{"id":662,"date":"2016-11-28T02:30:23","date_gmt":"2016-11-28T09:30:23","guid":{"rendered":"http:\/\/zenmagnets.com\/?p=662"},"modified":"2016-11-28T02:30:23","modified_gmt":"2016-11-28T09:30:23","slug":"magnet-ban-cleared-game-on","status":"publish","type":"post","link":"https:\/\/zenmagnets.com\/testing2\/public-releases\/magnet-ban-cleared-game-on\/","title":{"rendered":"11\/29\/2016: Ban Cleared."},"content":{"rendered":"
TL;DR: We\u00a0beat the magnet ban. Whew. Immediately beginning production<\/a> of\u00a0Zen Magnets for Q1 2017 delivery<\/strong>.<\/h5>\n

\"2017preorder\"<\/a><\/p>\n

Dear CPSC,<\/h2>\n

 <\/p>\n

It seems like just the other day\u00a0that magnet spheres were regulated more restrictively than cars, cigarettes\u00a0or\u00a0alcohol 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.\u00a0It didn’t matter if a single adult wanted magnets for themselves, or if a parent wanted to decide\u00a0for themselves and their family; the government didn’t agree and consumer consent in the matter was not required.<\/p>\n

Today we are excited to\u00a0once again take\u00a0orders<\/a> of Zen Magnets for immediate production.\u00a0On 11\/22\/2016, the 10th Circuit vacated (read: overturned) the magnet set rule.\u00a0We are so<\/em> grateful for the community support and encouragement we’ve received that makes our stand possible.<\/p>\n

For the past two\u00a0years,\u00a0we’ve been the last company standing against\u00a0the Consumer Product Safety Commission’s war on magnets.\u00a0Despite our – first in decades – court victory against the CPSC recall\/stop-sale in March, we were disheartened\u00a0to still\u00a0be unable to provide Zen Magnets due to the concurrent import ban. Embittering that – even after\u00a0a judge found\u00a0our 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.\u00a0This judgement\u00a0literally couldn’t have come any later for our little magnet company. Feasibly\u00a0this presents\u00a0an opportunity for the CPSC, together with Zen, to really address the magnet safety problem.<\/p>\n

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\u00a0(but safer<\/a>), they\u00a0are not children’s toys, and we’ve not sold them as such. High power magnets are not defective, they operate\u00a0exactly as they should. The real fight we both need to work towards\u00a0is educational: high powered magnets should be kept away from any mouths and young children who don’t know better.<\/p>\n

What makes the\u00a0CPSC’s\u00a0war on magnets so unrelatable\u00a0is the dis-proportionality of the loud red alarm blaring from\u00a0the\u00a0consumer\u00a0safety advocacy machinery. There’ve been a lot crisis level lectures, like “teens will use them as tongue piercings<\/a>!” but lacking\u00a0context such as, “high school sports are more dangerous<\/a> in terms of ER injuries and fatalities, per participant.” A bunch of\u00a0imbalanced rhetoric\u00a0like, “magnets are inevitably ingested by babies and therefore must be unavailable to\u00a0all”, yet\u00a0for pools – which are similarly prevalent and\u00a0much more deadly<\/a> to infants and children – the CPSC issues supervision<\/em>\u00a0tips and safety\u00a0advisories<\/a>. The message that neodymium magnet spheres sets are so dangerous that citizen consent must be bypassed, is not only unbelievable, but insulting.<\/p>\n

Perhaps it’s understandable how the CPSC’s magnet antagonism\u00a0came to be. Magnet spheres\u00a0were a relatively new product which caused slow but severe injuries, with relatively new injury mechanisms like ‘debilitating\u00a0gastrointestinal damage’.\u00a0These aspects made magnet spheres the perfect nail for the CPSC’s ferocious regulatory hammer.\u00a0Indeed it’s\u00a0much less excite-worthy when a child suffocates on a balloon, the #1 cause of child suffocation<\/a>, a\u00a0novelty everyone grew up with and often believe to be harmless (e.g. Judge Bacharach).\u00a0Balloons are much more likely to kill your small child than magnets. But\u00a0balloons are less alarm-worthy\u00a0because\u00a0suffocation is old news, happens quickly, and generally leads to death, death, and death.<\/p>\n

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\u00a0likely all of their\u00a0adjacent neighbors disagree<\/a> with the\u00a0nationwide all-ages market removal\u00a0of neodymium sculpture magnets that’s been furiously pushed in the past four years.<\/p>\n

If (and when) CPSC\u00a0continues waging its taxpayer funded war on magnets, our pledge\u00a0remains 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\u00a0neodymium magnet\u00a0sphere 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. \ud83d\ude09 ) Instead of driving Zen\u00a0out of business, and pushing production\u00a0further from the CPSC’s field of view, I’d rather\u00a0use our\u00a0resources to fight alongside the\u00a0CPSC\u00a0for<\/em>\u00a0successful\u00a0educational and awareness campaigns\u00a0focused on consumers and medical professionals.<\/p>\n

Magnets must be respected, but need not be feared.<\/h4>\n

-Shihan Qu<\/p>\n

Founder, Zen Magnets<\/p>\n

\"\"<\/p>\n

<\/h2>\n

Appellate Court\u00a0Decision<\/h2>\n

 <\/p>\n

On November 22nd, 2016,\u00a0the 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 \u201cthe Commission\u2019s prerequisite factual findings, which are compulsory under the Consumer Product Safety Act, 15 U.S.C. \u00a7\u00a7 2051-2089, are incomplete and inadequately explained.” As such, the Court ruled to \u201cVACATE and REMAND to the Commission.” The full ruling can be found here<\/a>. (mirror<\/a>)<\/p>\n

Regarding ER injury statistics<\/strong>, aka the “CPSC Epidemiology Elephant<\/a> in the room”, the 10th Circuit wrote:<\/p>\n

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.<\/p><\/blockquote>\n

Regarding cost-benefit analysis<\/strong>:<\/p>\n

Although the Commission\u2019s evaluation of the costs of the rule to magnet distributors was adequate, its evaluation of the costs to consumers was incomplete.<\/p><\/blockquote>\n

Regarding the simultaneous regulatory enforcement<\/strong>:<\/p>\n

The Commission\u2019s benefits findings\u00a0… 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.<\/p><\/blockquote>\n

“Once again, Zen has shown that it is possible to fight the federal government and win.” Says Former CPSC Commissioner Nancy Nord<\/a>. “It may be that, through Zen\u2019s actions, the CPSC will come to understand that it can protect consumer safety without disregarding basic notions of due process.”<\/p>\n

 <\/p>\n

Battle Summary<\/h2>\n

 <\/p>\n

Is the war on magnets\u00a0completely over? No, it’s still very much ongoing. Our current legal situation is summarized as follows:<\/p>\n

Battle 1:<\/strong> Victory, for now<\/em>. 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\u00a0episode. Zen was the\u00a0first in 20+ years to successfully contest a CPSC recall.<\/p>\n

The CPSC has already indicated intent to appeal.\u00a0“That appeal will be heard and decided by the five members of the CPSC<\/a>\u2014the 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.<\/p>\n

Battle 2:<\/strong>\u00a0Victory. This is the nationwide all-ages magnet set rule\u00a0that just got vacated. (Yay!) Interesting fact: the\u00a0CPSC’s two-pronged approach was quite an unprecedented surprise. Many (including ourselves) had\u00a0predicted 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\u00a0showing any prejudice by voting for it.<\/p>\n

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\u00a0deficiencies were: the ambiguous epidemiology stats, the inadequate consideration of consumer utility,\u00a0and 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.<\/p>\n

Battle 3 (updated 12\/1\/16):<\/strong>\u00a0Settled\/loss. The one where the CPSC via DOJ was suing\u00a0for $15 million for “selling recalled magnets<\/a>.” 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…<\/p>\n

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. \u00a0If you have any brilliant ideas on how to destroy them, email us at contact@zenmagnets.com<\/p>\n","protected":false},"excerpt":{"rendered":"

TL;DR: We\u00a0beat the magnet ban. Whew. Immediately beginning production of\u00a0Zen Magnets for Q1 2017 delivery. Dear CPSC,   It seems like just the other day\u00a0that magnet spheres were regulated more restrictively than cars, cigarettes\u00a0or\u00a0alcohol in the US. A week ago there was no acceptable warning, no acceptable age, no sales restriction nor waiver that allowed […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"_links":{"self":[{"href":"https:\/\/zenmagnets.com\/testing2\/wp-json\/wp\/v2\/posts\/662"}],"collection":[{"href":"https:\/\/zenmagnets.com\/testing2\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/zenmagnets.com\/testing2\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/zenmagnets.com\/testing2\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/zenmagnets.com\/testing2\/wp-json\/wp\/v2\/comments?post=662"}],"version-history":[{"count":0,"href":"https:\/\/zenmagnets.com\/testing2\/wp-json\/wp\/v2\/posts\/662\/revisions"}],"wp:attachment":[{"href":"https:\/\/zenmagnets.com\/testing2\/wp-json\/wp\/v2\/media?parent=662"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/zenmagnets.com\/testing2\/wp-json\/wp\/v2\/categories?post=662"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/zenmagnets.com\/testing2\/wp-json\/wp\/v2\/tags?post=662"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}