM standards.”

I’m not sure I understand which competition is being blocked here. It seems that removing the product category from consumer access without their consent would be the action that blocks competition. Please elaborate.

“PRODUCT SAFETY RECALL – All genuine Zen Magnets and Neoballs have been recalled and are no longer for sale.

Click here or call 1-844-936-6245 to receive a refund.

Click here to view the U.S. Consumer Product Safety Commission recall notice.”

 

Read ‘Joint’ Recall Press Release Here

Read Recall Consumer Targeted Letter Here

The above mandatory CPSC staff-approved communications were the most recent draft notices received by Zen, all of which were created by the CPSC without consensus from Zen Magnets. Regarding the “death” that from a “similar product” that CPSC frequently likes mention in the same paragraph as Zen Magnets, while very sad that such an event occurred, it’s important to clarify that:
1. The product involved with the death was not Zen’s product, and not marketed, labeled, packaged, or sold in a manner similar to Zen’s products.
2. The “Child A did not die from SREM use alone. The investigative reports show Child A ingested SREMs while living in an unsafe, unsanitary environment” according to a Judge who reviewed the details. There was “a lack of basic custodial supervision, which very likely could have prevented SREM ingestion in the first instance.” See page 18 of the 2016 ALJ Decision and Order for more details.

This CPSC Mandatory recall is mutually exclusive to the voluntary recall we’ve been offering since 2016, which allowed customers to send magnets back for any reason. To proceed with the CPSC Mandated recall, please fill out the following form:

CPSC Recall Form

 

FAQ

Questions ordered according to the frequency they are asked.

Q: What can I do to help/support/assist you guys?
A: We’ve read all of your emails, and are overwhelmed by the messages of support. And though Zen Magnets won’t be respawning this time, but continue to believe that the the right for adults to access recreational magnets is worth fighting for. If you agree, we’d direct your attention toward furthering the adoption of ASTM-F3458.
What is ASTM-F3458? Zen was the first to petition the CPSC for safer standards for recreational magnets after the 2016 ban was overturned for not having properly considered alternatives. The spirit of our petition for safer magnet standards lives on in ASTM-F3458, which requires warnings stronger than cigarettes and fireworks combined, plus child resistant packaging. In this case, we think the best strategy for fighting irrational regulation is with reasonable regulation. If you’d like to carry our torch:
1. Secure the standard. Participate in the development of ASTM-F3458, and don’t let it be hijacked. Consumers who care about 5mm magnets are needed. Become an ASTM member for $75 a year, and let Molly <mlynyak@astm.org> know that you’d like to participate as a consumer for the ASTM-F3458 standard.
2. Make it known. Don’t let the “magnets are kids toys” strawman arguments stand, or allow the CPSC or it’s lobbyists to get away with ignoring the existence of reasonable existing standards. Push for the enforcement of ASTM-F3458 as a balance between safety and liberty.

Q: I can use magnets safely because of (numerous valid reasons), can I still buy Zen Magnets from you guys anyways?
A: No. Sorry. Not from us. And not from anyone if you live in the US. If you’re looking for 5mm magnets spec’d similarly to Zen Magnets, we don’t have an answer for you. But you’ll still be able to find magnetic balls from various places on the internet. Try a search on eBay or google for example. If you make a site that lists all of the options, let us know and we’ll link it. And if/when you obtain high powered magnets elsewhere online, remember that they likely won’t be labeled and packaged as safely as our products were. Magnets must be respected, but need not be feared.
We do still sell 2.5mm compliance micromagnets and others things at Neoballs.com. Also, the Zen Magnets brand and business is for sale, so perhaps an entrepreneur in a different country – one that doesn’t ban kinder eggs – will bring it back for non-Americans. Contact us if that’s you..

Q: How do I get a refund/ opt in to the recall?
A: Start by filling out the form linked in the button above.

Q: Where do I send my letter/ how do I reach (CPSC/government) with my thoughts?
A: The CPSC Mailing address can be found here (https://www.cpsc.gov/About-CPSC/Contact-Information), and the emails of their personnel (https://www.cpsc.gov/organization-chart) use a First Letter + Last Name @CPSC.gov email pattern. For example, the CPSC commissioner emails would be: “Dana Baiocco” <dbaiocco@cpsc.gov>, “Peter Feldman” <pfeldman@cpsc.gov>, “Robert Adler” <radler@cpsc.gov>
But the CPSC, along with their primary magnet prohibition allies (Senator Blumenthal, Bryan Rudolph, Todd Frankel), are pretty good at simply ignoring what doesn’t line up with their agenda. Your viewpoints about adult access to magnets will probably make a bigger splash if directed to your own city and state representatives.

If you have questions not answered above, please reach out to contact@zenmagnets.com with “CSPC Recall Question” in the subject and we’ll add it on this page if it’s asked more than 3 times.

The following is our public response to the CPSC email we received on 8/16/21. Screenshot here.

Hi Madeleine,

Here I am sitting on the toilet checking my email, and much to my surprise – with matters still unconfirmed – the CPSC says tomorrow morning they’ll be sending out a one-sided recall notice. SURPRISE! Oh CPSC, that’s so CPSC of you. *Cue sitcom laugh track*

To my recollection, I’ve been waiting over a month for y’all to decide whether you wanted a recall, or dissolution/bankruptcy proceedings from Zen by requesting Zen’s compliance outside of it’s financial capabilities. E.g, insisting that we send multi-page first class letters to the tens of thousands who have ever purchased Zen Magnets.

I suppose it’s good that CPSC has decided it would rather have a recall within the capabilities of Zen rather than its dissolution. That’s at least a choice that’s consistent with what the CPSC has said and done in the past.

Unfortunately, the toilet upon which I sit is several states away from my computer, so… no I can’t set up the toll-free number right now, within half a day’s notice. I’ll have the tools and access to modify the site and send notices when I’m back in Colorado in about a week (on the 25th of August). Excuse the delay, though there isn’t really a delay, since we’ve been offering a voluntary recall since 2016 for anyone to return Zen Magnets and Neoballs for any reason. And we haven’t sold 5mm magnets since 2020.

For now, this phone screen typed email response pushed to wordpress will have to cover explaining the slight delay in updates and recall processing.

-Shihan Qu

——–

This text was sent to press seeking comment by email:

Although Zen Magnets LLC has had more success fighting the CPSC than any company in the past decade, in the end the same group of people who decided to sue Zen in the first place (CPSC Commissioners), got to play as the appellant body to decide that they were always right in the first place. Zen Magnets is honored to have been the leading voice of the majority of consumers who believe that adults should be able purchase recreational high powered magnets, in the CPSC’s continual and uncompromising War on Magnets. While the median age of our users was 34 years, we fought hard for the middle ground where recreational magnets could be used, sold, and labeled safely, rather than a nationwide all-ages prohibition that the CPSC seeks of our magnets.

We’ve been offering a voluntary recall since 2016: https://zenmagnets.com/public-releases/march-2016-update-whoa-we-won/, allowing customers to return magnets for a refund for any reason, including if they didn’t feel safe with them, didn’t think they could keep them from being swallowed, or was unable to understand why they are dangerous, or didn’t like the name Zen Magnets. So the only real difference here is a sales prohibition of the specific recreational magnet spheres which carried the loudest warnings, leaving only competitors that are often sold as children’s toys.

The biggest falsehood that the CPSC and their lobbyist & press partners continue to advance is that there was a “ban” from 2012-2016 that led to a drop in injuries. This is 100% false. There was no mandatory standard adopted in 2012 in any manner that could have been construed as a ban. The CPSC’s magnet set ban was effective from 2015 to 2016. It was the CPSC’s enforcement of existing toy safety laws (ASTM-F963) that reduced magnet injuries in 2012. The same type enforcement that the CPSC visibly chose to forgo, coincidentally or not, while Trump was in office.

Zen Magnets was the first company to petition the CPSC for safer standards for recreational magnet sets after their 2016 ban was overturned by a Judge, for not having properly considered alternatives. After much work with other companies, doctors, and human factors experts, the spirit of our petition for safer magnet standards lives in a new standard ASTM F3458 – 21 (https://www.astm.org/Standards/F3458.htm) which requires recreational magnets to have warnings stronger than cigarettes and fireworks combined, and packaging that’s safer that laundry detergent pods and on par with pharmaceuticals.

Though it is likely we may never be able to sell our flagship magnets again, we are hopeful that the millions of fans of 5mm magnet spheres continue fighting for their consumer rights, by:
1. Reminding the regulators in charge that they could easily adopt this new standard – that is excessively safe in comparison with other hazards – and could still allow adults to still access 5mm magnets.
2. And that high powered magnet sets are already banned in kids toys, and they should not be waiting to enforce the children’s toy safety laws until they can also prohibit adults from purchasing recreational magnets.

[Edit 12/8/2020, just got off the phone with the Lawyers, odds of stop-sale of Zen Magnets and Neoballs are 100%, and it will come as early as Dec 21. Here’s an update direct from our legal counsel:

After the Tenth Circuit ruled that the District Court of Colorado erred in finding Zen’s due process rights had been violated by the CPSC in the administrative adjudication, it paved the way for the CPSC to enforce its Final Decision and Order (FDO) from 2017. The FDO, if it becomes effective, would prevent Zen Magnets from manufacturing for sale, offering for sale, distributing in commerce, or importing into the customs territory of the United States, the Subject Products.

Right now, Zen Magnets and the CPSC have been ordered to provide a joint status report to the District Court no later than December 21, 2020. So, it’s possible that the stop-sale provision of the FDO could take effect before the end of this year, depending on how fast the District Court issues its final order.

]

[Edit 11/2020, after some recent legal updates, Zen Magnets will probably end sooner than expected. Potentially before the end of 2020.]

TL;DR:

1. The Zen Magnets company may have to stop selling recreational magnet spheres as early as February 2021.[Edit 12/8/2020: Dec 21 2020]
2. We’ll be the first magnet sphere company to include child resistant packaging with all of our high powered magnets anyways.

 

Potential February 2021 Expiration

 

A paragraph of background for those who are here recently from the Neoballs side of things: The Zen Magnets company is the longest standing magnet sphere company. We’ve been in a marathon legal battle with the US Federal Government for 8 of 11 years of our existence. It’s because Neodymium magnets are dangerous if swallowed and may require surgical removal if they get stuck. Plus, like fireworks and trampolines, children find them appealing, and so they must be banned for adults… oh wait… Cue mental montage of a flurry of motions, orders, flights, depositions, in-court oral skirmishes, and the fiery sacrifice of 400k magnets in steel ovens.

Cut to the present. A recent court order was issued in the CPSC’s (Consumer Product Safety Commission’s) favor in the recall arena. Our lawyer says we have until at least February to keep selling magnets based on the expected timelines. You can see the order here, our response here. The order was written by Judge Bacharach, the same judge who previously rebuked comparisons with latex balloons by claiming that balloons were harmless (seemingly unaware that balloons are the number one cause of child asphyxiation in America).

We may be the world record holder in most wins against the CPSC – largely because we’re not shy about the hazard of magnets and cover our products with more warnings than skateboards, chainsaws and cigarettes combined – but our combat coffers aren’t as bottomless as the taxpayer funded Feds. We’re still fighting, but our odds of continuing sales of magnets in 2021, are less than 50% [Edit 12/8/2020: 0%, we will need to stop sale], unless we pack our magnets into shotgun shells to sell as ammunition.

 

Child Resistant Packaging

 

From a broader perspective, the legal battle is only half of the war on magnets. As much as we’re fighting against the government’s seizure of consumer consent, we’re also fighting for magnet safety by leading the struggle against societal perceptions that high powered magnets sold by others are kids toys (they’re not, and shouldn’t be.)

Despite the fact that we sell like a percent of the high powered magnet sets on the market, we were the first to petition the CPSC for rules that required industry-wide child resistant packaging in 2017. We continued those efforts through ASTM with magnetsafety.org, a group we co-founded to promote safe use of recreational magnets.

And so the future of recreational magnets has been sandwiched between a rock and a hard place. From the front, many firms are still selling sets of hazardous magnets without proper labeling, often marketed explicitly to toddlers and children, which has been illegal since 2009 but especially underenforced since 2017. And from the flank, the CPSC and their Advocacy Partners have continually voted against the requirement of child resistant packaging and even reduced existing toy safety enforcement to strengthen the narrative that recreational magnets are toys for children. A strawman erected as if to announce, “We’d rather let there be more injuries than get less than the prohibition we’ve always wanted”

Now, to further parry the impression that recreational magnets are kids toys, Zen Magnets will be the first to have child resistant packaging on all high powered magnet products on par with packaging standards in the pharmaceutical and recreational marijuana industries. Production on new packaging has already started, and there will be a transition over the next few months. We think this is the right thing to do to push magnet safety forward.

Even if our company doesn’t make it out alive.

-Shihan Qu
Founder, Zen Magnets LLC

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”.

 

#CPSCISGUILTYASHELL

 

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.

 

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“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:

Denver Westword – NancyNord.net – Law360 – 10th Circuit Ruling – Lexology

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,

-Shihan Qu
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.

Now what?

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.

Dear CPSC,

 

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.

-Shihan Qu

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.”

 

Battle Summary

 

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 contact@zenmagnets.com

90% Victory, 10% Recall

TL;DR: Zen Magnets won the 2014 hearing. Judge concludes proper use of magnets creates no danger. Some recalls. Still no Zen Magnets to sell.

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.

Regarding Defect:
“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.

Regarding Warnings:
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.”

Regarding Utility:
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]”

Regarding injuries:
“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.”

 

RECALL Information

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.

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.)

FAQ

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