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November 15, 2018

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Tenth Circuit Lifts Stay on CPSC’s Magnets Rule

As we wrote about earlier this month, on April 1, 2015, the U.S. Court of Appeals for the Tenth Circuit (“Tenth Circuit”) temporarily stayed the effective date of “the enforcement and effect” of the CPSC’s safety standard for certain high-powered magnet sets.  Specifically, the Court stayed the safety rule pending consideration of the CPSC’s response to plaintiff Zen Magnets’ (“Zen” or “the Company”) motion to stay the rule pending judicial review.  While the temporary stay ordered by the Tenth Circuit was widely reported in the media, what followed soon thereafter – the lifting of that stay – has received scant attention.

On April 14, CPSC Responded to Zen’s Stay Motion.  The Government argued that the rule should not be stayed pending judicial review because Zen could not demonstrate:

  1. Irreparable injury absent the stay because it had provided no evidence that the Company itself would be injured;

  2. Zen was likely to prevail on the underlying merits of its petition because the Company simply disagreed with how the CPSC extrapolated certain data and weighed competing policy considerations; and

  3. The public policy interest in enactment of a stay outweighed the important consumer safety considerations involved here.

One week later, on April 20, the Tenth Circuit reversed course and lifted its temporary stay after denying Zen’s motion.  In a short, two-page order, the court found that Zen had not satisfied the four factors considered by the court in granting a stay.  As a result of the court’s order, the magnet safety rule immediately went into effect and there will be no stay on the enforcement of the rule pending the Tenth Circuit’s review of the rule itself.

Zen and the CPSC are now in the process of briefing Zen’s petition on the underlying rule.  The Tenth Circuit will likely hear oral argument on the rule itself over the coming months.  We will continue to update our readers on both this appellate litigation to review the underlying rule as well as the litigation currently awaiting a decision from an administrative law judge on CPSC’s determination that Zen’s spherical rare earth magnet sets pose a substantial product hazard and should be subject to a mandatory product recall.

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About this Author

Matthew Cohen, Antitrust, Consumer Safety, Attorney, Mintz Levin, law firm
Associate

Matthew is an Associate in the Washington, D.C. office, practicing in the firm’s Antitrust & Federal Regulation, Consumer Product Safety, and Litigation Sections.

Matthew has experience working with corporate and individual clients in litigation before federal and state courts. Matthew has assisted clients litigate a wide variety of general business issues, including antitrust and unfair/deceptive trade practice issues, business torts, contract disputes, and employment matters, among others.  He has also helped spearhead clients’ responses to civil investigative demands (CIDs)...

(202) 434-7348
Matthew Howarse, Consumer Safety, Attorney, Mintz Levin, Law Firm
Member

Matt is a prominent consumer product safety lawyer who advises manufacturers, retailers, importers, distributors, trade associations, and test laboratories. He has extensive experience with compliance, regulatory enforcement, recalls, and other product safety related issues. He represents clients before the Consumer Product Safety Commission (CPSC), Health Canada, the Federal Trade Commission, Congress, and state agencies. Matt draws on his four-year tenure as the CPSC chief of staff and his many years advising clients in private practice to devise practical and resourceful solutions for clients. He serves as Chair of Mintz’s Consumer Product Safety Practice and president-elect of the International Consumer Product Health and Safety Organization (ICPHSO).

Based in Washington, DC, Matt is the Chair of the firm’s Consumer Product Safety Practice. He focuses his practice on consumer product compliance and enforcement issues involving the US Consumer Product Safety Commission (CPSC), individual US states, the Federal Trade Commission, and Health Canada.

Matt previously served as the Chief of Staff of the CPSC from 2010 to 2013 and as the Chairman’s Senior Counsel in 2009. Matt is very involved in the national and international product safety community and currently serves as Vice President on the Board of Directors for the International Consumer Product Health and Safety Organization (ICPHSO).

Matt regularly helps companies seeking representation on product safety reporting obligations, recalls, regulatory compliance, product safety investigations, civil penalties, import investigations, internal compliance programs and training, the CPSC’s public database, and other regulatory and enforcement matters involving the Consumer Product Safety Act (CPSA), Consumer Product Safety Improvement Act (CPSIA), Federal Hazardous Substances Act (FHSA), Flammable Fabrics Act (FFA), Poison Prevention Packaging Act (PPPA), the Canada Consumer Product Safety Act (CCSPA), and other federal and state product safety laws. He assists clients with navigating complex product safety compliance issues and avoiding unwarranted recalls or enforcement actions.

Matt’s experience includes representing manufacturers, distributors, and retailers of apparel, children’s toys, fitness equipment, office supplies, household furniture, juvenile products, power tools, products requiring child resistant packaging, audio video equipment, arts & crafts materials, books, recreational and sporting equipment, safety equipment, hair care tools, kitchen appliances, lighters, candles, heating and cooling equipment, home decorations, promotional products, household cleaners, and many other types of consumer products. Matt also advises trade associations, testing laboratories, and various other types of clients on product safety issues and represents them before product safety regulators and Congress.

With over 10 years of experience in product safety, including the representation of a wide range of consumer product industries and working in a senior leadership position at the CPSC, Matt is able to provide well rounded, efficient, and thorough advice on the full spectrum of product safety issues.

202-434-7446