This week, the Consumer Product Safety Commission (“CPSC”) will decide whether to hold a full Commission hearing to receive oral comments on a notice of proposed rulemaking on magnet set safety.  If the meeting notice is approved as drafted, the hearing will take place at 10 AM EST on October 22, 2013 and will provide stakeholders the opportunity to present additional comments to the CPSC on the proposed magnet set standard prior to agency staff finalizing the rule.  In August 2012, the CPSC voted to begin a rulemaking process to address safety risks posed by certain high powered magnet sets.  The CPSC published a notice of proposed rulemaking on September 4, 2012.

Many agency stakeholders were expecting this rule to be finalized prior to the end of this fiscal year (September 30, 2013) based on the dates listed in the agency’s recent Spring Regulatory Agendaand projections listed in its 2013 Operating Plan.  However, this meeting notice indicates that likely will not be the case.  Interestingly, the week of October 22 will be Commissioner Nord’s last week at the Commission before the expiration of her holdover year and the last week before Chairman Tenenbaum’s natural term expires and holdover year begins—meaning that Commissioner Adler may be the only Commissioner remaining that voted on the proposed rule when the final rule is eventually presented to the Commission.

The safety of magnet sets, defined as “any aggregation of separable, permanent, magnetic objects that is a consumer product intended or marketed by the manufacturer primarily as a manipulative or construction desk toy for general entertainment,” has become a focal point and hot topic over the past year for the CPSC, product safety advocates, and interested industry stakeholders.  Under the proposed rule, if a magnet that is part of a magnet set fits within the CPSC’s small parts cylinder, the magnet would be required to have a flux index of 50 or less, or the magnet would violate the standard.  The flux index is a standard measure of magnetic strength. The CPSC has determined that there may be an unreasonable risk of injury associated with children ingesting magnets that do not meet the standard.  When two or more of these types of magnets are swallowed, they can attract to each other and potentially result in damage to children’s digestive and intestinal systems.

The potential safety risks associated with magnet sets have been well publicized in the wake of six retailers agreeing to a recall of some of the products and the CPSC filing administrative complaints seeking mandatory recalls from Maxfield & Oberton, Zen Magnets, and Star Networks.  The rulemaking, recall, and administrative complaints reflect the CPSC’s strategy of removing high-powered magnets sets already on the market through its recall authority and banning their sale moving forward through its rulemaking authority.  The administrative lawsuit against Maxfield & Oberton recently raised a novel legal question when CPSC individually named the company’s CEO as a defendant in the lawsuit to recall Buckyballs and Buckycubes, the most prominent brands of high-powered magnet sets.  The CEO of the Company objected to being named to the lawsuit but the administrative law judge ruled that he could properly be named as a defendant and denied his motion to appeal the issue to the full Commission.