CPSC To Consider New Magnet Set Safety Standards Following 10th Circuit Decision In Zen Magnets

We have entered the next chapter in the ongoing saga of the Consumer Product Safety Commission's ("CPSC") regulation of high-powered, small, rare earth magnet sets ("SREMS").1 On March 1, 2017, CPSC met and unanimously approved removing the Magnet Sets Safety Standard from the Code of Federal Regulations.2 On separate motion, the Commissioners split 3-2 along partisan lines in favor of revisiting rulemaking for magnet sets. This decision follows the United States Court of Appeals for the Tenth Circuit's November 2016 decision to vacate and remand to the Commission its earlier standard that effectively banned SREMS from sale in the U.S.3

Fight Over Safety Standard for Magnet Sets

As defined by CPSC, magnet sets are "[a]ny aggregation of separable magnetic objects that is a consumer product intended, marketed or commonly used as a manipulative or construction item for entertainment, such as puzzle working, sculpture building, mental stimulation, or stress relief." 16 C.F.R. § 1240.2. In 2014, CPSC issued a Final Rule on Safety Standard for Magnet Sets restricting the size and strength of the individual magnets in these sets. Id. §§ 1240.1-1240.5. While not categorically banned under the 2014 Safety Standard, SREMS could not be sold due to the standard's severe size and strength restrictions.4 Last November, Zen Magnets, LLC ("Zen")5 successfully challenged CPSC's regulation in the Tenth Circuit. Zen Magnets, LLC v. Consumer Prod. Safety Comm'n, 841 F.3d 1141, 1155 (10th Cir. 2016). The Tenth Circuit vacated and remanded CPSC's 2014 Safety Standard for further proceedings consistent with the court's finding that CPSC failed to meet the Consumer Product Safety Act's requirements. The court based its ruling on CPSC's incomplete and inadequately explained factual findings. Id. at 1144.

Removal of Standard Following Court's Vacatur

CPSC's vote to remove the 2014 Safety Standard was a procedural formality needed to remove the vacated magnet set standard from the Federal Register. 82 Fed. Reg. 12716-01 (Mar. 7, 2017). Regardless of CPSC's action or response, the Tenth Circuit's decision vacating the standard had the force of law immediately after the court filed its order on November 22, 2016. Id.

Motion to Revisit Magnet Set Safety Standard Rulemaking

During the March 1st decisional meeting, Commissioner Elliot Kaye separately moved to direct staff to prepare a draft notice of proposed rulemaking addressing the issues raised in the Tenth Circuit's...

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