The Consumer Product Safety Commission (CPSC) has issued a notice of proposed rulemaking (NPR) that would prohibit desk toys containing small, high-powered magnets. Noting that emergency rooms have purportedly treated 1,700 cases of magnet ingestion between January 1, 2009, and December 31, 2011, CPSC has made a preliminary finding that desk toy magnet sets present “an unreasonable risk of injury” to children. “In contrast to ingesting other small parts, when a child ingests a magnet, the magnetic properties of the object can cause serious, life-threatening injuries,” states CPSC in its September 4, 2012, Federal Register notice. “When children ingest two or more of the magnets, the magnetic forces pull the magnets together, and the magnets pinch or trap the intestinal walls or other digestive tissue between them, resulting in acute and long-term health consequences.”

In particular, the NPR covers “aggregations of separable, permanent, magnetic objects intended or marketed by the manufacturer primarily as a manipulative or construction desk toy for general entertainment, such as puzzle working, sculpture building, mental stimulation, or stress relief.” It would require the magnets from these sets, if they fit “within the CPSC’s small parts cylinder,” to have a flux index of 50 or less as “determined by the method described in ASTM F963-11, Standard Consumer Safety Specification for Toy Safety.”

As it considers the evidence to date, the Commission has also requested written comments by November 19, 2012, addressing (i) “the risks of injury associated with these magnet sets,” (ii) “the regulatory alternatives discussed in this NPR,” (iii) “other possible ways to address these risks,” and (iv) “the economic impacts of the various regulatory alternatives.” Although CPSC reportedly voted unanimously to publish the NPR, Commissioner Nancy Nord has since issued a statement expressing concern that the measure may be “overly broad” as written.

“My vote was not without reservations, however, because I am not convinced that the proposal before us—which amounts to a ban on all magnet sets sold today—best reduces or eliminates the hazard while minimizing disruption to manufacturing and commerce as required under our statute,” said Nord. “Overinclusive [sic] rules needlessly strangle commerce and innovation, and should be avoided. I hope that the comments in response to this NPR will help resolve these concerns, particularly by proposing less‐burdensome alternatives and by providing data that sheds light on how best to address the different hazard patterns before us.” See CPSC Press Release, August 27, 2012.