DENVER (CN) - Federal regulators urged the 10th Circuit to uphold a ban Wednesday on Buckyballs and other strong magnets that pose a deadly swallow hazard for children.
Buckyballs, Neoballs and Zen Magnets are 5 mm and highly magnetized - making them a toy that is not only easy for children to swallow, but can create a dangerous need for surgery when the magnets clamp together and pinch internal tissue.
The Consumer Product Safety Commission reported that similar high-powered magnet sets were responsible for the death of a 19-month-old infant, and were the cause of approximately 2,900 emergency-room visits between 2009 and 2013.
Right before Star Networks issued a public recall of Magnicube magnets because of these hazards in 2014, Colorado-based Zen Magnets bought a large shipment of magnets from the manufacturer.
The U.S. government sued Zen and its owner, Shihan Qu, for civil penalties this past May, claiming that they continued selling the recalled magnets in violation of the Consumer Product Safety Act.
Qu, who has been updating his customer base on his ongoing legal battle through the Zen Magnets website, described the suit as his company "vindictive," saying "we only used the same [magnets] that would have been ok to purchase directly from China."
"They pulled the neat trick of labeling magnet spheres dangerous based on the bullied settlement of a fallen competitor," the website states.
With a federal judge having ordered Zen Magnets to stop selling its magnets, attorneys for the retailer pushed the 10th Circuit for a reversal Wednesday.
David Japha told the court that Zen Magnet's "hands are tied" because of a ban that stems from "disproportionately irrational legislation."
Judge Neil Gorsuch countered that "one man's standard is another man's ban."
"How am I supposed to declare that this is a ban of a product and not a standard of a product?" the judge asked.
Japha replied that "the procedure under the ban is different than the procedure of rule making."
Gorsuch said the back-and-forth discourse felt like "dancing on the head of a pin - it doesn't matter."
Moving on to an easier legal recourse for Japha's client, Gorsuch asked why Qu does not just change his product to comply with the government's new magnet standards.
According to Consumer Product Safety Commission's website, a magnet from a set must "be large enough that the magnet does not fit into a CPSC small parts cylinder, or the power of the magnetic force must be lower than a specified measure."
Before the new regulations, magnets available for sale could have a magnetic force 37 times greater than what is now permitted.
Gorsuch noted that Zen has been selling new "Compliance Magnets" for the upcoming holiday season.
"Your client appears to be able to produce a compliant magnet," the judge said.
While Zen's website is already taking orders, Qu released a statement that says the magnets "will obey, conform, and abide by all CPSC regulations ... but to be clear, these new tiny magnets are not designed for ease of use. They are not a substitute for Zen Magnets, for which our fight continues."
"It's a different product," Japha told the court. "The reason it's a ban is, the whole character of the product changes."
Representing the Consumer Product Safety Commission, attorney Darrell Tenney said the product's character is not at issue, and that the commission properly took action against this class of magnets.
"It depends on how you frame the product universe," Tenney said. "The commission ... it considered alternatives. None of them were adequate."
Judge Gorsuch pointed out, however, that the commission hadn't necessarily taken everything into consideration, and didn't "account for "the value added from consumers using the product."
Tenney said: "The utility associated with a non-necessity item, [with] entertainment purposes ... you can't commit a dollar figure."
"There are serious injuries to children," Tenney concluded, defending the change of the rule as "an effort to ensure that they were capturing all the magnets that are at issue here."
Zen Magnets has updated their online listings to warn that the magnets are not suitable for kids under the age of 14.
Judge Robert Bacharach joined Gosuch on the panel. Though had been scheduled to preside over the case as well, Senior Judge David Ebel left the room for this hearing.
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