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