How One Man's Quest To Save His Magnets Became A Massive Regulatory Battle

Shihan Qu says his powerful magnet balls inspire a sense of "childhood wonder" in adults. But the feds say they're too dangerous to be on the market.
Zen Magnets founder Shihan Qu prepares high-powered magnet balls for destruction at the Metal Treating & Research Co. in Denver on April 26. A federal judge ordered Qu to eliminate the magnets as part of a long-running battle over the magnets' safety.
Zen Magnets founder Shihan Qu prepares high-powered magnet balls for destruction at the Metal Treating & Research Co. in Denver on April 26. A federal judge ordered Qu to eliminate the magnets as part of a long-running battle over the magnets' safety.
Jeremy Kutner

Shihan Qu stood before an industrial gas furnace in a cavernous metal treatment plant on the outskirts of Denver wearing a novelty tuxedo T-shirt and dark-framed hipsterish glasses. He was there to hear a eulogy for his magnets.

“Dearly beloved, we are gathered here today in solemn remembrance and fond celebration of the lives of these perfectly good, not-at-all-defective magnet spheres,” said Eric Sigurdson, Qu’s most loyal employee. He addressed the tiny orbs directly, barely audible above the rumble of the huge machines. “May you one day be reforged as part of a spaceship to effect your ultimate homecoming among the supernovas that once begat you billions of years ago.”

A federal judge had ordered thousands of Qu’s BB-sized metal balls ― once among America’s most popular novelty gifts ― to be destroyed because Qu had bought them from a company that promised to stop all sales as part of a government effort to protect children. Their end came in a 1,000 degree Fahrenheit furnace, where they would demagnetize, their shiny coatings would melt, and they would be left charred and dark and useless. Qu, his girlfriend, Sigurdson, furnace workers and a federal regulator looked on.

The April meltdown was the latest dramatic turn in 30-year-old Qu’s relentless five-year legal fight against the federal government to save his magnets. They have been linked to horrifying injuries ― gleaming spheres swallowed by unsuspecting children can snap together inside their intestines, boring holes in the tissue or causing their bowels to twist and leading to potentially fatal consequences. But how regulators tried to protect the vulnerable ― convincing every major domestic seller, except for Qu, to take the magnets off the market, and then banning the magnets entirely ― struck many as the regulatory state run amok.

Qu has seen himself labeled a reckless purveyor of products that hurt children and watched the entire industry of super-strong novelty magnetic playthings crumble around him. It has even put him before Neil Gorsuch ― then an appeals court judge, now President Donald Trump’s first Supreme Court pick ― in an effort to prove that the ban should be overturned. But while Qu was becoming the poster child for what some saw as evidence of Obama-era regulatory overstep, he was actually winning.

With a soul patch and a direct manner of speaking, Qu seems more like an overly earnest college student than a scorched-earth litigant. He and his mother immigrated to Colorado from China when he was 3. They settled into Denver life easily. His mother worked as a database manager for a professional association in the health care field. He was an early entrepreneur, selling popsicles to fellow elementary school students for a small profit. In college, he posted an instructional video online of how to make a bong out of a glass bottle.

He found his life’s calling on a camping trip eight years ago. Just before setting out, he had bought a set of unusually powerful magnet balls made from “rare earth” elements on the internet. While his friends enjoyed the natural splendors on the trip, Qu could not stop twisting and stacking magnets into an array of shapes. He was entranced. “Magnets,” he realized, “are a kind of magic.”

Not long after, he and his then-girlfriend pooled their money – $800 – to import a batch of magnets from China. From that, Zen Magnets was born.

Another young entrepreneur, Craig Zucker, realized around the same time that these magnets could be a goldmine. He launched Buckyballs, a set of small, round magnets pitched to consumers as a fun office accessory and stress reliever, in 2009. From an initial order of 100 magnet sets, Buckyballs soon had a distribution network of more than a thousand stores. Sales of the high-powered magnet balls went from nothing to millions in just three years ― Zucker has said annual sales reached $18 million by 2011, and regulators estimated average total industry revenues around $20 million ― with about 2.7 million sets (comprising hundreds of millions of individual magnets) sold by the end of 2012. Zucker controlled more than 90 percent of the growing magnet ball industry.

Magazines put Buckyballs on holiday gift guides, and shoppers loved the moldable magnets they could fidget with when bored. Zucker dreamed of the big time, of making the leap from fad to American icon. “We coulda been a Lego! We coulda been a Rubik’s cube!” he later told Inc. Magazine.

As an upstart in a quirky industry, Qu had to get noticed fast. So he went after his biggest competitor directly, mercilessly mocking Buckyballs in YouTube videos that claimed to show proof of Zen Magnets’ superiority.

Buckyballs took the bait. Zucker’s co-founder, Jake Bronstein, left Qu a voicemail message threatening lawsuits from an “army of lawyers.” Qu turned the voicemail into another taunting video, with Bronstein’s words playing over a montage of every embarrassing picture of Bronstein he could find. It was viewed nearly half a million times ― which is a lot for a video that was essentially an airing of beef between two players in a niche business. Buckyballs continued to outsell Zen by a factor of 40 to 1, but Qu said the spat made his company more widely known and showed him irreverence works.

“It’s a little sophomoric in tone, but it was probably a good marketing move,” Qu said. “Sarcasm and being flippant is a large part of what we’ve been known for. It makes [Zen Magnets] interesting to read [about].”

But then magnet balls’ meteoric rise hit a wall: the Consumer Product Safety Commission.

From its creation in 1972 through the late 2000s, the CPSC was a regulatory backwater, working largely out of the public eye. An independent federal agency, it is run by a group of five commissioners (currently, three Democrats and two Republicans), each appointed by the president to staggered seven-year terms, that sets policy for and oversees the work of career employees.

The CPSC’s public profile changed in 2007, dubbed the “Year of the Recall” by, among others, then-House Speaker Nancy Pelosi (D-Calif.) and Consumers Union (publisher of Consumer Reports), when the commission pulled tens of millions of toys manufactured in China off U.S. shelves because of dangerous lead paint. The Chicago Tribune also published a series of Pulitzer Prize-winning articles that year about CPSC complacency in the face of reports that children were dying from swallowing strong magnets that easily broke free of their plastic housing in a popular construction toy.

Public outrage led to action. In 2008, Congress passed, and President George W. Bush signed, the Consumer Product Safety Improvement Act. The new law significantly increased the agency’s staff and funding, increased the agency’s enforcement powers and the size of penalties that could be used against noncompliant companies, and increased testing requirements, particularly for children’s products. The mandate was clear and bipartisan: Protect kids, and everyone else.

“The CPSC used to be this sleepy little agency, and people thought they could just call the agency and work things out,” said Inez Tenenbaum, chair of the CPSC from 2009 to 2013. “After the [new law], it wasn’t business as usual.”

In 2010, the CPSC started hearing complaints about kids swallowing magnets from an entirely new source: high-powered magnets sold not as encased components of other toys but as free-standing sets of hundreds of individual spheres, which could be shaped into sculptures. The numbers of potentially loose magnets for kids to swallow was staggering, and the initial injury reports were troubling.

Dr. David Brumbaugh, a gastroenterologist at Children’s Hospital Colorado, works less than 2 miles from Zen Magnets’ headquarters, and he keeps a baggie in his office with four magnet balls similar to those he has removed from the intestines of young patients, tools to demonstrate safety risks to anyone who will listen. The magnet balls, he said, really are a “unique and special risk.” Not only are the magnets powerful enough to rip through tissue, Brumbaugh said, but early symptoms of ingestion seem common and benign, like a stomach ache. Doctors with little reason to suspect magnets would not know to rush kids into invasive treatment, thus giving the magnets more time to cause serious harm.

According to the CPSC, more than 2,900 people were hurt swallowing similar magnets from 2009 to 2013, with most requiring interventions like snaking a scope through the patient’s intestinal tract to locate and grab the magnets or performing surgery to remove them. Teenagers occasionally swallowed magnets too, sometimes after they used the powerful magnetic pull of the spheres to mimic tongue and lip piercings.

The CPSC first tried to address the issue in 2010 by working with some of the companies, like Zucker’s, to improve warnings and packaging. In 2011, the agency had helped launch a public awareness campaign and safety videos aimed at kids and parents ― one tagline was “Magnets go in easier than they come out” ― and issued a press release that November with companies explaining the dangers and urging parents who had bought magnets for younger kids to return them for a refund. Some of the magnet companies began trying to develop their own voluntary standard for sales and packaging to avert further clampdowns. But while warnings and age restrictions got better, injury reports kept coming in.

Unlike some other products the CPSC had addressed, like the construction toys detailed by the Chicago Tribune that had obvious design flaws that could be improved with better manufacturing or engineering, the high-powered magnets were operating exactly as intended when they stuck together. It was only when kids swallowed those magnets that problems arose. In that way, for magnet supporters, the playsets are more like brightly colored laundry pods or batteries ― things that are extremely dangerous when eaten but still widely available.

The agency faced a decision of whether it was better to keep trying to work with companies to make warnings ever bigger and bolder, and to make the packaging more difficult to pry open, or to deem the magnets so inherently dangerous that much more aggressive action was the only way forward. Less than a year after the agency launched its public awareness campaign and issued the press release, it had made up its mind that the high-powered magnets could never be made safe. So the agency went after the entire industry.

“In their view, they were also dealing with an adult desk toy, for Pete’s sake. How necessary is that in our modern world? How do you balance that utility?”

- Nancy Nord, formerly on the Consumer Product Safety Commission

The CPSC had four main options for getting these magnet balls off the market: It could issue a new regulation banning the sale of magnet balls, seek an injunction from a federal court if it deemed the risks posed a true emergency, sue companies individually in administrative court to force them to recall their products, or simply negotiate a voluntary recall with the companies directly. Issuing a new regulation is difficult ― it draws on a lot of agency resources, involves a long public comment period and must meet other legal requirements ― and injunctions require a lot of proof, fast.

Now convinced that high-powered magnet spheres were an immediate, and unfixable, threat, but electing not to prove its case with an injunction, the CPSC decided to write to individual retailers ― places like Brookstone and Amazon ― to tell them the products they were selling were dangerous. It was a bold but rare decision.

While such letters do not actually require a retailer to do anything, it is an atypical company that fails to take immediate action as a result, both because businesses see no reason to jeopardize children’s lives and because failing to take corrective action in the face of a direct government warning might raise the risk of future lawsuits. Magnets started disappearing from store shelves. Then, the CPSC tried to negotiate voluntary recalls with 13 of the most prominent players in the industry. One by one, the major U.S. companies selling high-powered magnet balls all took the deal and pulled out of the market. But there were holdouts: Buckyballs and Zen Magnets.

For Zucker and Qu, the process was infuriating: Magnet balls had been kneecapped without the agency offering any proof that a compromise was impossible. Surely some solution could be reached, Qu believed. “Nobody around me thought magnets should be harder to obtain than guns or cars.”

But for Scott Wolfson, a former spokesman for the CPSC, with lives on the line the agency had to act fast. “[Magnets are] a serious hazard that was known and there was an increasing number of incidents, and we sought to take the swiftest action possible to mitigate risks to stop any other child or tween from going to the emergency room and having their chest opened up to have magnets removed,” Wolfson said. “It’s a child safety issue. It’s not an issue about the business community.”

Things escalated quickly. In July 2012, the CPSC sued Zucker’s company. In August, it sued Zen Magnets. These were the agency’s first lawsuits in 11 years, and it was difficult to remember one the agency had ever lost. In September 2012, the agency also decided to move ahead on the regulatory side, issuing a notice of a proposed regulation that would effectively prevent the sale of small magnets more than a fraction as powerful as those already being sold. The rule would essentially ban Zen Magnets and Buckyballs, as the world knew them, forever. This legal onslaught was unprecedented for the agency.

“Only the most extreme and aggravated cases have litigation or rule-making,” said Charles Samuels, chairman of the consumer product safety practice at the law firm Mintz Levin. “In this case you have both.”

The agency had chosen to bring the intense pressure of litigation against the only corporate holdouts while also going after future product lines.

“The flip side of it is that frankly it’s hard to look at the total commission involvement without having the feeling that they wanted to wipe out this product category and that was their determination from the beginning,” Samuels said.

By then, some doubt had even started to surface among the commissioners. Nancy Nord, a George W. Bush-nominated former CPSC commissioner who left the agency in late 2013 and has become a vocal critic of its aggressiveness toward magnet spheres, said the commission’s tactics may have reflected that the decisions were about more than just safety and were also a value judgment about whether society really needs what the companies were selling.

“In their view, they were also dealing with an adult desk toy, for Pete’s sake. How necessary is that in our modern world? How do you balance that utility?” Nord said. But one person’s frivolity can be another’s deep passion, and, Nord wonders, why is a federal agency making that call? “Maybe the federal government isn’t the right entity to be making those decisions. Maybe the marketplace is better.”

As he faced total corporate collapse, Zucker punched back. He started a cheeky campaign called Save Our Balls (and later, United We Ball) and targeted the CPSC’s commissioners personally with a full-page ad in The Washington Post. He released caricatures of them, published their phone numbers, and challenged Wolfson, the agency spokesman at the time, to debates and arm-wrestling matches. Media coverage swirled, and the narrative of government overreach started to gain traction. Zucker was featured on the Fox Business Network and “Nightline” ― HuffPost too. He was on “CBS This Morning.” Rush Limbaugh gave him a shoutout.

Tenenbaum, who was chair of the CPSC at the time, said in an interview that the pushback didn’t sway her. “You look at stories of children behind the data,” she said by phone from South Carolina, where she now practices law. “They have life-altering colostomies, near-death experiences, and at least one death. That is a substantial product hazard.”

Nor did the commission budge. In December 2012, Zucker threw in the towel and dissolved his company. (Zucker’s company that sold Buckyballs was called Maxfield & Oberton.) But instead of declaring victory, the CPSC added Zucker to the lawsuit as an individual, arguing that a company should not be allowed to simply walk away when millions of its products remain in homes. But it also exposed Zucker, personally, to nearly $57 million in liability. This new legal strategy caught the attention of some powerful business interests like the U.S. Chamber of Commerce, which feared that one core reason corporations exist ― to limit personal liability ― was suddenly at risk. While the legal arguments were novel, an administrative law judge went along with the argument. One small-government group, Cause of Action, sued the CPSC on Zucker’s behalf in late 2013, arguing that the agency had maliciously targeted Zucker because he had the gall to speak out against it (which the agency denied).

Meanwhile, Qu went on his own small-bore irreverence offensive after getting sued. He started selling his magnets as only a Denver native could: in marijuana dispensaries, where sales could be restricted to adults. He took out a billboard advertisement and spoke with anyone who would listen. He turned up the snark on the warnings he put on his magnets: “OMFG READ ME,” said one. “The grumpy CPSC is about to BAN magnet spheres in the US because they are an ingestion hazard. They don’t trust that you are capable of understanding and following warnings. Prove them wrong or we all can’t have nice magnets.”

He also started organizing his customers and fans, hoping to stop the proposed regulation before it could become final. The CPSC received more public comments on the regulation ― on both sides of the issue ― than almost any other proposed rule in its history. And Qu found a local lawyer, David Japha, who was willing to work with a client whose only income stream was in regulatory crosshairs.

By the middle of 2014, as administrative lawsuits persisted and the CPSC inched toward a regulatory ban, the anti-regulatory ferment Zucker had invited for almost two years became too crazy, and expensive, for him to handle. A self-described “lifelong Democrat,” Zucker was overwhelmed. “I ended up at the Koch brothers’ annual fundraising convention as an opening speaker, sitting next to Mitch McConnell. Before and after the speech, I kept thinking, ‘What the fuck? I was a guy who wanted to sell a fun desk toy. How did it lead to this?’ I asked myself that question a lot.” Zucker settled with the CPSC, setting aside $375,000 to cover a recall and shutting his doors. At least one product liability suit from a severely injured child still lingers.

With Zucker gone, Qu became the sole heir to the cause.

Qu looks on as a worker prepares his super-strong magnets for destruction.
Qu looks on as a worker prepares his super-strong magnets for destruction.
Jeremy Kutner

To prove that its proposed regulation to ban high-powered magnets should actually be adopted, the CPSC had to show that the costs of such an act justified the benefits. So it tried to calculate them. The balls had caused 2,138 injuries from 2009 to 2012, at an estimated cost of $28.6 million in medical expenses. Taking them off the market would mean $6 million in lost profits for the balls’ proprietors, regulators projected. Action, the agency said, was clearly justified.

But the CPSC was at a loss for determining what the societal cost would be of removing the magnets from stores. What is the joy of playing with pointless magnets really worth, anyway? “We have no information … on the amount of utility that would be lost from a magnet rule,” the agency wrote in support of the final regulation. And if consumer love for the magnet balls turned out to be “faddish,” love of magnets would quickly fade.

If the regulation went through, Qu would be unable to import any new magnets, on top of dealing with the original lawsuit the agency had filed against his company, which would force him to stop selling the magnets he already had and give refunds. In the months before the final vote on the regulation, “I was already in the mindset that none of this is going to work out, that I should put it behind me” and end the business, Qu said. Things were dark. “The world isn’t a fairy tale. We were in negative money, running off a credit line, off saved income.” Qu went to China to develop even tinier, far weaker magnets he hoped would satisfy the CPSC, but they could not hold together for the elaborate designs he thought magnet buyers needed and wanted. Still, he started selling them.

In 2014, the CPSC’s anti-magnet rule became final. After the vote, then-CPSC Chairman Elliot Kaye spoke about the horrors endured by the family of one young girl who died as a result of ingesting magnets. They had made the trip to the CPSC hearing to watch the rule become final. Then he addressed Qu: “I hope your dreaming will continue and that inspiration will strike again, and that there is a path forward that secures for you that elusive childhood wonder, but in a way that can endure.”

Qu filed an appeal in federal court instead. The odds were long. No CPSC rule had been overturned on appeal in more than 30 years. Other countries took notice, though not the way Qu would have liked. Canada also went after the magnets, issuing its first-ever mandatory consumer product recall on the basis that the magnets were a “danger to human health and safety.” New Zealand and Australia banned them, too.

Soon after the regulation was approved, CPSC’s lawsuit against Zen Magnets rumbled toward a two-and-a-half-week trial.

The agency’s arguments hadn’t changed. The CPSC argued again and again what seemed to it to be obvious: Magnet balls are inherently defective, and allowing the sale of the novelty toys ― even if they are marketed to adults ― was just not that important when balanced against the lives of children, who would never see warnings on a package when they came across loose magnets lying on the floor and inevitably ate them.

The CPSC put forward a string of experts, who stressed the magnets’ dangers and the futility of warnings. Qu chiefly relied on a single expert: Boyd Edwards, a physics professor at Utah State University who had befriended Qu when he contacted Zen Magnets’ customer service to complain about inconsistently sized magnet balls. Edwards was a magnet lover, and had been uploading tutorial videos to YouTube about his elaborate creations, such as a “three-level fractal Sierpinski Tetrahedron” and a hollow cube that he used, inexplicably, to encase a bottle of Kraft reduced fat mayonnaise with olive oil. Edwards told the judge the magnets were important ― teachers used them, and many people drew inspiration from them.

“Like all good science, magnet spheres engage both the analytical and the artistic centers of the brain, echoing Henri Poincaré’s sentiment, ‘The scientist does not study nature because it is useful; he studies it because he delights in it, and he delights in it because it is beautiful. If nature were not beautiful, it would not be worth knowing,’” Edwards wrote in his testimony to the court. (He also told the court that “At a 2013 New Year’s party with family members and friends, I used a PowerPoint presentation to teach partygoers about the Platonic solids, and taught them how to use Zen magnets to build an icosahedron.”)

As Qu waited for a decision, his company was falling apart. He’d had to lay off all his employees except Sigurdson, and he’d moved the Zen Magnets headquarters from an office and small warehouse to a bedroom in his house.

Then things got even worse for Qu’s business. Just before one of the other magnet companies had settled with the CPSC back in 2014, he’d bought up its entire stock of magnets, which he intended to sell. But then in 2015 the Department of Justice filed a separate suit against Qu and Zen Magnets, saying the purchase of the magnet stock violated the law and flouted the spirit of the regulator’s agreement. A federal judge agreed, later approving a $5.5 million penalty against Qu and ordering him to destroy the magnets. Qu was broke, so he reached a deal with DOJ to pay only $10,000.

It was that order that led Qu to find the metal treatment plant on the outskirts of Denver this April to roast his hundreds of thousands of now-illicit magnets. Not one to pass up a chance for spectacle, Qu had convinced the plant’s manager to custom-design a furnace door with see-through windows to allow for filming and, hopefully, another viral video. That April day, Qu upped the ante further, piloting a drone past amused workers and a decidedly unamused CPSC observer to capture the magnet destruction from the air.

“I am taking nothing away from this except video and scrap metal,” Qu said.

“Nobody around me thought magnets should be harder to obtain than guns or cars.”

- Shihan Qu

But despite losing that fight, Qu is winning the bigger battle over high-powered magnet balls.

In March 2016, Judge Dean Metry, the administrative law judge in the CPSC’s mandatory recall lawsuit against Qu, handed Qu a stunning win. Though magnets are dangerous when swallowed, the judge said, magnets aren’t defective just because they act like magnets and stick together. Or as the judge put it: “[T]he attractiveness of the [magnets] to each other is the sine qua non of their essence. Without the ability to attract each other, the product is worthless.”

Importantly, the judge also found the magnets did have utility, even if only to spark interest in science, and said warnings about them did what they were supposed to do.

Going even further, the judge found that the estimated several hundred swallowing incidents per year ― the most the CPSC could claim to show, and a number that included all brands of magnets, not just Zen Magnets ― was “insignificant” compared to the millions of magnets sold, especially where there was little evidence linking any particular injury to Zen Magnets in particular.

The CPSC was floored. The agency filed an appeal a month later, charging that the judge “misconstrued, misapplied, and misunderstood the law and regulations.” (In a quirk of the administrative process, the appeal will be decided by none other than the CPSC’s commissioners themselves, most of whom already voted in favor of the separate regulation to rid the market of the magnets entirely, a turn of events that leads some to see a conflict of interest, something the majority of the commissioners deny.)

More bad news for the agency came later that year. Two federal appellate judges ― including Neil Gorsuch, whom Trump would soon pluck off the U.S. Court of Appeals for the 10th Circuit to serve on the highest court in the land ― vacated the regulation prohibiting the sale of Zen Magnets. It was the CPSC’s first such loss in more than 30 years.

The problem, as the court saw it, came down to the data. The agency had already eviscerated the market for magnets, so how could data from a few years ago show that a rule banning magnet balls was necessary today? Plus, the data on injuries was too unreliable. To figure out just how many people were hurt by magnets, the CPSC had taken a statistical sample of injuries from hospitals around the country, combing through injury “narratives” written by doctors. But because doctors often only write that they extracted “magnets” and not “Zen Magnets” or “magnet balls,” most of the injuries were only “possibly” connected to the product. This, the court ruled, wasn’t good enough. Finally, the agency had given too little thought to how useful magnets really were ― in other words, they needed to take people like Edwards more seriously.

Magnet balls were suddenly legal again. Qu raced to fill orders. He hired staff and moved his office out of the bedroom. “For a while, there was celebration, but it was also kind of surreal,” Qu said. The CPSC was “an unforeseeable goliath. We had been promised by many people there was no way we could succeed. ... Obviously it is not easy to say retrospectively that it was worth it.”

Zen Magnets Operations Manager Eric Sigurdson delivers a eulogy for the high-powered magnets about to be destroyed in an industrial gas furnace as Qu, left, and Qu's girlfriend, Jennifer Gunther, look on.
Zen Magnets Operations Manager Eric Sigurdson delivers a eulogy for the high-powered magnets about to be destroyed in an industrial gas furnace as Qu, left, and Qu's girlfriend, Jennifer Gunther, look on.
Jeremy Kutner

In March of this year, the CPSC commissioners got together to figure out what to do next. Magnets were still dangerous when they were swallowed ― they always had been ― but was compromise possible after all these years of fighting? The mood was starting to shift.

At that public hearing, one of the CPSC commissioners, Joseph Mohorovic, indignantly rejected a proposal that the agency start the fight over again. “I think this is a factor of pure ego. And this agency has taken the thoughtful opinions of the 10th Circuit personally, and we just want to win for winning’s sake,” he said. “It’s an exercise in pure regulatory hubris to ignore that criticism and stitch together the tattered scraps of this rule and run it back up the flagpole.” It was a remarkable change for a commissioner who, when voting in favor of the magnet ban three years earlier, called magnet balls a “quintessential latent hazard.”

The proposal passed, but on party lines ― a change from the anti-magnet unanimity of the past. The current commission consists of three Democrats and two Republicans all nominated by President Barack Obama, a lineup unchanged in the years since the 4-0 vote to adopt the anti-magnet regulation. (Ann Marie Buerkle, a Republican former congresswoman, abstained from the regulation vote because the commissioners themselves would have to serve as appellate judges for any challenge to the lawsuit against Qu, and she thought it would be difficult to be seen as impartial if they were simultaneously voting to ban that same product.)

Following President Trump’s election, Buerkle became the commission’s acting chair, and in July, Trump nominated her for the permanent position and another seven-year term. But the political balance is set to shift soon: The next opening set to come up is that of a Democrat. That could prove decisive as both Buerkle and Mohorovic have made their skepticism known.

Following the vote, the agency started its statistical work again.

For those in favor of banning the magnets, the CPSC’s attempt to rework the regulation isn’t just about clarifying the statistics they used to write the original ban. It’s about proving the regulatory process works. “Industry always fights the data on every single issue. Industry is always looking for a reason why it’s not their product,” said Rachel Weintraub, legislative director of the Consumer Federation of America. “As a society, where do we want to place that burden?”

And Robert Adler, a CPSC commissioner since 2009, fears the future could prove even more dangerous, especially as new retailers swoop in to the now-regulation-free market. “The hazards of this product have not disappeared, and if recent information is correct, the hazard is extremely likely to grow significantly as new firms enter the magnet market,” Adler said at the March hearing.

Wolfson, the former agency spokesman, put it more bluntly: “For anyone to raise doubts about the risk to children is disrespecting families that suffered incredible trauma, seeing children rushed into surgery, children after surgery continuing to be hooked up to different monitors and fed intravenously because their small intestines are so damaged.”

After his long, single-minded fight against the CPSC, Qu wonders if all the time and money might have been better spent on something else ― public awareness campaigns, perhaps, or child-proof packaging. The magnet balls are still magnet balls, and they’re dangerous or they’re not, depending on your perspective.

One thing, though, is clear: Qu may have been the last man standing in the fight against the CPSC, but he’s no longer alone in selling the novelty products. Magnet vendors from overseas have flooded the online market, selling products that appear to be similar and often seem to come with no warnings at all.

Qu's formerly high-powered magnets cool after demagnetizing in an industrial gas furnace.
Qu's formerly high-powered magnets cool after demagnetizing in an industrial gas furnace.
Jeremy Kutner

While CPSC staffers are now back at work trying to figure out if a new, revised regulation to stop future sales of the high-powered magnets is something the agency should one day adopt, the market is once again open. But the lawsuit against Qu to force him to recall his old magnets continues. Following Qu’s March 2016 victory in front of the administrative law judge, the commission filed its appeal.

In early June of this year, Qu, his lawyer and a large group of observers from the CPSC converged on a hearing room in an office tower in Bethesda, Maryland, to hear arguments. No one quite knew what was going to happen. There hadn’t been an appeal like this in decades, and the kinks were still being worked out.

The presentations began. The CPSC said the dangers of magnets were clear to everyone by now, and the law was clear too: “We don’t need a body count” to take action, said the CPSC’s lawyer.

Qu’s lawyer, in response, played a video, called “Childhood Wonder,” that showed Qu constructing sculptures with his magnets.

The hearing ended after two hours. Qu left, unsure of his fate.

But he’s vowed to keep pressing his case ― and selling magnets.

Qu originally thought he would hedge his bets. In February, he helped launch Speks, a new brand of “compliance magnets” that meet the now-vacated CPSC safety standard. They aren’t as strong as Zen Magnets and can’t make the same types of fantastic shapes, but they seem to make people happy. And he has an unexpected new partner in the venture: Craig Zucker. With the help of Zucker’s old contacts, Speks are already appearing in stores across the country, raising the prospects of a lucrative future. (Zucker enthusiastically claims sales are at “close to Buckyballs levels.”) But recently, Qu decided to significantly reduce his role in the arrangement. Speks, he said, was taking too much time away from the thing he really loves: super-strong Zen Magnets.

Qu hopes the magnet era will come roaring back, but whether it is already over remains to be seen. At the June hearing, Qu listened intently, his hands moving restlessly in his lap. But he wasn’t playing with magnets. He was whirling a fidget spinner, the hottest toy of 2017.

Sign up for the HuffPost Must Reads newsletter. Each Sunday, we will bring you the best original reporting, long form writing and breaking news from The Huffington Post and around the web, plus behind-the-scenes looks at how it’s all made. Click here to sign up!

Sign up for the HuffPost Must Reads newsletter. Each Sunday, we will bring you the best original reporting, long form writing and breaking news from The Huffington Post and around the web, plus behind-the-scenes looks at how it’s all made. Click here to sign up!

Before You Go

Popular in the Community