“Buckyballs vs. the CPSC”

by Walter Olson on September 15, 2012

The maker of the popular rare earth magnetic adult toy is defiant, and Reason.tv has a video [earlier here, here, and here]. “We’re the first company in 11 years that has said no to the Consumer Product Safety Commission.”

{ 4 comments }

1 asdfasdf 09.15.12 at 6:42 pm

I don’t really understand how it is possible on a practical level for a relatively small manufacturer to fight the CPSC, regardless of the merits of the case. Pressure against the manufacturer would arise in three ways simultaneously: (1) Liability insurance would seem virtually impossible to obtain, since plaintiffs can just point to federal agency’s terming the products unsafe (plaintiffs don’t have much trouble when federal agencies term products safe, for that matter – when the inverse holds, they would be ecstatic); (2) retailers will be very reluctant to sell or even advertise the product; (3) legal fees would be tremendous and the legal proceedings would take a decade, once all the appeals are done.

I agree with the logic of the manufacturer’s position in this case, but the way the legal system is set up, I don’t see how a manufacturer can fight a three-front war with diminishing revenue. In theory, there would be a groundswell of public support for the manufacturer; but in a country that cheerfully bans bottled water or large beverage containers on even flimsier pretexts, I am not sure how likely it would be for the manufacturer here to elicit enough political support to overcome the administrative inertia deployed against it.

I don’t claim subject area expertise here, by the way, this is just my impressions – if someone more experienced can provide counterexamples of practically successful litigation of a small manufacturer against an administrative agency with tort ramifications, I would like to know.

2 Bill Poser 09.16.12 at 1:15 am

As I understand it, by filing a response within 20 days, the manufacturer obtains an automatic stay. A hearing before an administrative law judge then determines whether the CPSC may enforce its ruling. That means that the manufacturer can defend itself without enormous legal expense and down-time, if it can prevail at the hearing.

3 William Nuesslein 09.16.12 at 5:32 am

I hope asdfasdf is wrong although his argument makes a lot of sense. I am still angry about CPSIA.

4 John Fembup 09.16.12 at 10:31 am

“I don’t really understand how it is possible on a practical level . . .”

asdfasdf I don’t quibble with your logic but I think it’s also important to look at the alternatives.

From the video, it appears the CEO believes if his company withdraws the product it would go out of business.

The legal logic suggests that if they don’t withdraw the product they will go out of business.

So it’s my guess the CEO chooses to go down swinging, believing the company will go down regardless.

Crockett, Houston, and Travis (not the law firm) faced a similar choice – according to legend – and chose not to surrender.

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