Must Every Product in the World Be Safe Enough for Children?

The New York Times reported Friday on the David-and-Goliath battle of businessman Shihan Qu, the last of the rare earth magnet renegades. Mr. Qu’s company, Zen Magnets, is the last U.S. company selling the popular sets of unusually strong magnets that first became popular when marketed under the name Buckyballs® (named after inventor and designer R. Buckminster Fuller). These sets allow scientifically-curious customers to creatively experiment with different geometric forms. When Craig Zucker and Jake Bronstein started selling Buckyballs® through their company Maxfield & Oberton in 2009, they were immediately successful.

Magnets this strong do have safety concerns, however, and some children have swallowed them and been injured as a result. This is why the companies selling them covered them in warning labels and didn’t supply the product to stores whose inventory is primarily targeted to children, like Toys R Us. Since the magnets require a fair amount of manual strength and dexterity to use, they were never marketed to children, gaining their following largely from popular science and geek-themed outlets.

The precautions of the magnet sellers, however, were not enough for the Consumer Product Safety Commission, which began investigating the companies selling them and eventually insisting on a recall. Some companies like Maxfield & Oberton fought the effort to make their product illegal, creating the online campaign United We Ball and attempting to finance their legal fight by selling sets of “Liberty Balls” that were large enough to satisfy even the CSPC’s worries about them being swallowed by children.

Eventually the feds decided to go after company co-founder Craig Zucker personally, attempting to hold him individually liable for $57 million. Zucker has described this as “a vindictive astounding departure from the cherished American principle of ‘limited liability,’ which protects responsible, law-abiding company officers from being unjustly sued.” While he didn’t end up having the pay the threatened multi-million dollar fine, his company did succumb to the financial pressure of mounting legal costs and has since closed down.

Which brings us back to Mr. Qu. He is scheduled to appear before an administrative law judge in December to plead his case that his product – when used, as directed, by adults – is safe and should be legal to sell. It will be interesting to see what the court makes of the CSPC’s claim that the multiple warning labels on magnet sets are insufficient because (to paraphrase the agency) warning labels simply don’t work. If left unchallenged, this represents a troubling precedent for any product made for adults rather than children. Moreover, if warning labels on consumer products are so ineffective and frequently disregarded, why are they such a large part of the government’s federal safety regulations? The ruling that comes out of December’s hearing could have a big impact on U.S. manufacturers far beyond a simple magnet set.