Buckyballs Dies, Fight Against CPSC Continues

Several weeks ago, we here at Abnormal Use lamented the death of Buckyballs, the controversial desktop magnet, after its two year fight with the Consumer Product Safety Commission (“CPSC”). The Buckyballs saga grabbed our attention from the outset after Buckyballs’ CEO Craig Zucker publicly ridiculed the CPSC’s draconian measures. As traditionally harsh critics of the CPSC, we applauded Zucker’s efforts and were saddened when Zucker finally succumbed to the CPSC back in May.

Little did we know, there still remains a ring bearer in the Fellowship of Magnets.

According to a report from Reason.com, Colorado-based Zen Magnets continues to fight against the CPSC over the right to manufacture and distribute spherical magnets. Shihan Qu of Zen Magnets described to Reason his ongoing fight as follows:

I have two very distinct but related motives for continuing this fight.

The first one is obvious. I want to win. I want to keep selling magnets. I want to continue seeing the passion, joy, and inspiration they bring. I want to stay in business. I want to see a victory for magnets.

But number two, I want the CPSC to LOSE. I really really want them to lose. They need some humility and to be reminded of the standard of liberty in this country.

The single biggest issue that must be challenged, the aspect that makes this a landmark case, is that this is the first time the CPSC is arguing that warnings don’t work, which has incredibly vast policy implications. Putting warnings on this is mostly what the CPSC does. Small parts, choking hazards, etc.

Warnings are a sort of agreement a customer accepts upon use of a product. And by assuming that people cannot follow — by the way, there is still nobody who can confirm even a single Zen Magnet ingestion incident — instructions to keep magnets away from children and mouths, they are assuming the American Population is not capable of deciding for themselves. They are taking your right to consent, and fleecing your freedom to do as you will.

We’re the last line of defense, and if Zen Magnets doesn’t stand up, the CPSC gains a remarkable amount of power from consumers. They show the ability to determine behind their closed walls, what America can and can’t have, despite roaring public opposition. They set the precedence of creating an all-ages, nation-wide ban, with the assumption that an American cannot be “expected” to understand or follow warnings.

We must applaud Zen for continuing the sojourn. We are particularly intrigued by the company’s thoughts on product warnings. While we do not believe that a warning label should grant a license to sell any product, we, too, have often questioned why the CPSC had problems with these magnets despite what appears to be appropriate warnings. In this case, the CPSC seems to belittle our sense of free will and decision-making at the expense of these companies. Regulation can serve its purpose, but it shouldn’t deprive us of our own ability to self-govern. Unfortunately, we fear Zen will ultimately share a similar fate with Buckyballs. Nonetheless, we applaud its efforts.

R.I.P. Buckyballs

Buckyballs, we hardly knew ye. Last week, the Consumer Product Safety Commission announced a formal recall of the controversial product, putting an end to the two year fight with the product manufacturer. The recall comes on the heels of a well-publicized fight between the CPSC and Buckyballs’ CEO Craig Zucker. After the company openly mocked the CPSC’s efforts to ban the spherically-shaped magnets, the CPSC, in an unprecedented move, went after Zucker personally. While Zucker fought valiantly, he eventually succumbed to the CPSC back in May, agreeing to place $375,000 in trust to facilitate the recall.

We here at Abnormal Use are in a state of mourning now that the recall has come to fruition. Not just because we question the motives of the CPSC. Not even because the Buckyballs saga has been a great source of blog fodder. But, rather, because we respected the fight in Zucker. It is one thing for us to criticize the CPSC behind the protection of our computers. It is quite another to directly challenge the CPSC’s methods.

Never again will we see the likes classic CPSC burns like:




Zucker and Buckyballs are the Secretariat of the product recall world. There will never be another. Like DiMaggio’s 56-game hitting streak, Buckyballs will never be forgotten. We all knew it had to end at some point, but, unfortunately, it was the CPSC that had to be Zucker’s game 57.

CPSC Reaches Buckyballs Settlement, Sets Dangerous Precedent

On a number of occasions, we  here at Abnormal Use have reported on the ongoing legal battle between the Consumer Products Safety Commission (CPSC) and the makers of a toy called Buckyballs (see here and here).   After nearly two years, the CPSC has finally reached a settlement with the former CEO of the manufacturer of Buckyballs through which the toy will be recalled. By way of a refresher, Buckyballs are pea-sized  magnetic balls that are ultra-strong and can be stacked or shaped in fun ways.  The potential problem: If a child swallows more than one ball, the powerful magnets can cause serious internal injury.  The CPSC has likened the injury to a gunshot wound.  In spite of the product’s preexisting warnings, the CPSC waged a full fledged crusade against Buckyballs that ultimately led to the demise of its corporate manufacturer. Although Buckyballs’ parent company (Maxfield & Oberton Holdings) has been driven out of business, the CPSC has also gone after its CEO, Craig Zucker.  The CPSC has sought to hold him personally responsible for a recall of the toy.  Zucker has been an outspoken critic of the CPSC and has contended that the law does not allow individual employees to be held liable for such things.  It would certainly seem that Zucker had a valid argument.  Nevertheless, the realities of litigating against a federal agency with unlimited resources seems to have finally forced Mr. Zucker to relent.

The settlement agreement provides that Zucker will place $375,000 into a trust that the CPSC will control.  The CPSC will recall Buckyballs (and its sibling, Buckycubes) and will grant a refund to customers to be paid from the trust.

The settlement is troubling in that it sets a precedent for the CPSC holding a corporate officer personally liable for a product recall.  A good analysis of this issue can be found here.

Buckyballs: Back And Bigger Than Ever

Last year, we here at Abnormal Use reported on the Consumer Product Safety Commission’s efforts to ban “Buckyballs” because the spherically-shaped magnets apparently posed a risk of ingestion despite the product’s warnings. As you might recall, the company’s response to the draconian measures was quite humorous, illustrating how any product can be dangerous based on the CPSC’s logic. Unfortunately, Buckyballs ultimately lost its fight and found itself forced out of business. Now, Buckyballs’ founders are back with a new company, and they haven’t forgotten the CPSC.

Seemingly defeated by the CPSC over the small-in-size, magnetic Buckyballs, the new company is now selling large, magnetic balls known as “Liberty Balls.” Take that, CPSC. Certainly, large balls can’t pose the same risk of ingestion. Aside from being a slap in the face to the CPSC, the new product serves an even greater purpose. Liberty Balls are the fundraising linchpin for the continued fight against the CPSC under a program entitled, “United We Ball.” According to the company’s website:

Liberty Balls and Ball of Rights are seriously BIG MAGNETS with a seriously BIG MISSION: to support the legal battle of one individual against government absurdity overreach retaliation regulators and stand up for the rights of all Americans (that’s you.)

Because the fight against the CPSC is so important, Liberty Balls have been called by some (the company) the “most important balls in American history.” And, who are we to argue? We must applaud a company for standing up to the CPSC’s over-reach. Some may say Buckyballs has taken this fight a bit far. We here at Abnormal Use say keep going farther. We are always looking for new material.

(Hat Tip: Overlawyered; Reason.com).

Buckyballs Fights Back, Mocks CPSC Logic

Recently, we here at Abnormal Use reported on the Consumer Product Safety Commission’s efforts to ban the spherically shaped magnets known as Buckyballs.  As you might recall, we were a little critical of the CPSC’s over-zealous tactics to protect the public from swallowing the magnets.  Call us reckless, if you will, but we just didn’t see the necessity of banning a product whose alleged “hazards” could be cured by a little self-policing by the consumer.  The product had warnings.  Common sense could keep any accidents from happening.  Sometimes, it appears that, according to the CPSC’s logic, any product could be unreasonably dangerous.

Apaprently, the Buckyballs company made the same observation.

Buckyballs has taken to Facebook launching its own campaign against the CPSC’s logic.  As pictured above, Buckyballs’ creativity did not cease with the invention of the magnetic sphere.  It’s true.  Any product, including a bed, can pose a hazard when not used properly.  As much as we love warning labels, even with them, accidents can sometimes occur.  Obviously, it would be ridiculous to require these types of warnings for a bed.

While we agree that the CPSC’s draconian efforts to ban Buckyballs are ridiculous, the company’s campaign is comparing apples to oranges.  In most instances, falling out of a bed is accidental and not the result of the sleeper’s own comparative fault.  The ingestion of magnetic spheres, on the other hand, typically takes some ridiculous affirmative act.  Even though a warning should not be necessary with either product, at least with Buckyballs, the label need only warn the user to exercise common sense.

In the case of Buckyballs’ coconut spoof, we must respectfully disagree.  Coconuts should be banned, but not due to the risk of injury from their falling.  Rather, coconuts should be banned – or at least heavily regulated by the FDA – as an unsafe food additive.  How many times have you been handed a delicious looking piece of cake only to discover after biting into it that it has been tainted by this horrible food?  A discovery that undoubtedly induces a negative reaction – one that can pose dangerous to those in the vicinity.  Therfore, coconuts should be banned.  Perfect CPSC logic.

(Hat tip: Walter Olson).

CPSC Aims To Eradicate Buckyballs, Outstretch Its Boundaries

The Consumer Product Safety Commission serves a necessary purpose.  According to its website, the CPSC is charged with the burdensome task of “protecting the public from unreasonable risks of injury or death from thousands of types of consumer products under the agency’s jurisdiction.” (emphasis added) An important job, sure.

In its recent suit against Buckyballs, however, it misses the mark and oversteps its boundaries.

Buckyballs, distributed by New York-based Maxfield & Oberton, are spherically shaped magnets which together can be manipulated to form an infinite number of objects.  Last week, the CPSC initiated an action against Maxfield & Oberton seeking a declaration that Buckyballs constitute a “substantial product hazard” and an injunction prohibiting their distribution.  According to the complaint, the product poses a risk of ingestion and, once swallowed, presents further complications due to its magnetic qualities.  Allegedly, numerous instances of ingestion by children under 14 have occurred.

The CPSC alleges that the Buckyballs’ warning labels are defective as they do not adequately communicate the hazards associated with the small, magnetic spheres.  From March 2009 through March 2010, the product contained a warning on its packaging which stated:

Warning: Not intended for children.  Swallowing of magnets may cause serious injury and require immediate medical care.  Ages 13+.

Well, the warning sure sounds appropriate.  The CPSC wasn’t satisfied, however, noting that such products should not be marketed to children under the age of 14.  In response , Maxfield & Oberton recalled Buckyballs in March 2010 and changed its warnings to reflect the same.

Nonetheless, the CPSC alleges that the warning is ineffective because parents do not appreciate the hazards associated with magnet ingestion and will continue to allow children to have access to the products, “mouth the items, swallow them, or, in the case of young adolescents and teens, mimic body piercings.”  Really?  Even if parents and children/young adolescents are ignorant to the dangers of magnet ingestion, do they really not appreciate the risks of swallowing small metallic objects?  If so, then conceivably any object capable of being swallowed is not suitable for commerce.

To make matters worse, the CPSC alleges that Buckyballs are defectively designed because they do not operate exclusively as intended.  Again, really?  Buckyballs are intended to be used by adults and “shaped, molded, and torn apart.”  Any unintended operations (i.e. swallowing) are not the result of a defective product, but, rather, poor parental supervision or bad choices.

The question is not whether the ingestion of a small, metallic ball creates a substantial risk of harm.  Of course it does.  Rather, the question is whether Maxfield & Oberton has placed an unreasonably dangerous product on the market.  If Buckyballs were prizes in Happy Meals, then this may be a case for CPSC intervention.  These products, however, have been featured in the likes of Maxim, Rolling Stone, and Esquire magazine – not exactly children’s material.

Even so, once purchased, consumers should bear some personal responsibility.  Product manufacturers are not the absolute insurers of public health.  According to a report by USA Today, a 12-year old girl was hospitalized for 6 days upon swallowing Buckyballs after placing them in her mouth to mimic a tongue piercing.  If you are old enough to appreciate the apparent attractiveness of a tongue piercing, so to should you be able to recognize the risk of swallowing metallic objects.

Buckyballs should be treated like any product capable of ingestion.  Parents can and should keep them out of the reach of young children, not use them as refrigerator magnets.  No warning from Maxfield & Oberton or the CPSC should be necessary.  And, certainly, there is no reason to pull them from the market and risk putting a company out of business (Buckyballs and its progeny are Maxfield & Oberton’s only product).

Through its distribution of Buckyballs, Maxfield & Oberton is not putting consumers in danger.  Consumers are putting themselves and their children in danger by poor supervision and a lack of common sense.  It is one thing for the CPSC to not want the product marketed to children.  It is another to call for its extinction.