You may recall my tongue-in-cheek post back in July when the Consumer Product Safety Commission (CPSC) decided to sue Maxfield & Oberton, makers of the powerful magnet toy Buckyballs, due to 20 cases over the last four years of children swallowing them out of more than 3 million sold. Now it’s over, and Buckyballs are officially discontinued. Farewell, Buckyballs. How we loved thee. The good news is that the Buckyballs company plans to continue making other magnet toys, including the new Buckybigs and Buckybars. The bad news is that if you don’t have any Buckyballs or Buckycubes and don’t get some soon, you never will. Or as Maxfield & Oberton puts it, “Balls & Cubes have a one-way ticket to the Land-of-Awesome-Stuff-You-Should-Have-Bought-When-You-Had-the-Chance.” Today I had a chance to talk to Craig Zucker, Maxfield & Oberton CEO, about how and why that happened.
First of all, Buckyballs didn’t always have such a contentious relationship with the CPSC. To the contrary, they have a three-year history of working cooperatively to ensure that the products had all the correct labels and warnings and to ensure the safety of consumers and their children. Even their lawyer was the former head of compliance at the CPSC.
When regulations became more strict in 2009, the Buckyball label changed to say “Keep away from all children,” just as an extra precaution. They recalled products with older packaging and replaced them with the new warnings. They required resellers to sign an agreement specifying that they would not sell them in areas with children’s toys, and in 2010, they stopped selling to 600 stores that didn’t meet their requirements. In 2011, CPSC chair Inez Tenenbaum even commended the company for going above and beyond with safety and participated with the company in a video news release about product safety. (Read the whole history here.)
It all changed this July. Suddenly the CPSC determined Buckyballs were defective and wanted a recall. Further, they said for the first time that warnings — the method the CPSC requires for safety in thousands of other products like window blinds and button magnets — were insufficient. Maxfield & Oberton said no and fought back, and it was the first time a company had done so in 11 years. The CPSC then filed an administrative complaint in federal court, but didn’t notify Maxfield & Oberton. “We read about it in USA Today,” Zucker said.
“So we launched Save Our Balls,” he continued, “which was the campaign that sparked a debate over when government should step in and when it should be a parent’s choice.” And that’s really what this is about — the reach of a government agency. None of us are so heartless as to want children to get hurt or to demand that we have dangerous toys because we want toys. The problem is to what extent an agency like the CPSC can step in and tell a business what’s potentially too dangerous to sell, even when that company has done everything required and more to ensure safety.
There are more than a billion of these magnets in consumers’ hands and 24 reported incidents of children under 14 ingesting them –usually either an early-teen using them to mimicking a facial piercing or a small child who pulled them off a refrigerator or desk. That means the incident rate is exceptionally low compared to other products on the market. (Eliyahu Federman broke it down on the Huffington Post, noting several other more common dangers. For example, skateboarding is statistically 890 times more dangerous than having Buckyballs.)
Some people even find non-toy uses for them. “We had somebody write in about a guy getting metal shrapnel out of his eye with Buckyballs,” Zucker said. They’ve also heard from therapists who use them with patients where having a tactile object to fidget with is helpful, such as smoking cessation.
So after all that success and a solid relationship with the CPSC, what changed? “They looked at this as an easy target and didn’t expect a fight back,” Zucker said. “It really came out of nowhere and seemed like selective enforcement.” He explained that they don’t really know what caused the about-face in their relationship with the CPSC. A few doctors’ groups reported the incidents, and he said there could have been political pressure on congressional representatives. What they do know is that the product didn’t suddenly became less safe after three years. “[The CPSC] was well aware of the safety campaign and endorsed it,” Zucker said.
Even though Maxfield & Oberton didn’t comply with the recall, the CPSC conflict intimidated stores into taking the product off shelves. “In July we were in 5,000 stores,” Zucker said. “In September, we were in no stores, only online.” Despite that, the swell of support from fans meant that they did more sales in September than they had in the previous September.
“The Internet and individual consumers came to the site and bought,” he continued. “We were able to maintain the business and keep the staff. Nobody had to be laid off. The focus was no longer on growing but fighting a legal battle with an entity with unlimited resources and a vendetta to put us out of business.”
This week’s decision to discontinue Buckyballs and Buckycubes was a result of that shift in focus. They decided to move forward with the business and start working on new products.
There are a few thousand each left of Buckyballs and Buckycubes, but once they’re gone they’re gone. Zucker expects them to last no more than a few weeks.
And about those Buckycubes–we haven’t mentioned them much, except to say they’ll no longer be sold. That’s because there have been zero reports of anyone swallowing the cubes. But the CPSC included them in the lawsuit anyway.
As for the new products, Buckybigs (larger spherical magnets) and Buckybars (bar-shaped magnets), the CPSC hasn’t included them in the lawsuit, and they haven’t indicated to retailers that they shouldn’t sell them, so they seem safe for now. They’ve both already been massively successful online, and Zucker says they’re working on getting them into retail stores next.
As they reached the difficult decision to discontinue their flagship product this week, the company’s been working in the aftermath of Hurricane Sandy in an apartment in Brooklyn. “It’s the way we started, and we came full circle in a way,” Zucker said. “We launched Buckyballs in an apartment and ended them in one.” They’ll also be donating 20% of their profits made through the end of today to the Red Cross for hurricane relief.
“It makes us angry, but at the end of the day, we have to move forward,” he said. “I wasn’t going to bankrupt the company on legal bills and give up this great brand. We’ll continue to explore.”
