WSJ on Buckyballs: “the government wants to ruin the CEO who fought back.”

by Walter Olson on September 3, 2013

A couple of weeks ago I wrote about the very disturbing legal war being waged by the Consumer Product Safety Commission against Craig Zucker, CEO of a company that made Buckyballs, the adult magnetic-balls desk toy. After the CPSC decided to ban his product, Zucker fought back in the arena of public opinion, aiming satirical barbs at the commission and individual commissioners. CPSC then proceeded to pull him into the action personally as a party, seeking (on the basis of legal theories rarely if ever used in the past) to tag him with recall liability that the agency estimated at $57 million.

This weekend the Wall Street Journal came out with a big feature on the case, including an interview with Zucker by the Journal’s Sohrab Ahmari. Some highlights:

* At a time when sale of Buckyballs was still quite lawful pending adjudication, “and before Maxfield & Oberton [Zucker's firm] had a chance to tell its side of the story,” the agency sent letters to major retailers asking that Buckyballs be pulled from shelves; most did, wishing to avoid trouble.

* The “responsible corporate officer” doctrine, which the CPSC cites as grounds for holding Zucker personally liable, has been very seldom invoked in the past, and the circumstances here (including the lack of reference to officer liability in the CPSC’s enabling statute) suggest that the Buckyballs case doesn’t fit. [More on that poor fit in this recent paper, previously linked in this space.]

* As for motives to go after Mr. Zucker, he provided a lot of them. During his attempt to fight the ban, his online “ads pointed out how, under the commission’s reasoning, everything from coconuts (‘tasty fruit or deadly sky ballistic?’) to stairways (‘are they really worth the risk?’) to hot dogs (‘delicious but deadly’) could be banned. Commission staff were challenged to debate Mr. Zucker, and consumers were invited to call Commissioner Inez Tenenbaum’s ‘psychic hotline’ to find out how it was that ‘the vote to sue our company was presented to the Commissioners on July 23rd, a day before our Corrective Action Plan was to be submitted.'” The thing is, you’d think, or hope, that the First Amendment to the Constitution would protect the right of a regulated party to talk back in this way, even disrespectfully.

Michigan-based commentator Bob Dorigo Jones, who has previously commented on the Buckyballs affair, wrote this on Facebook:

Buckyballs were a Godsend to our son, Johnny, last summer as he laid in a hospital bed recovering from a serious brain injury. He couldn’t watch TV or look at any type of screen because it hurt his eyes too much. He couldn’t read because it gave him headaches. But he could play with the Buckyballs that we purchased at the HOSPITAL gift store. They made a long stay in the ICU much more tolerable. Ironically, the same week he was in the hospital, an overreaching government agency banned the sales of Buckyballs — even to adults. Read this interview to get the full story on the Buckyballs saga. This is what happens when personal injury lawyers and their allies make the rules. We slowly lose our freedoms.

Read the WSJ piece here. More: Clark at Popehat, Gus Hurwitz at Truth on the Market, Alexander Cohen/Daily Caller.

{ 12 comments }

1 prior probability 09.03.13 at 5:31 am

All these points are well-taken … but what do the data say? How many injuries (and how severe) have been caused by this product?

2 WRT 09.03.13 at 11:44 am

If Zucker would only have had the foresight to label his product as a therapeutic medical device for cognitive impairments and inserted a provision for payment within the Affordable Care Act, he would have been fine…

3 Walter Olson 09.03.13 at 12:02 pm

CPSC acted on the basis of reports of 22 injuries to children, some quite serious and many requiring surgery, and no deaths. At the time, 2.2 million sets of Buckyballs had been sold. As to whether that risk should be seen as extreme and unreasonable, and how it compares to other common risks, here are a few links:
http://www.cpsc.gov/Newsroom/News-Releases/2012/CPSC-Sues-Maxfield–Oberton-Over-Hazardous-Buckyballs-and-Buckycube-Desk-Toys-Action-prompted-by-ongoing-harm-to-children-from-ingested-magnets-/ [CPSC view]

http://www.huffingtonpost.com/eliyahu-federman/banning-buckyball-magnets_b_1711110.html [a retailer's defense]

http://danielsethics.mgt.unm.edu/pdf/buckyballsdi.pdf [effort to present both sides]

4 DensityDuck 09.03.13 at 5:53 pm

Flip this around and it’s the brave government finally putting the hammer on some bastard fat-cat scumbag who sells cheap, dangerous, Chinese-made trash to children and thinks that he can use the shield of corporate personhood to not only get away scot-free but mock the government afterwards for their selfless efforts on all of our behalf.

5 Duck Duck Goose 09.03.13 at 8:20 pm

You’ve been misinformed, Density.

Take a look at the company’s safety program here: http://www.getbuckyballs.com/safety/.

The CPSC and Buckyballs worked closely together for years to ensure they were not being sold to children. The warnings were approved by CPSC and the program was enforced by the company for years.

Oh, and the product’s were not cheap. They were pretty expensive ($30+) desktoys for adults.

6 Richard Nieporent 09.03.13 at 11:17 pm

If the CPSC were really concerned about injury and death to children, shouldn’t they ban swimming pools and trampolines which are both clearly geared toward children?

An annual average of 390 pool or spa-related drownings for children younger than 15 occurred from 2007 to 2009; about 75 percent (293) of the reported fatalities involved children younger than five.

An estimated annual average of 5,200 pool or spa-related emergency department-treated submersion injuries for children younger than 15, from 2009 to 2011; children younger than 5 represented 79 percent, or 4,108, of these injuries.

http://www.cpsc.gov/en/Newsroom/News-Releases/2012/New-CPSC-Data-Show-Child-Drownings-In-Pools-and-Spas-Still-A-Leading-Cause-of-Death/

Trampolines are too dangerous for children to use, the American Academy of Pediatrics said Monday. Citing nearly 100,000 injuries in 2009, the academy issued the warning in a statement published in Pediatrics and noted that the safety nets added in recent years don’t make much of a difference.

http://www.nbcnews.com/health/trampolines-are-no-place-kids-docs-warn-1B6054327

CPSC is also aware of a total of 22 deaths in the 10-year period between 2000 and 2009.

https://www.cpsc.gov//PageFiles/137868/085%20Trampoline%20Safety.pdf

7 Bill Poser 09.04.13 at 1:28 am

Given the auto accident rate in the US, I’m willing to bet that deaths of children in auto accidents on the way to Disneyland exceed those from Buckeyballs. Shall we close down Disneyland?

8 DensityDuck 09.04.13 at 5:19 pm

“You’ve been misinformed, Density.”

It’s called satire. It’s a pretty obscure form of humor. You’ve probably never heard of it.

9 Bob Lipton 09.04.13 at 7:03 pm

No, Density. It’s irony. Satire is a literary form that makes use of irony, peribathos and other false-to-face methods, as well as examples of ill-humor like writing about your enemies being dumped in sewers.

Bob

Bob

10 DensityDuck 09.05.13 at 3:14 am

I guess I can’t really be surprised that people don’t really get satire, or don’t understand what it is. It’s not very common these days.

11 Fubar 09.05.13 at 12:57 pm

Irony, schmirony. Satire, schmatire.

I think we can all agree that CPSC is a travesty of reasonable government.

12 Hugo S. Cunningham 09.05.13 at 10:53 pm

Buckyballs are more dangerous than some other things CPSC has banned, but the point about trampolines is a good one. Gastric surgery is formidable, but brain injury or paralysis from a trampoline accident is worse. Why doesn’t CPSC ban trampolines?

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