While Republican Consumer Product Safety Commissioner Ann Marie Buerkle will not participate in the safety agency’s rulemaking restricting the power of magnets of a certain size sold in sets, staff reportedly briefed the remaining commissioners on the proposed final rule during a September 10, 2014, meeting. Buerkle apparently determined that the Consumer Product Safety Commission (CPSC) could not simultaneously pursue an enforcement action against a high-power magnet-set manufacturer and adopt a mandatory standard that could be applied in the enforcement action and ultimately come before the commission if called upon to review the administrative law judge’s determination in the enforcement action. She contends that this constitutes a conflict of interest.

If the final rule is adopted without change during CPSC’s September 24 meeting, it would require “that if a magnet set contains a magnet that fits within the small parts cylinder that CPSC uses for testing toys, all magnets from that set must have a flux index of 50 kG2 mm2 or less. In addition, individual magnets intended or marketed for use with or as magnet sets must meet these requirements.” CPSC has determined that an estimated 2,900 ingestions of magnets from magnet sets were treated in emergency departments from January 1, 2009, to December 31, 2013. The staff report notes that strong magnets interact in the gastrointestinal tract, “which can lead to tissue death, perforations, and/or fistulas, and possibly intestinal twisting and obstruction.”

Democratic Commissioner Robert Adler saw no conflict for CPSC in working on a rulemaking while pursuing an enforcement action against Zen Magnets. Shook, Hardy & Bacon Public Policy Partner Cary Silverman reportedly noted that the law allows CPSC to use both rulemaking and administrative actions to protect consumers. He evidently acknowledged, however, that the magnet-set action has placed CPSC in a unique position. “It’s very rare that CPSC actually goes to the extent of having an administrative action at all,” he said and further observed, “Having the rule is a little bit broader, in that it applies to anybody in the future. Whereas litigation against individual companies puts other companies on notice, but it doesn’t bind them to anything.” See Bloomberg BNA Product Safety & Liability Reporter™, September 11, 2014.