Over the past two years, the Consumer Product Safety Commission has been actively crusading against the sale of small neodymium sculpture magnets, colloquially called "buckyballs," citing the high risk factor of children potentially swallowing these powerful magnets, resulting in what has been described by the agency as "a gunshot wound to the gut with no sign of entry or exit" as they pin against each other, breaking through intestinal tissue, and necessitating surgical removal.
In 2012, following a passionate letter by US Senator Kirsten Gillibrand (D-NY) to the CPSC, pleading for a ban on these toys, saying "the current warnings on the packaging have not reduced the number of incidences of accidental ingestion, and in fact, cases are on the rise," the agency sued the three major magnet producers—Buckyballs, Magnicube, and Zen Magnets—attempting to force bankruptcy via mandatory recall. Although Buckyballs and Magnicube quickly and quietly shut down operations and initiated a recall, Zen Magnets, who had never been subject to an injury complaint, fought the suit, and as of yesterday, have begun a three-week hearing with the CPSC to determine the validity of the lawsuit and potential ban, which would go into effect April 1, 2015.
We spoke with Zen Magnets owner, Shihan Qu, to learn more about why, according to him, this innocuous toy has been getting so much attention. Shihan recently released a video detailing what he claims are the dishonest statistics used by the CPSC to justify the ban.
VICE: Based on your video, it seems as though the CPSC is hell-bent on stopping you guys. Why?
Shihan Qu: Well, one of the past commissioners told me that she thought it was because back in the mid 2000s the agency got a lot of backlash for not regulating magnetic toy products after a child died due to ingestion. So it seems like they're taking it all out on these magnet spheres now, and after these past few years, they're kind of entrenched in the battle, they have too much momentum, and if they turn back now it'll look bad on their agency.
Do you feel like a scapegoat?
Yeah. It's so they can look like they're doing a lot when there's relatively little risk to shut down such a small industry, unlike something like detergent pads. A little while ago they were going after Proctor & Gamble, and just last week they had a meeting about altering standards with them, but they wouldn't do that for us.
Their language concerning detergent packs read like an advertisement: "A product intended to make your clothes clean and bright should not lead to a parent having to call the poison help line because their child is in distress," while the decision on Buckyballs talks about the "sacred charge" of protecting children.
I mean, that's exactly it, and there are a ton of other harmful products. Say somebody goes and dies on a bike; it doesn't get the same kind of attention obviously, even though trampolines and balloons have a much clearer injury rate than these magnets.
To be clear, though, swallowing these magnets can lead to serious harm, more so than swallowing a marble or falling off a bike.
Oh for sure, don't get that wrong. They're more dangerous than many other products, and they definitely require more care, but that doesn't mean we should ban them. It means they should be respected.
In your video about the ban, you say that the CPSC data used to support the ban was very misleading.
Extremely misleading; there are so many false positives from there it's not even funny. They're projecting from 72 [injuries], and they even include specifically magnets that are one centimeter in diameter, even though magnet spheres are like half the diameter of that.
But that's part of the wording of their ban, isn't it? It's not a complete ban on spherical magnets, only those of a certain size and strength.
Yeah, so technically it's a ban on small magnets that are strong and small enough for a child to ingest, which covers pretty much all sculpture magnets. They need to be strong and they need to be small, if they were any bigger—say, two inches in diameter—they would be so strong they could amputate your fingers, and it would be very hard to pull them apart, like hard drive magnets.
But in terms of strength, could you not put out weaker small magnets as sculpture magnets?
No. That's actually something that one of our experts have addressed. If they were weak enough to be below the guidelines, you could barely build anything. You could build nothing with them, literally. You can't build anything rectangular, they don't really hold formation beyond two layers because they'd just fall apart, and if you were to drop them on the ground they would just scatter everywhere.
Somebody on Reddit suggested marketing them as bullets to get around the necessity of the ban, which is kind of silly, but why not just rebrand them as not toys?
It's a pretty ironic loophole to joke about, but the new guidelines have most recently added, in the past year, that magnets must also be banned based on how they are most commonly used. So usually bans are based on how they're marketed, how they're intended to be used, but now it's about how they're commonly used—which means there's no way we can sell them as, say, industrial magnets, because the spheres are still commonly used for sculptures.
So you guys are the last ones still fighting to stay in business.
Yeah, we're the very last ones.
Why are we fighting?
Yeah, what keeps you going?
You know, the actual answer is two-fold. First of all, I want to keep selling magnets, I want to keep making money from magnets, I want to keep seeing the magnets provide inspiration and joy for people. And man, I love magnets. But number two is that I really feel like the CPSC is stepping out of bounds, and that somebody needs to go and teach them some humility. And as much as I want to win, I really want to see the CPSC lose. It's not only about the financial incentives.
So I'm assuming that for this hearing on Monday, you'll be arguing that the data doesn't justify the ban?
Um, I don't think so. I think the CPSC is going to try to keep that information out of the trial. It's a three week long hearing, and it's in front of an administrative law judge. The CPSC are going to say that all the rule-making stuff is separate, and they're going to basically try to avoid any talk that would involve the ban itself.
How has the public support been?
Oh man, if this were on a ballot, it would be laughed off so fast. But of course, it's not, it's just unelected bureaucrats in Washington doing whatever they want. So basically it's a pretty solid 88 percent that opposed a magnet ban for all ages. The majority believes that the proper age would be above eight, because that's the age approved for science kits. There's two public polls, one by Public Policy Polling and Google Consumer Surveys.
What can people do to sway the CPSC's opinion?
I don't think they necessarily can be swayed. They've already made their decision. There was a period of time when they had to take public comments, and during that period they received over 2,500 comments and that was more than half of the comments the agency had ever received in their history, but still they dismissed it.
Not to be too bleak, but then what hope is there?
What hope is there? Well, we're going to appeal to the rule-making, we're challenging that. And also, concerning the recall, we're fighting that, although the rule-making is a bit more complicated. And way more expensive, I'll tell you that. But they've already made their decision—they're banning magnets, that's that, it's up to us to try and fight it.
After I had this conversation with Qu, I got in touch with Scott Wolfson, the Communications Director for CPSC. Although Qu seemed to have a problem with the number of accidents used for the ban, Wolfson stressed that their approach has been comprehensive and not solely based on the number of incidents, and without adequate voluntary standards, they've had to "step in and step up" to take action. When asked why not simply include an age limit or warning label, the CPSC explained that educating and warning labels don't really do much, and that small magnets "pose a unique risk." Apparently, children don't often tell their parents when they swallow them, and doctors often don't take x-rays to diagnose the problem correctly, sending kids home instead, as was the case with 19-month-old Annaka Chaffin who died last year from ingesting magnets. I asked why, in that case, do certain other dangerous products simply receive warning labels (as Qu pointed out with detergent pods) but Wolfson denied that it was so simple. He explained that safety standards had been raised for pods and were more severe than simple warning labels, including calling for ingredient changes and tamper-proof containers.
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