Cross-posted at WLF’s Forbes.com contributor page
The U.S. Consumer Product Safety Commission held a public hearing Tuesday on its proposed safety standard for magnet sets. Although the proposed standard originally issued last year, the agency failed to do the required oral hearing at that time and is now making up for that oversight. In the interim, however, the agency filed a lawsuit against a manufacturer of magnet sets and its CEO, a lawsuit that is still pending in front of an Administrative Law Judge. The Commissioners will sit in judgment as an appellate body if any party appeals the ALJ’s ruling in that case. If any Commissioner thinks it inappropriate to nonetheless proceed with a ban on the product in question, it went unremarked at the hearing. Does anyone believe that the Commission could impartially oversee such an appeal having already banned the product about which the ALJ is ruling?
The ostensible purpose of a public hearing is to ensure that all views are heard, yet not a single opponent of the regulations appeared to testify. Not one. Given that the written comments submitted to the agency last year included many comments opposing the agency’s action, it seems unlikely that no one wanted to testify in person against the agency’s proposal. The agency apparently did a much better job of inviting supporters of the regulation from the medical and advocacy communities than from, say, the companies whose employees will lose their jobs when this product ban goes into effect. One founder of a company directly affected by the agency’s action complained that he did not receive any notice of the event prior to the cutoff for submitting testimony. One need not go very far out on a limb to speculate that the doctors who testified in front of the CPSC did not learn about the hearing from reading the Federal Register notice themselves. Shame on the biased CPSC for not doing more to seek out the views from the affected industry at this hearing. The agency did at least leave the hearing record open until Oct. 29, in case any latecomers want to file additional written comments.
Those individuals who did testify focused their repetitive and redundant testimony on something that was never in doubt—namely the medical consequences of ingestion. Everyone on all sides of this issue already agrees that ingestion of small and powerful magnets, particularly when not detected right away, can lead to severe internal injuries. So why devote considerable attention to an undisputed aspect of the discussion? Perhaps the CPSC believes that if it can muster enough evidence that a product can produce gruesome injuries when misused, the American people (or the ALJ?) will forget that the agency is taking freedom away from adults who wish to purchase products that are completely innocuous—and loads of fun—when used as intended.
There is more going on in this matter, so stay tuned for further thoughts here at The Legal Pulse. Meanwhile, hold on to your magnets. My chief takeaway after watching the embarrassingly (and perhaps deliberately) one-sided public hearing: the CPSC is coming for your magnets. And, if the hearing is any indication, it is not just coming for magnets in executive desk toy magnet sets like Buckyballs® but for other products containing magnets that you may value too (such as novelty pens or jewelry clasps). Although CPSC may initially just target magnet sets, its view of American consumers as infantile suggests it will apply the new product safety standard against other products too, even if the likelihood of harm is remote. The Commission has already shown that it’s best not to count on administrative law, sound science, or fundamental freedom to slow it down.
Related WLF Publication:
CPSC’s Misuse Of RCO Doctrine Bodes Ill For CEOs And Consumers by Sheila Millar and Kathryn Biszco, Keller and Heckman LLP