Not that long ago, lots of us were going out on Black Friday weekend and buying Buckyballs or some other stocking stuffer that used tiny high-powered magnetic spheres. Then we learned that these doodads can do an awful lot of damage if swallowed. Since 2009, the Consumer Product Safety Commission has been recalling these products and filing lawsuits against the companies that continue to make these potentially dangerous items. The CPSC even created a new safety standard that effectively bans the remaining magnetic products, but this week a federal appeals court overturned that rule.

The magnet controversy goes back to 2009, when these products first began to appear in the U.S. market. Around the same time, federal law changed to require that all toys in the U.S. must meet the so-called “toy standard” for safety set by the independent ASTM International.

This meant that any magnetic item marketed to people under the age of 14 has to meet certain size minimums and strength maximums. However, CPSC testing found that some magnet spheres were up to ten times more powerful than the maximum set in this standard.

The very real concern is that young children can and will swallow the magnets, which can become trapped in the digestive tract and do significant damage.

“High-powered magnets have caused unnecessary surgeries, debilitating injuries, irreversible gastrointestinal damage and other lifelong health impacts in infants, children and adolescents,” explains Dr. Benard Dreyer, President of the American Academy of Pediatrics, in a statement.

As a result of the new restrictions and increased enforcement by the CPSC, a number of products were recalled in the years that followed, including perhaps the most well-known brand, Buckyballs.

In 2014, CPSC finalized a new rule that applies the size and strength standards to all magnetic consumer products. So a company like Zen Magnets, which had tried to avoid the toy standard by marketing to adults and by including warning labels on its packaging, was effectively banned from selling its product in the U.S.

Zen asked the Colorado-based 10th Circuit Court of Appeals to review the regulation, and this week the panel split 2-1 in favor of overturning the 2014 rule.

The panel’s majority acknowledged that these powerful magnets can “pose a grave danger” and “cause serious damage to intestinal tissue,” but nevertheless concluded that the CPSC failed to meet the legal requirements for issuing a safety standard.

The court says that the Consumer Product Safety Act, which details how the CPSC is to set such standards, requires that the Commission consider four factors:
1. The degree and nature of the risk of injury sought to be
prevented;

2. The approximate number and type of products subject to the rule;

3. The public’s need for the affected products, and the probable effect of the rule on the utility, cost, and availability of the products;

4. How to reduce the risk of injury while minimizing adverse effects on competition or other commercial practices.

The two-judge majority of the appellate panel found that the CPSC had not properly considered the actual risk of injury from these magnets.

In support of the rule, the CPSC had presented emergency room data from 2009 through 2012, showing that some 900 injuries could be prevented by this ban. But the judges said this calculation doesn’t take into account the reality of the marketplace, as virtually every manufacturer except Zen stopped making the magnets by 2014 when the rule was finalized.

The court noted that sales of magnet sets plunged from around 2.7 million/year in 2009-2012 to fewer than 25,000 annually in the years since. Not surprisingly, related emergency room visits dropped into single digits by 2014, claims the court.

“In general, where there is a known and significant change or trend in the data underlying an agency decision, the agency must either take that change or trend into account,” wrote the majority [PDF], “or explain why it relied solely on data pre-dating that change or trend.”

Additionally, the majority opinion took issue with the methodology of determining the number of emergency room visits, noting that the 900+ visits/year figure was based on keyword searches and represented incidents “possibly involving the magnets of interest.”

“Underlying findings that peg the risk of injury as a mere ‘possibility’ provide the Court no assistance” in determining if a safety standard is reasonable to prevent injury, said the majority. “Almost anything is ‘possible.'”

“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,” reads the majority opinion, which also criticized the CPSC for not taking into account the public’s need for these magnetic products “as scientific and mathematics education and research tools — and the rule’s probable effect on magnet sets’ availability and usefulness for those purposes.”

It’s not that the court determined that there is a pressing need for the Zen magnets; just that the CPSC didn’t do the required analysis of this factor before finalizing its rule, explaining that “Without that information, the Court cannot accurately gauge the full costs of the safety standard.”

The ruling vacates the CPSC’s 2014 magnet standard (magnets must still meet the ASTM toy standard), and sends it back to the Commission to decide whether to give it another go.

In a dissenting opinion that is nearly as long as the majority ruling, Judge Robert Bacharach argued that Zen’s petition for review of the 2014 should not have been granted in the first place.

“In my view, the record supports the Commission’s findings on both the unreasonable risk of injury and reasonable necessity for the rule,” writes Bacharach, who points out that the CPSC didn’t just rely on the emergency room estimates for its rulemaking, but also surveyed physicians and cited peer-reviewed research.

Says Bacharach, “These sources support the Commission’s findings that injuries increased when the magnet sets entered the market and that the magnets posed an unreasonable risk of injury.”

The decision to overturn the magnet rule is not sitting well with consumer advocates and doctors.

“The court’s ruling to overturn the CPSC ban on high-powered magnets jeopardizes children’s health and safety,” says Dreyer of the American Academy of Pediatrics. “We simply cannot afford to let these life-threatening magnets find their way into the hands of our children.”

It’s a sentiment echoed by our colleague, Laura MacCleery at Consumers Union.

“We have seen too many cases where young children swallowed these tiny yet powerful magnets masquerading as adult products and suffered serious medical consequences – even death,” says MacCleery. “These are not the usual, run-of-the-mill refrigerator magnets and the CPSC’s safeguards are critical to protect the public. As we approach the holidays, it is more important than ever that parents be aware of how dangerous these products are. We urge consumers not to buy them or keep them around, especially if they have children that live with them or visit them.”

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