[Federal Register Volume 77, Number 155 (Friday, August 10, 2012)]
[Notices]
[Pages 47823-47826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19693]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 12-2]
Zen Magnets, LLC; Complaint
AGENCY: Consumer Product Safety Commission.
ACTION: Publication of a Complaint under the Consumer Product Safety
Act.
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SUMMARY: Under provisions of its Rules of Practice for Adjudicative
Proceeding (16 CFR part 1025), the Consumer Product Safety Commission
must publish in the Federal Register Complaints which it issues.
Published below is a Complaint: In the Matter of Zen Magnets, LLC.\1\
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\1\ The Commission voted 3-1 to authorize issuance of this
Complaint. Chairman Inez M. Tenenbaum, Commissioner Anne M. Northup
and Commissioner Robert S. Adler voted to authorize issuance of the
Complaint. Commissioner Nancy A. Nord voted to not authorize
issuance of the Complaint.
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SUPPLEMENTARY INFORMATION: The text of the Complaint appears below.
Dated: August 7, 2012.
Todd A. Stevenson,
Secretary.
United States of America
Consumer Product Safety Commission
CPSC Docket No. 12-2.
In the Matter of Zen Magnets, LLC, Respondent.
Complaint
Nature of Proceedings
1. This is an administrative enforcement proceeding pursuant to
Section 15 of the Consumer Product Safety Act (``CPSA''), as amended,
15 U.S.C. 2064, for public notification and remedial action to protect
the public from the substantial risks of injury presented by aggregated
masses of high-powered, small rare earth magnets known as Zen
MagnetsTM Rare Earth Magnetic Balls, imported and
distributed by Zen Magnets, LLC (``Zen'' or ``Respondent'').
2. This proceeding is governed by the Rules of Practice for
Adjudicative Proceedings before the Consumer Product Safety Commission
(``Commission''), 16 CFR Part 1025.
Jurisdiction
3. This proceeding is instituted pursuant to the authority
contained in Sections 15(c), (d), and (f) of the CPSA, 15 U.S.C.
2064(c), (d), and (f).
Parties
4. Complaint Counsel is the staff of the Division of Compliance
within the Office of the General Counsel of the Commission (``Complaint
Counsel''). The Commission is an independent federal regulatory agency
established pursuant to Section 4 of the CPSA, 15 U.S.C. 2053.
5. Upon information and belief, Zen is a Colorado corporation with
its principal place of business located at 4155 E. Jewell Avenue, Suite
908, Denver, Colorado 80222.
6. Respondent is an importer and distributor of the Subject
Products known as Zen MagnetsTM.
7. As importer and distributor of the Subject Products, Respondent
is a ``manufacturer'' and ``distributor'' of a ``consumer product''
that is ``distributed in commerce,'' as those terms are defined in CPSA
sections 3(a)(5), (7), (8), and (11) of the CPSA, 15 U.S.C. 2052(a)(5),
(7), (8), and (11).
The Consumer Product
8. The Subject Products are imported and distributed in U.S.
commerce and offered for sale to consumers for their personal use in or
around a permanent
[[Page 47824]]
or temporary household or residence, a school, and in recreation or
otherwise. The Subject Products consist of small, individual magnets
that are packaged as aggregated masses in containers of varying size.
These containers hold anywhere from 72 to 1,728 small magnets. Each
magnet ranges in size from approximately 5.03 mm, with a chrome
coating, and a flux index of over 50.
9. Upon information and belief, the flux index of the Subject
Products ranges from 577.1 to 581.4 kg\2\mm.\2\
10. Upon information and belief, Respondent introduced the Subject
Products into U.S. commerce in July 2009.
11. Upon information and belief, the Subject Products are currently
manufactured by Bestway Magnet Corp. No. 225, Northern Section of
Huancheng Westroad, Ningbo, China.
12. Upon information and belief, Respondent advertised and marketed
the product in 2009 and 2010 as ``fun to play with'' strong rare-earth
magnets that ``look good on cute people'' and can act as stress relief
and a way to relieve boredom.
13. Upon information and belief, in 2011 Respondent began
advertising and marketing the product as a ``magnetic science kit'' in
addition to the uses listed above.
14. Upon information and belief, the Subject Products are sold in a
velvet sack, or an MDF hard case for the sets of 72 and 216 magnets.
The larger set of 1,728 magnets is packaged in a velvet-lined wooden
teak box. The sets range in retail price from approximately $12.65 to
over $250.00 for the largest set.
15. Upon information and belief, more than 57,000 of the Subject
Products have been sold to consumers in the United States.
The Subject Products Create a Substantial Risk of Injury to the Public
16. The Subject Products pose a risk of magnet ingestion by
children under the age of 14, who, consistent with developmentally
appropriate behavior, may place single or numerous magnet balls in
their mouths. The risk of ingestion also exists when adolescents use
the product to mimic piercings of the lip, tongue, and cheek and
accidentally swallow the balls.
17. If two or more of the magnets are ingested and their magnetic
forces pull them together, the magnets can pinch or trap the intestinal
walls or other digestive tissue between them resulting in acute and
long-term health consequences. Magnets that attract through the walls
of the intestines result in progressive tissue injury, beginning with
local inflammation and ulceration, progressing to tissue death, then
perforation or fistula formation. Such conditions can lead to
infection, sepsis, and death. Ingestion of more than one magnet often
requires medical intervention, including endoscopic or surgical
procedures. However, because the initial symptoms of injury from magnet
ingestion are nonspecific and may include nausea, vomiting, and
abdominal pain, caretakers, parents, and medical professionals may
easily mistake these nonspecific symptoms for other common
gastrointestinal upsets, and erroneously believe that medical treatment
is not immediately required.
18. Medical professionals may not be aware of the dangers posed by
ingestion of the Subject Products and the corresponding need for
immediate evaluation and monitoring. A delay of surgical intervention
due to the patient's presentation with nonspecific symptoms and/or a
lack of awareness by medical personnel of the dangers posed by multiple
magnet ingestion can exacerbate life-threatening internal injuries.
19. Magnets that become affixed through the gastrointestinal walls
and are not surgically removed may result in intestinal perforations
that can lead to necrosis, the formation of fistulas, or ultimately,
perforation of the bowel and leakage of toxic bowel contents into the
abdominal cavity. These conditions can lead to serious injury and
possibly even death.
20. Endoscopic and surgical procedures may also be complicated in
cases of multiple magnet ingestion due to the attraction of the magnet
balls to the metal equipment used to retrieve the magnets.
21. Children who undergo surgery to remove multiple magnets from
their gastrointestinal tract face long-term health consequences,
including intestinal scarring, nutritional deficiencies due to loss of
portions of the bowel, and possible fertility issues for women.
Count I
The Subject Products' Warnings and Labeling Are Defective as They Do
Not Effectively Communicate the Hazards Associated With the Ingestion
of the Subject Product
22. Paragraphs 1 through 21 are hereby realleged and incorporated
by reference as though fully set forth herein.
23. Upon information and belief, many children have ingested
products (the ``Ingested Products'') that are almost identical in form,
substance, and content to Zen MagnetTM products.
24. Upon information and belief, the Ingested Products are marketed
in substantially similar ways as Zen MagnetTM products.
25. Upon information and belief, the Ingested Products are used in
substantially similar ways to Zen MagnetTM products.
26. Upon information and belief, some models of the Subject
Products are sold in packaging that contain the following warning on a
small slip of paper:
Warning: DO NOT SWALLOW MAGNETS. How old do you have to be to
play with these? Dunno. 14 years old in the U.S. for a strong
magnetic toy, unless it's not a toy, then no age limit, but they're
fun magnets spheres, aren't they a toy? Unless it's a ``science
kit'' then the government age recommendation is 8+. But really, it's
whatever age at which a person stops swallowing non-foods.
27. The packaging also states:
Strong magnets can cause fatal intestinal pinching. Place
swallowing magnets on your don't do list along with breathing water,
drinking poison, and running into traffic. Call poison control if
more than one is swallowed. And keep these away from kids (and pets)
who don't understand these dangers. BTW, this is a ``science kit''
for sure.
28. On October 11, 2011, staff notified Respondent that Zen
MagnetsTM failed to comply with ASTM Standard F963-08, which
required that such products be marketed to children 14+.
29. On November 10, 2011, the Commission issued a public safety
alert warning the public of the dangers of the ingestion of rare earth
magnets.
30. Upon information and belief, Respondent only recently changed
its product's marketing to comply with ASTM Standard F963-08. Its Web
site now states that ``CPSC recommends minimum age of 14'' and ``U.S.
Government age recommendation is 14 years.''
31. Despite the Commission safety alert and enhanced warnings on
the Subject Products and the Ingested Products, ingestions of Ingested
Products continue to occur.
32. Warnings are ineffective for the Subject Products because
parents and caregivers do not realize the hazards associated with the
Subject Products of magnet ingestion, and as a result, they will
continue to allow children to have access to the Subject Products.
Children cannot, and do not, recognize the hazard either, and as a
result, they will continue to mouth the items, swallow them, or in the
case of young adolescents and teens, mimic body piercings.
[[Page 47825]]
33. Warnings are ineffective for the Subject Products because once
the Subject Product is removed from its packaging, the individual
magnets display no warning against ingestion or aspiration, and the
small size of the individual magnets precludes the addition of such a
warning.
34. Warnings are ineffective because individual magnets are easily
shared among children so that many end users of the product are likely
to have had no exposure to any warning.
35. The Subject Products are defective because their packaging and
warning labels cannot guard against the foreseeable misuse of the
product and prevent the substantial risk of injury to children.
36. Therefore, the Subject Products are defective pursuant to
sections 15(a)(2) of the CPSC, 15 U.S.C. 2064(a)(2).
Count II
The Subject Products, as Designed, Are Defective and Pose a Substantial
Risk of Injury
37. Paragraphs 1 through 36 are hereby realleged and incorporated
by reference as though fully set forth herein.
38. The Subject Products are defective because they do not operate
exclusively as intended, and thus, they present a substantial risk of
injury to the public. Although the Subject Products warn against
placing the magnets in the mouth, misuse is foreseeable nonetheless.
39. The Subject Products present a substantial risk of injury to
children because the individual magnets are intensely appealing to
children due to the tactile features, small size, and highly
reflective, shiny metallic coatings of the magnets.
40. The Subject Products are also appealing to children because the
individual magnets are smooth, unique, and make a soft snapping sound
as they are manipulated.
41. The Subject Products also move in unexpected, incongruous ways
as the poles on the magnets move to align properly, which may evoke a
degree of awe and amusement among children.
42. The Subject Products also have the unique capability of
adhering to one another through body tissue, enabling adolescents to
use the magnets to mimic body piercings. This can be appealing to
adolescents who are experimenting with what they, and their caregivers,
might erroneously believe to be safer risk-taking than getting an
actual body piercing.
43. The Subject Products present a substantial risk of injury to
children because they do not act solely as adult products or
manipulatives.
44. The Subject Products present a substantial risk of injury to
children because they are marketed to appeal to both children and
adults.
45. The Subject Products are marketed as ``fun to play with''
products that ``look good on cute people.''
46. The Subject Products are marketed and intended to be used as a
``science kit'' that ``commemorate the natural rhythm of geometric
shapes, and rouse the dreams of inspired imaginations.''
47. The packaging of the Subject Products also constitutes a design
defect. The velvet bags and assorted boxes that are designed to hold
the Subject Products do not prevent children from accessing the
magnets; nor do they prevent individual magnets from detaching from the
product and getting lost. In addition, the packaging of the Subject
Product does not allow parents and caregivers to know readily whether a
magnet is missing, and is potentially within the reach of a young
child, who could get a hold of it and may mouth or ingest the product.
48. The hazard posed by the Subject Products cannot be remedied by
different packaging because users are unlikely to return the magnets to
any container or case to store them, regardless of the packaging
design. Users of the Subject Products are unlikely to disassemble
magnet configurations, many of which are elaborate and time-consuming
to create, and replace them in a case or container after each use. This
is more likely with the subject product which comes with a steel plate
upon which designs can be affixed and will likely be displayed.
Count III
The Subject Products Are a Substantial Product Hazard
49. Paragraphs 1 through 48 are hereby realleged and incorporated
by reference as though fully set forth herein.
50. The Subject Products present a substantial risk of injury
because the pattern of defect--failure to operate exclusively as an
adult toy, failure to communicate warnings effectively, and marketing
the product for uses applicable to children under the age of 14--is
present in all of the Subject Products.
51. Therefore, the Subject Products present a substantial product
hazard within the meaning of Section 15(a)(2) of the CPSA, 15 U.S.C.
Sec. 2064(a)(2), by reasons of the substantial risk of injury or death
alleged in paragraphs 1 through 48 above.
52. The Respondent has refused to stop sale and conduct a recall of
the Subject Products voluntarily.
Relief Sought
Wherefore, in the public interest, Complaint Counsel requests that
the Commission:
A. Determine that Respondents' Subject Products, known as Zen
MagnetsTM, present a ``substantial product hazard'' within
the meaning of Section 15 U.S.C. Sec. 2064(a)(2).
B. Determine that extensive and effective public notification under
Section 15(c) of the CPSA, 15 U.S.C. 2064(c), is required to protect
children adequately from the risks of injury presented by rare earth
magnet products, and order Respondent under Section 15(c) of the CPSA,
15 U.S.C. 2064(c) to:
(1) Cease importation and distribution of the Subject Products;
(2) Notify all persons and entities that transport, store,
distribute, or otherwise handle the Subject Products, or to whom such
product has been transported, sold, distributed, or otherwise handled,
to cease distribution of the product immediately;
(3) Notify appropriate state and local public health officials;
(4) Give prompt public notice of the defect in the Subject
Products, including the incidents and injuries associated with
ingestion or aspiration, including posting clear and conspicuous notice
on its Internet Web site, providing notice to any third party Internet
Web site on which Respondent has placed the product for sale, and
announcements in languages other than English and on radio and
television where the Commission determines that a substantial number of
consumers to whom the recall is directed may not be reached by other
notice;
(5) Mail notice to each distributor or retailer of the Subject
Products; and
(6) Mail notice to every individual to whom the person required to
give notice knows such product was delivered or sold.
C. Determine that action under Section 15(d) of the CPSA, 15 U.S.C.
2064(d), is in the public interest, and additionally, order Respondent
to:
(1) Refund consumers the purchase price of the Subject Products;
(2) Make no charge to consumers and to reimburse consumers for any
reasonable and foreseeable expenses incurred in availing themselves of
any remedy provided under any Commission Order issued in this matter,
as provided by Section 15 U.S.C. 2064(e)(1);
[[Page 47826]]
(3) Reimburse retailers for expenses in connection with carrying
out any Commission Order issued in this matter, including the costs of
returns, refunds, and/or replacements, as provided by Section 15 U.S.C.
2064(e)(2);
(4) Submit a plan satisfactory to the Commission, within ten (10)
days of service of the Final Order, directing that actions specified in
Paragraphs B(1) through (5) and C(1) through (3) above be taken in a
timely manner;
(5) To submit monthly reports, in a format satisfactory to the
Commission, documenting the progress of the corrective action program;
(6) For a period of five (5) years after issuance of the Final
Order in this matter, to keep records of its actions taken to comply
with Paragraphs B(1) through (5) and C(1) through (4) above, and supply
these records to the Commission for the purpose of monitoring
compliance with the Final Order;
(7) For a period of five (5) years after issuance of the Final
Order in this matter, to notify the Commission at least sixty (60) days
prior to any change in its business (such as incorporation,
dissolution, assignment, sale, or petition for bankruptcy) that results
in, or is intended to result in, the emergence of a successor
corporation, going out of business, or any other change that might
affect compliance obligations under a Final Order issued by the
Commission in this matter; and
D. Order that Respondent shall take other and further actions as
the Commission deems necessary to protect the public health and safety
and to comply with the CPSA.
ISSUED BY ORDER OF THE COMMISSION:
Dated this 6th day of August 2012.
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By: Kenneth Hinson,
Executive Director, U.S. Consumer Product Safety Commission,
Bethesda, MD 20814, Tel: (301) 504-7854.
Mary Murphy,
Assistant General Counsel, Division of Compliance, Office of General
Counsel, U.S. Consumer Product Safety Commission, Bethesda, MD
20814, Tel: (301) 504-7809.
Jennifer Argabright,
Trial Attorney.
Sarah Wang,
Trial Attorney, Complaint Counsel, Division of Compliance, Office of
the General Counsel, U.S. Consumer Product Safety Commission,
Bethesda, MD 20814, Tel: (301) 504-7808.
Certificate of Service
I hereby certify that on August 6th, 2012, I served the foregoing
Complaint upon all parties of record in these proceedings by mailing,
certified mail, postage prepaid, a copy to each at their principal
place of business, and emailing a courtesy copy, as follows:
Shihan Qu, Founder, Zen Magnets, LLC, 4155 E. Jewell Avenue, Suite 908,
Denver, CO 80222, [email protected].
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Complaint Counsel for U.S. Consumer Product Safety Commission.
[FR Doc. 2012-19693 Filed 8-9-12; 8:45 am]
BILLING CODE 6355-01-P