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:

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or

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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.

Jury Awards $20 Million, CPSC Decides to Respond

Back in 2011, Toys ‘R’ Us was hit with a $20.6 million verdict by a Massachusetts jury in a products liability case arising out of the death of 29-year old Robin Aleo.  The woman was killed while sliding down a 6-foot inflatable pool slide manufactured in China by Manly Toys and sold in the U.S. by Toys ‘R’ Us.  As the woman neared the bottom of the slide, it partially collapsed, causing her to strike her head on a concrete pool deck.  After a nearly two week trial, the jury awarded Aleo’s estate $2.6 million in compensatory damages and $18 million in punitive damages.  Toys ‘R’ Us appealed the jury award, and the Massachusetts Appeals Court heard oral arguments in the case last week.

Aside from the amount of the jury’s award, the more intriguing issue in this case is the role of the Consumer Product Safety Commission.  At trial, the estate argued that the slide did not comply with federal safety standards for swimming pool slides, citing to standards set forth by the CPSC in 1976.  Toys ‘R’ Us contends that the 1976 regulations do not apply to inflatable slides, but only to rigid pool slides.  According to the toy retail chain, inflatable slides were not around in 1976 and, thus, were not contemplated by the standards.

Nonetheless, the slides apparently were imported and never certified that they met any standards.  Regardless of whether Toys ‘R’ Us should be held responsible for this regulation snafu, it’s the CPSC’s response that draws our ire.  The CPSC did not recall the slide until May 2012 – months after the verdict and years after the 2006 incident.  The CPSC was also aware of at least two other cases of serious injury arising out of use of the slide.  If the slide really is afoul of CPSC regulations and has allegedly caused several cases of serious injury and/or death, then why wait until a jury verdict to issue a recall?  It is not like the CPSC has a firm rule to exercise due diligence in these things.  Remember Bucky Balls?

We have been critical of the CPSC in the past over its draconian measures.  Regardless, if the CPSC knows it is going to issue a recall, it might as well go ahead and do it – especially if the only fact that changed between the 2006 accident and the 2012 recall is a Massachusetts jury deciding the issue is worth $20 million.

Nap Nanny Manufacturer Fights CPSC Action

Ever wonder what happens to the companies involved in all of those recalls ordered by the Consumer Product Safety Commission (CPSC)? Many manufacturers sit back and conform to the CPSC’s demands to correct any perceived safety issues. Others publicly voice their displeasure. (We previously reported on the Buckyballs recall and the humorous company retort).

Count Nap Nanny infant recliner manufacturer, Baby Matters, LLC, as a member of the latter.

Back in 2010, the CPSC and Baby Matters issued a joint recall of the Nap Nanny following the death of an infant who had fallen from the product. Apparently, the baby harness on the first generation model attached only to the product’s fabric cover and did not adequately secure the children.  Infants using an improved second generation harness (pictured above) allegedly still ran the risk of partially falling and hanging over the side of the Nap Nanny. Following the voluntary recall, at least five additional deaths and 70 injuries were reported to the CPSC. According to reports, the CPSC then attempted to work with Baby Matters to correct the safety issues. When those discussions failed, in December, the CPSC filed an administrative complaint seeking to require Baby Matters to notify the public of the issues and offer refunds to consumers. Thereafter, the CPSC announced that major retailers (Amazon, Buy Buy Baby, Toys R Us, and Diapers.com) had agreed to voluntarily recall the Nap Nanny because Baby Matters had refused to do so. Here’s where this tale becomes even more interesting.

According to a report from The Consumerist, Baby Matters is now seeking a dismissal of the CPSC’s complaint. Interestingly, the company takes issue with language in the CPSC’s press release announcing the participation of the retailers. Apparently, an original version of the release stated that “it is illegal to attempt to sell or resell this or any other recalled product.” The Consumer Product Safety Act only makes it illegal to sell products following a voluntary recall by the manufacturer. Baby Matters claims the CPSC waited until 6:30 p.m. to correct the statement. By this time, the release “had achieved maximum impact.” The company now seeks a retraction and clarification that retailers are allowed to continue selling the Nap Nanny during the pending CPSC suit.

We here at Abnormal Use know little about the validity of the CPSC’s safety concerns in this case. In fact, even though we are parents of infant children, we were not even aware such a product existed (although we admit it looks comfortable). We do, however, understand the CPSC’s desire for action after continued reports of deaths and injuries, but obviously, the government, when pursuing any sort of action, should ensure that its literature is, at the very least, accurate.  We’ll be keeping our eyes on this one.

CPSC Recalls Blinds with Strangle Hazards (With Illustrations)

Recently, the Consumer Product Safety Commission recalled custom-made horizontal and vertical blinds manufactured by Michigan-based Blind Express.  According to the CPSC report, the vertical blinds contain adjustment cords that do not attach to the wall or floor.  Likewise, the horizontal counterparts do not possess inner cord stops to prevent the cords from being pulled from the blinds.  As a result, children can become entangled in the cord loops.

The recall was prompted by a report of a 2-year-old girl strangled in the cord of some vertical blinds.

We here at Abnormal Use have not always seen eye-to-eye with the CPSC.  The CPSC, for all the good it does, is sometimes overzealous with its recalls.  In this instance, however, we can agree that loose blind cords present good grounds for a recall – especially when young children are placed in harm’s way.

Nevertheless, while we may support the end result, let us be a little a critical of the CPSC’s methods.  Just check out these photos from the CPSC recall notice:

Wow. We can understand using “fire and brimstone” tactics to make a point, but hanging baby dolls may be a bit excessive.  The blinds pose a strangulation hazard.  We get that.  But please explain how babies get trapped in the cords and then somehow suspended in mid-air?  We are guessing these are not accurate depictions of the hazards.  Something about these photos screams more psychopath journal than instructional warning label.

Illustrative warnings can be helpful – and sometimes even necessary – to get the point across.  Sometimes, however, a simple diagram will suffice.

CPSC Cuts Machetes Over Laceration Hazard

The Consumer Product Safety Commission is at it again.  Now, the CPSC has recalled the Bear Grylls Parang Machetes manufactured by Gerber because, get this, the product allegedly is a laceration hazard.  Yes, you read that correctly.  A machete has been recalled for being a laceration hazard.  Sounds ridiculous, sure.  But before we criticize the agency for its over-zealousness, we must admit that the CPSC may – at least this time – have some ground for its decision.

According to the CPSC, the machete has a weakness near the point where the handle meets the blade.  When in use, the machete’s handle or blade can break, posing a laceration hazard.  There have been 24 reports (out of 119,000 units sold) of breakages and one report of a laceration injury.  There have been no reports of injuries necessitating stitches.

Even we here at Abnormal Use can appreciate the risk of a runaway machete blade.  But is there really enough evidence to issue a recall?  With only 24 reports of breakage out of thousands sold, it is difficult to determine whether the product truly is defective. There is no evidence as to how the machetes were being used when they broke, so it is premature to comment on the product’s defectiveness in either design or manufacture.  Nevertheless, we suppose when it comes to sharp objects, an abundance of caution is necessary.  After all, we would hate to see an episode of Man vs. Wild interrupted because Grylls was injured while using the machete to make a lean-to out of an alligator carcass.

On a positive note for Gerber, with only one minor reported injury, this recall may have come early enough to avoid any potential litigation.  In the event litigation comes to fruition, however, we imagine the defense will have no problem coming up with a theme.  And, of course, the puns will run rampant.

[Hat Tip:  Boston Personal Injury News]

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.

CPSC: Exploding Toilets Not Just an Urban Legend

Independence Day may have passed, but for millions, the fireworks are still ongoing – in their bathrooms.  And, no, this is not a cheap excuse for potty humor.  The Consumer Product Safety Commission has issued a recall of the Sloan Flushmate III Pressure-Assist Flushing System after receiving over 300 reports of exploding toilets.  According to the CPSC, the flushing system installed in approximately 2.3 million toilets nationwide can burst under increased pressure, shattering the tank.  At least 14 people have reported impact and laceration injuries from pieces of exploding porcelain. Ouch.

The recall comes in light of several news reports over the past year of unexplained toilet explosions.  Last September, two federal employees were injured by shards of porcelain when two toilets exploded in the General Services Administration building in Washington D.C.  In March, students from the University of Chicago reported that toilets were exploding in their dormitory.  It is unknown whether these incidents are related to the Flushmate, but we imagine it may become the scapegoat for government bureaucracy and inhumane freshman living conditions.

While the CPSC did not comment on the relative severity of any such incidents, explosions are not something one typically expects from the inner sanctum of the bathroom abode.  Exploding toilets are supposed to be the product of urban legend and children of the ’90s toting M-80s (See, e.g. Problem Child).  At this time, no details are available as to the cause of the pressure build-up in the Flushmate, but we can not refrain from utilizing a few jokes to help tell the story.

If the reports of injuries are accurate, we here at Abnormal Use expect the Flushmate may be the future target of some product liability litigation.  While not enough facts are known to accurately comment of the validity of any manufacturing defect claims, it is difficult to foresee many inherent defects in the product’s design given the relatively few complaints compared to the millions of products sold over a decade.   And, as for failure to warn? We can only imagine the allegations of the well-drafted complaint:

Manufacturer failed to adequately warn that toilet may become explosive with use.

Obviously, if there are true injuries involved, this should be no laughing matter.  However, there is something about the combination of toilets and explosions that brings out the child in us all.  Now, with news of the recall and the likelihood of potential litigation, the exploding toilet is no longer the stuff of urban legends.

The Abnormal Use Guide to Pool Safety

With summer on the horizon, the Consumer Product Safety Commission has issued a warning to users of portable pools.  According to the report, an average of 35 children under the age of 5 die annually in portable pools, accounting for 11 percent of all pool drownings.  Considering these statistics, the CPSC obviously has valid reasons for concern.  However, in our usual irreverent way, we here at Abnormal Use must question the sufficiency of the CPSC’s tips for the prevention of such accidents.

There’s nothing necessarily wrong with the CPSC’s tips.  Rather, the advice is more akin to a helpful reminder that breathing is essential to sustain life.  Take this tip for example:

Teach children to swim, float and other-life saving basics.  But do NOT consider young children “drown-proof” because they have had swimming lessons.

No doubt, the ability to swim is a great way to lessen one’s chances of drowning.  We understand that not all parents are ideal, but do people really consider children taking swim lessons as “drown-proof”?  After all, they are called swimming lessons – not Olympic training.  Maybe the better tip would be:

Even children capable of swimming are susceptible to drowning.  When children are playing in pools, always assume that accidents are possible.

Our personal favorite tip is one with a great deal of merit.  It is perfectly logical.  Yet, something about it seems a bit misplaced.

If you can’t fence the pool, use smaller, easier to store portable pools.  Then, empty the water ANY time you are not supervising the pool and turn it upside down or store it away.

Again, it’s good advice.  If a small pool is capable of being drained after each use, it makes sense to do so and take away the hazard.  But is this really the solution?  Reading between the lines, we know what the CPSC really meant to say:

If you choose to purchase an unsightly above-ground pool, fence it in.  If fencing is not an option, save yourself the embarrassment of having others know you purchased an above-ground pool by seeking other options.  Small plastic pools are socially acceptable for young children.  There is no shame in having your children observed temporarily playing in such pools.  But please, empty the water and remove the pools from your yard when not in use.  Teach children to clean up their toys.

Even if fencing is an option, understanding why anyone elects to purchase a large, above-ground pool is beyond our pay-grade.  If the CPSC was forthright, they would have taken inspiration from the late Mitch Hedberg:

Do not be persuaded through television advertising to purchase an above-ground pool.  Those commercials are only 30-seconds long because that is the maximum amount of time you can depict yourself having fun in an above-ground pool.  To prevent accidents and overall boredom, please seek out safer, more entertaining alternatives.

With that said, we do applaud the CPSC’s efforts.  Pools do present a risk of drowning.  With an appropriate level of care, many of these accidents can be prevented.  If you do have a pool in your yard – of any type – we refer you to the most important rule formulated by the Commission:

NEVER leave a child unsupervised near any pool or spa.