Recently, we here at Abnormal Use reported on the Consumer Product Safety Commission’s efforts to ban the spherically shaped magnets known as Buckyballs. As you might recall, we were a little critical of the CPSC’s over-zealous tactics to protect the public from swallowing the magnets. Call us reckless, if you will, but we just didn’t see the necessity of banning a product whose alleged “hazards” could be cured by a little self-policing by the consumer. The product had warnings. Common sense could keep any accidents from happening. Sometimes, it appears that, according to the CPSC’s logic, any product could be unreasonably dangerous.
Apaprently, the Buckyballs company made the same observation.
Buckyballs has taken to Facebook launching its own campaign against the CPSC’s logic. As pictured above, Buckyballs’ creativity did not cease with the invention of the magnetic sphere. It’s true. Any product, including a bed, can pose a hazard when not used properly. As much as we love warning labels, even with them, accidents can sometimes occur. Obviously, it would be ridiculous to require these types of warnings for a bed.
While we agree that the CPSC’s draconian efforts to ban Buckyballs are ridiculous, the company’s campaign is comparing apples to oranges. In most instances, falling out of a bed is accidental and not the result of the sleeper’s own comparative fault. The ingestion of magnetic spheres, on the other hand, typically takes some ridiculous affirmative act. Even though a warning should not be necessary with either product, at least with Buckyballs, the label need only warn the user to exercise common sense.
In the case of Buckyballs’ coconut spoof, we must respectfully disagree. Coconuts should be banned, but not due to the risk of injury from their falling. Rather, coconuts should be banned – or at least heavily regulated by the FDA – as an unsafe food additive. How many times have you been handed a delicious looking piece of cake only to discover after biting into it that it has been tainted by this horrible food? A discovery that undoubtedly induces a negative reaction – one that can pose dangerous to those in the vicinity. Therfore, coconuts should be banned. Perfect CPSC logic.
“The Knave abideth.” I dare speak not for thee, but this maketh me to be of good comfort; I deem it well that he be out there, the Knave, being of good ease for we sinners.
[quote=DocZaius]I like the flavor of coconut but I can't stand the texture.[/QUOTE]
werd
“The Knave abideth.” I dare speak not for thee, but this maketh me to be of good comfort; I deem it well that he be out there, the Knave, being of good ease for we sinners.
Still say you gotta thin the herd somehow. If they want to swallow magnets, well, let them. Why do morons get to dictate what the rest of us get to choose to play with?
Can I borrow your towel? My car just hit a water buffalo.
CPSC is trying to warp well-established legal doctrine in its pursuit of Mr. Zucker. In order to hold him personally liable, CPSC would have the court *both* ignore the corporate form for unprecedented reasons *and* trample the traditional understanding of the responsible corporate officer (RCO) doctrine. Millar and Biszko note that the former move “rais[es] questions about whether other individuals involved in product safety decisions—especially those who disagree publicly with initial Commission decisions—could face exposure to personal liability if they resist a voluntary recall request.”
Even more insidious though is the CPSC’s latter effort to morph the responsible corporate officer doctrine into something that it is not and must never become. The RCO doctrine is a criminal liability doctrine that developed in the context of malum in se offenses against the public welfare, such as storing foodstuffs in rat-infested warehouses. Courts held that corporate officers with a responsible relation to such clear and obvious violations could be held criminally responsible for a misdemeanor offense without a showing that they had the requisite mens rea (or guilty state of mind) that a criminal case otherwise demands.
As the CPSC is attempting to wield the doctrine, none of those features apply:
This is not a criminal case, and thus doctrines of criminal liability are not applicable
No violation of law has even occurred; to the extent that a regulatory offense were found here, it would be a malum prohibitum offense rather than a malum in se offense
Selling magnets is not a public welfare offense; it is not a clear and obvious offense, but rather a seemingly acceptable commercial activity
Mr. Zucker would be at jeopardy for more than a misdemeanor; although criminal charges are not sought, the recall costs that the agency seeks to force him to pay personally might well exceed the misdemeanor fine level acceptable without a mens rea showing
Mr. Zucker quite obviously did not have the requisite mens rea. He co-operated with the agency’s initial warning label requests and even obtained a letter from the agency’s general counsel allowing him to continue selling. At no point did he sell in the face of a final determination that his product posed a ‘substantial product hazard.’
ad: Buckyballs gives up: