Continuing the Zen Magnets saga, the Consumer Product Safety Commission (CPSC) faces a challenge to a rule banning products containing small, high-powered, separable magnets. CPSC has asserted that these kinds of small, high-powered magnets can cause serious medical issues when more than one magnet is swallowed because the magnets attract each other through internal body tissue.
In late 2024, the Tenth Circuit Court of Appeals heard oral arguments from both CPSC and MagnetSafety.org, which has challenged the ban. MagnetSafety.org, represented by the New Civil Liberties Alliance (NCLA), argued that the underlying data does not support CPSC’s rule. Specifically, MagnetSafety.org argued that the risk posed by the banned magnets “exists as a result not of their size, but of their attractive forces and materializes only when those attractive forces actually attract another magnet . . .” According to MagnetSafety.org, CPSC overestimated the risks associated with the magnets because it failed to distinguish between multiple-magnet and single-magnet ingestions.
This is not the first challenge to a CPSC ban on high-powered magnets. In 2016, a Tenth Circuit panel vacated a similar ban on magnets that CPSC issued in 2014. The Tenth Circuit vacated and remanded CPSC’s 2014 ban for further proceedings, consistent with the court’s finding that CPSC failed to meet the Consumer Product Safety Act’s requirements. The court based its ruling on CPSC’s incomplete and inadequately explained factual findings.
The rule underlying current ban at issue, promulgated in 2022, is similar to that previously vacated by the Tenth Circuit. According to NCLA, in adopting the new rule, “CPSC repeated errors that led the Tenth Circuit to sideline the previous ban.” For example, CPSC did not “disaggregate the magnet ingestion increase from the increased ingestion of small items and differentiate between high-powered and other kinds of magnets, making it impossible to confidently say that substantial evidence supports CPSC’s cost-benefit analysis.”
During oral arguments, the Tenth Circuit panel asked questions critical of MagnetSafety.org’s arguments. For example, as Judge Nancy Mortiz pointed out, “the evidence that is available as to these emergency room visits, it’s not that granular.” Noting that CPSC explained the limitations of its data, she asked, “What more are you suggesting the Commission could have done here?” Counsel for MagnetSafety.org suggested that CPSC could have looked to imaging studies to determine what children had actually swallowed.
Counsel for the Department of Justice, representing CPSC, argued that MagnetSafety.org’s contentions about whether the agency overcounted injuries by failing to distinguish between single and multiple magnet ingestions were simply qualms with the agency’s methodological choices. “We fully concede that data is not perfect,” CPSC’s counsel noted. “That is the nature of regulation. You can’t definitively know.”
The Tenth Circuit has not yet given any indication as to when it will reach a decision. Until that time, CPSC’s ban on small, high-powered magnets will remain in place. We will continue to monitor the case and provide ongoing updates.
[View source.]
