CPSC Magnet Rule Thrown Out By 10th Circuit

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By Julie A. Steinberg

Nov. 22 — Zen Magnets, LLC scored a win when the U.S. Court of Appeals for the 10th Circuit threw out a final rule that restricted the size and strength of its rare earth magnets ( Zen Magnets, LLC v. Consumer Product Safety Commission , 10th Cir., No. 14-9610, 11/22/16 ).

The Consumer Product Safety Commission failed to meet the requirements of the Consumer Product Safety Act for issuing a safety standard, the court said Nov. 22 in a 2-1 opinion.

The commission must make findings regarding the costs and benefits of a safety rule, and then must balance the costs and benefits to determine whether the rule is justified, the court said.

According to the court, the commission’s factual findings supporting the rule were incomplete and inadequately explained.

Specifically, the CPSC didn’t address ambiguities in data underpinning its findings as to the risk posed by magnet sets, the public’s need for them—for example, in education—and the rule’s effect on their utility and availability, the court said.

The court remanded the matter to the commission.

High-powered magnet sets have been associated with abdominal injuries. If two or more are ingested, they can damage intestinal tissue that gets clamped between them, the court said.

The CPSC said in the briefing package for the final rule there were 2,900 incidents related to children and teenagers ingesting magnets between January 2009 and December 2013, including one reported death of a toddler.

The commissioners approved the final rule Sept. 24, 2014.

Judge David M. Ebel wrote the majority opinion, joined by Judge Neil M. Gorsuch.

Judge Robert E. Bacharach dissented, saying he would have denied Zen’s petition for review of the rule.

The Law Offices of David C. Japha, P.C., represented Zen Magnets, LLC.

The U.S. Department of Justice represented the CPSC.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

For More Information

The opinion is available at http://src.bna.com/kf0

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