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CPSIA – Making It Up as We Go Along

743 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are 68 days left until Election Day.

The CPSC today whacked education company Lakeshore Learning Materials with a recall of Magnetic Maze products. This recall involved 18,500 units of a total of five products sold over a 18-month period. Was this recall justified? Well, anything goes these days but consider the facts:

There have been no reported injuries from this “hazard” – namely loose magnets. The company has received ten reports of loose magnets. The CPSC sums up the “hazard” this way:

“The magnetic maze board’s plastic wand can separate and expose a magnet that can be a choking hazard to children. Also, if a child has more than one of these toys and the magnets detach and are swallowed, the magnets can attract each other and cause intestinal perforations or blockages, which can be fatal.” [Emphasis added]

Before we unpack this baloney, please consider for the umpteenth time where the CPSC’s LEGAL BASIS for issuing a recall comes from. The authority to recall consumer products derives from the FHSA which restricts the agency’s authority to “imminent hazards”. Section 12(a) of the FHSA provides this definition: “As used in this section, and hereinafter in this Act, the term ‘imminently hazardous consumer product’ means a consumer product which presents imminent and unreasonable risk of death, serious illness, or severe personal injury.” [Emphasis added]

So the CPSC must reach the legal conclusion that this product creates an IMMINENT AND UNREASONABLE RISK of death, serious injury or severe personal injury to order a recall. Did they meet that standard here?

The CPSC provides two explanations for this recall, namely small parts/choking hazards and intestinal perforations from ingestion of magnets. Of course, the latter hazard is derived from a fear of Magnetix, a notorious recall in the bad zone of 2007/8. There is no indication that these magnets were strong magnets as found in the Magnetix product.

A quick glance at this product confirms that the product is DESIGNED with small parts. These products were certainly tested for compliance with law (we know these folks well, and they are exemplary corporate citizens who are exceptionally careful about legal compliance and safety). Therefore, the assertion that the presence of small parts in this product somehow constitutes a violation of law or good practice just doesn’t hold water. I could use stronger language, but I think this is a nonsense excuse.

And what about intestinal perforations? That’s pretty icky, shouldn’t we be intolerant of loose magnets? Well, the CPSC states the conditions under which these magnets could be a problem:

Step 1: The child must have more than one recalled product. [You need two products to have two magnets! There are 18,500 defective units in the world, let's not forget - a total universe of 18,500 magnets.]

Step 2: TWO magnets must fall out, one from each unit. [Ten loose magnets in the world are known. As noted above, there is no indication that these magnets are dangerously strong enough to perforate anything. A niggling detail?]

Step 3: An idiot child must choose to EAT these two yummy loose magnets in one sitting.

This has never happened, apparently. Could it happen?

This is well-beyond farfetched, but there you go. At today’s CPSC, the agency is apparently no longer permitted by the politicians who run the place to reason or to assess any form of risk. If the risk can be put into words, that seems to make it real enough to punish any company severely. No doubt this recall exposes Lakeshore to grievous penalties, too. And for what? Can anyone make the case that this makes anyone ACTUALLY safer? And, call me picky, but is this a case of “imminent and unreasonable risk of death, serious illness, or severe personal injury”? I believe this speaks for itself – the answer is no.

Remember, these regulators work for us, the citizens of this country. As the regulators confuse and scramble the expectations of industry and consumers, as they disregard their enabling legislation to chart a path that makes sense only to them – something important is lost. Is that acceptable? Not to me. Remember this on November 2nd. Let’s hope it’s not too late by then.

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CPSIA – Making It Up as We Go Along