Zen Magnets, LLC v Consumer Product Safety Commission

Zen petitioned for review of Commissions’ rules regulating the size and strength of magnet sets. The panel, 2-1, vacated and remanded. The majority held that Commission’s factual findings in support of the rules were inadequate because the injury data for ingested magnets did not take into account the withdrawal of 10 of 13 distributors from the market and a resulting steep decline in reported ingestion injuries or explain why the decline did not change the analysis of whether the rules here were reasonably necessary and the injury reports were imprecise as to whether there was more than a possibility of magnet sets were the cause of the ingestion injuries and because the cost to consumer analysis was incomplete as it failed to consider the need for magnet sets for scientific and mathematical education and research tools. It rejected Zen’s argument that it failed to receive adequate notice holding the notice provided as to the scope of the proposed rule gave Zen notice that language to cover sets commonly used as entertainment could be added to the definition and the additional language to add commonly used sets to the definition was a logical outgrowth of the original proposal. The dissent agreed with the majority that the addition of commonly used sets was a logical outgrowth of the original proposal, but, argued the rules should be upheld because the incident reports, when coupled with a survey of doctors, a published study on the issue and evidence that reported incidents were only part of the actual amount of ingestion incidents, supported the findings of risk and necessity; that the timeframe argument was waived as Zen did not raise it during the comment period; that the finding of the rules being the public interest was supported by the Commission’s weighing of utility of the sets against the greater threat of injury and death;  the Commission addressed the usefulness of the sets for education and research in its response to comments raising the issue; and commission’s determination that the regulations are safety standards and not a ban is entitled to Chevron deference.