(CN) – An administrative law judge ruled that tiny magnetic balls sold by a Denver-based company are not inherently unsafe because they only pose a hazard when individuals do inadvisable things with them.
The ruling by Administrative Law Judge Dean Metry came just days after a federal judge said Zen Magnets LLC must recall small but powerful magnets sold under the brand names Neoballs and Newbcubes because they can pose fatal injuries when swallowed.
But Metry, who conducted an independent inquiry into whether the Consumer Product Safety Commission appropriately sought to ban the sale of the magnets, came to an entirely different conclusion.
“After considering the entire record, consisting of both documentary and testimonial evident,” Metry said on March 25. “The ALJ fines the agency did not prove all SREMs [spherical rare earth magnets], as sold by the respondent, are substantial product hazards.”
According to the Consumer Product Safety Commission, when a person ingests more than one of the magnets, the magnets are attracted to each other in the digestive system, creating the potential for serious damages to intestinal tissue trapped between them or even death.
U.S. District Judge Christine Arguello acted on that assertion and ordered Zen Magnets and its owner, Shihan Qu, to stop selling the magnets which are commonly marketed as “sculptural” desk toys.
Metry doesn’t reject the commission’s finding out of hand, but rather concluded the magnets pose a hazard only when they are misused by consumers, and that’s not the fault of Zen Magnets or its owner.
“The agency did prove ingesting SREMs creates a real risk of injury and can result in severe injury or death,” he wrote.
However, “the agency did not prove SREMS, when sold with appropriate warnings, including proper age recommendations, are substantial hazards.”
Metry also concluded that Zen Magnets’ products were not defective and that warnings printed on packages of Neoballs and Newbcubes“do not contain a fault, flaw, or irregularity which causes a weakness, failure or inadequacy.”
As recounted in documents filed in the federal court, Shihan Qu bought 917,000 of the magnets at a substantial discount from another company that itself was about to enter into a recall agreement with federal regulators.
Judge Arguello noted that Qu knew when his company purchased the magnets in July 2014 that the seller was about to enter into an agreement with commission to recall the magnets, and that as a result of the recall, it would be illegal to sell them. The company argued that by placing the magnets in different packaging and selling them under different names, the magnets were no longer covered by the recall.
Arguello rejected that argument. Metry was more accommodating, ordering Zen Magnets to notify retailers and consumers who bought Neoballs and Newbcubes about ingestion hazards, and to offer then an opportunity to return the product if they desire for a full refund.
In a lengthy statement published on his company’s website, Shihan Qu hailed the administrative law judge’s decision as a “90 percent” victory.
Despite the fact the decision “landed strongly in our favor,” Zen Magnets is still prohibited from selling Newbcubes and certain Neoballs, and is still subject to two court-mandated recalls.
The recall ordered by the administrative law judge applies all Zen Magnets sold without explicit warnings prior to May 2010, and all Zen Magnet sold subsequently that labeled the product safe for ages 12 and up.
The recall ordered by Judge Arguello applies to Neoball magnets purchased between Aug. 4 2014 and May 14, 2015.
Under the terms of the court order, Zen Magnets must contact all known purchasers of the magnets, inform them of the ingestion hazard and provide them with a full refund on receipt of the magnets.
The company is also offering a consumers a recall of its own:
“If you own Zen Magnets and Neoballs, and you: don’t feel safe with them, don’t think you can keep them from being swallowed, don’t understand why they are dangerous, or magnets look tasty to you, or you don’t like the word Zen next to the word Magnets, or your best friend threw pasta at your face and you’re angry, or any other reason you can possibly imagine, you can go ahead and mail them back to us,” the company says on its website.
“We will refund your full purchase price. … We’ll gladly re-sell your Zen Magnets to people who are waiting for them. (At a discount for being used, of course.)”
Despite the mirth, the company goes on to say that it still cannot sell any of the magnets.
“The CPSC’s war on magnets was the first time they took a two-pronged approach of conducting rulemaking simultaneously with administrative action,” the company said. “Even though Zen Magnets and the included warnings have been found to be without flaw, there is still a nationwide import ban.”
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