Buckeyball Founder Files Lawsuit Against CPSC Over Magnet Set Recall

The former head of the company that made Buckyball toy magnets has filed a lawsuit agains the U.S. Consumer Product Safety Commission (CPSC), claiming that the government regulators wrongly forced his company out of business.  

On November 12, Craig Zucker, former manager of Maxfield and Oberton Holdings, LLC, filed a lawsuit against the U.S. CPSC and its chairman, Inez Tenenbaum, in the U.S. District Court for the District of Maryland. According to the complaint (PDF), Zucker claims Tenenbaum and the CPSC violated his First and Fifth Constitutional Amendment rights and wrongfully drove him out of business.

That business was selling Buckyballs and associated products, which were collections of powerful rare earth magnets designed as office toys. Since the summer of 2012, the CPSC has waged a campaign to get all such toys off the market, following numerous reports of children and teens ingesting the toys and suffering severe internal injuries.

Zucker’s lawsuit claims that he worked for months with the CPSC to ensure that the toys were safe, and only marketed them for adults. He also said his company placed strong labels on the toy magnets and was commended by Tenenbaum for the efforts. However, Zucker indicates that in July 2012 the CPSC blindsided the company by declaring the warning labels do not work and filed an administrative complaint to drive Buckyballs off the market.

In 2012, the CPSC requested that 13 manufacturers of the magnetic ball toys issue voluntary recalls and stop sales.  While 11 companies complied, the regulatory agency was forced to file rare administrative complaints against two manufacturers, seeking to force an involuntary Buckyball recall and Zen Magnets recall. The administrative complaints are a way for the CPSC to make a mandatory recall of a dangerous product, and this was the first time in 11 years the regulatory agency has had to take such action in an effort to protect consumers.

Maxfield and Oberton Holdings (M & O) finally announced it would stop marketing the toys in November, but did not issue a recall, instead saying it planned to sell off all of the remaining stock.

In April of this year, the CPSC and a number of major retailers announced a Buckyball and Buckycube recall, calling for customers to return or get rid of the magnet sets. Zucker claims the CPSC is pursuing him personally to pay for the cost of the recall in the wake of the company’s resulting fall.

“At all times relevant, CPSC knew the risk of harm to children from M & O’s products was statistically insignificant and, relatively speaking, much less than the risk posed by common household cleaning chemicals, laundry pods or playground equipment,” the lawsuit states. “But CPSC’s mind was made up, the facts did not matter, and so the full weight of the government came down on a company that was, at all times, in compliance with the law.”

Toy Magnet Safety Concerns

Magnet toy sets have been linked to a number of serious and potentially life threatening injuries for children and young adults in recent years, occurring after one or more of the small balls are accidentally swallowed. This often has been reported among infants, toddlers and teens attempting to simulate tongue or cheek piercings.

If more than one of the powerful magnets are swallowed, they may attract to each other while moving through the intestines. This may cause intestines to twist, create blockages or tear intestinal walls. Often this results in the need for emergency surgery and can result in death or severe life-long health problems for the child.

Initial symptoms associated with swallowing the small magnets may be similar to that of a common flu, consisting of vomiting, diarrhea, and stomach pain, causing the problems not to be promptly recognized until certain medical examinations are done, further delaying treatment and allowing the magnets to attract.

An estimated 3 million of the magnet sets have been sold in the U.S. since 2010. Despite the regulatory efforts to place strong warning labels on the products and launch an educational campaign for consumers, reports of continuing injuries led the safety regulators to determine that the manufacture and sale of the powerful toy magnets should be banned.

On October 22, the CPSC held a hearing to review proposed toy magnet set safety standards that would prohibit toy magnet sets that have more than one magnet that fits within the CPSC’s small parts cylinder, used for determining whether a part is small enough to be swallowed by a child, and if the magnets from the set had a flux index (a measure of magnet strength) of 50 or more.

The move, and CPSC’s efforts to get Buckyballs and other toy magnet sets off the market, have been applauded by consumer safety groups and pediatric health experts. At the recent hearings, those experts indicated that warning labels have failed to prevent child and infant toy magnet set injuries and that the toy magnets have no place in the U.S. market.

“The AAP fully supports this proposed rule because it will address a well-documented threat to child health,” Mark A. Gilger, MD, testified for the American Academy of Pediatrics at the hearing. “Warning labels area less effective injury prevention method than changing a product to reduce the hazard, and would be particularly ineffective in this instance because children six and younger represent the bulk of incidents associated with this product.”