Star Networks USA, LLC; Complaint, 76006-76011 [2012-30828]
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Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Notices
should be submitted by January 25,
2013.
ADDRESSES: To ensure that comments on
the information collection are received,
the OMB recommends that written
comments be faxed to the Office of
Information and Regulatory Affairs,
OMB, Attn: CPSC Desk Officer, FAX:
202–395–6974, or emailed to
oira_submission@omb.eop.gov. All
comments should be identified by
Docket No. CPSC–2012–0058. In
addition, written comments also should
be submitted at https://
www.regulations.gov, under Docket No.
CPSC–2012–0058, or by mail/hand
delivery/courier (for paper, disk, or CD–
ROM submissions), preferably in five
copies, to: Office of the Secretary, U.S.
Consumer Product Safety Commission,
Room 820, 4330 East West Highway,
Bethesda, MD 20814; telephone (301)
504–7923. For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Robert H. Squibb, U.S. Consumer
Product Safety Commission, 4330 East
West Highway, Bethesda, MD 20814;
telephone: 301–504–7923 or by email to
rsquibb@cpsc.gov.
SUPPLEMENTARY INFORMATION: In the
Federal Register of October 4, 2012, and
October 17, 2012 (77 FR 60683, 77 FR
63800), the Consumer Product Safety
Commission published a notice in
accordance with provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35) to announce the
agency’s intention to seek extension of
approval of the collection of information
required in the Safety Standard for
Walk-Behind Power Lawn Mowers (16
CFR Part 1205). Three comments were
received in response to that notice. Two
commenters questioned the need to
collect any information. One commenter
stated that lawn mowers should not be
imported from China and Korea. This
comment is outside the scope of the
proposed collection of information
which concerns only issues related to
the collection of information. The Safety
Standard for Walk-Behind Power Lawn
Mowers establishes performance and
labeling requirements for mowers to
reduce unreasonable risks of injury
resulting from accidental contact with
the moving blades of mowers.
Certification regulations implementing
the standard require manufacturers,
importers, and private labelers of
mowers subject to the standard to test
mowers for compliance with the
standard and to maintain records of that
testing. The records of testing and other
information required by the certification
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regulations allow the Commission to
determine that walk-behind power
mowers subject to the standard comply
with its requirements. This information
also enables the Commission to obtain
corrective actions if mowers fail to
comply with the standard in a manner
that creates a substantial risk of injury
to the public.
We estimate that about 34 firms are
subject to the testing and recordkeeping
requirements of the certification
regulations. We estimate further that the
annual testing and recordkeeping
burden imposed by the regulations on
each of these firms on average is
approximately 390 hours. Thus, the
total annual burden imposed by the
certification regulations on all
manufacturers and importers of walkbehind power mowers is about 13,260
hours (34 firms x 390 hours).
In addition, manufacturers are
expected to spend an additional hour,
per production day, to collect the
information for labeling. Accordingly,
an additional 130 hours per firm are
added to the total burden. For the 34
firms involved, the total estimated
burden related to labeling is 4,420
hours. Aggregate annual burden hours
related to testing, recordkeeping, and
labeling are estimated to be 520 hours
per firm and 17,680 hours for the
industry.
The hourly wage for the time required
to perform the required testing and
recordkeeping is approximately $61.75
(Bureau of Labor Statistics: total
compensation for management,
professional, and related workers in
goods-producing private industries:
https://www.bls.gov/ncs), and the hourly
wage for the time required to maintain
the labeling requirements is
approximately $27.64 (Bureau of Labor
Statistics, total compensation for all
sales and office workers in goodsproducing, private industries: https://
www.bls.gov/ncs). The annualized total
cost to the industry for annual testing
and recordkeeping is estimated to be
$818,805, based on 13,260 hours x
$61.75. The annualized cost burden
related to labeling is estimated to be
$122,169, based on 4,420 hours x
$27.64. Aggregate burden costs related
to testing, recordkeeping, and labeling
are estimated to be $940,972 for the
industry.
Dated: December 20, 2012.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2012–30992 Filed 12–21–12; 4:15 pm]
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CONSUMER PRODUCT SAFETY
COMMISSION
[CPSC Docket No. 13–2]
Star Networks USA, LLC; Complaint
Consumer Product Safety
Commission
ACTION: Publication of a Complaint
under the Consumer Product Safety Act.
AGENCY:
Under provisions of its Rules
of Practice for Adjudicative Proceeding
(16 CFR part 1025), the Consumer
Product Safety Commission must
publish in the Federal Register
Complaints which it issues. Published
below is a Complaint: In the Matter of
Star Networks USA, LLC.1
SUPPLEMENTARY INFORMATION: The text of
the Complaint appears below.
SUMMARY:
Dated: December 18, 2012.
Todd A. Stevenson,
Secretary.
UNITED STATES OF AMERICA
CONSUMER PRODUCT SAFETY
COMMISSION
In the Matter of STAR NETWORKS
USA, LLC, Respondent
CPSC DOCKET NO. 13–2
COMPLAINT
Nature of Proceedings
1. This is an administrative
enforcement proceeding pursuant to
Section 15 of the Consumer Product
Safety Act (‘‘CPSA’’), as amended, 15
U.S.C. § 2064, for public notification
and remedial action to protect the
public from the substantial risk of injury
presented by aggregated masses of highpowered, small rare earth magnets
known as Magnicube Magnet Balls
(‘‘Magnicube Spheres’’) and Magnet
Cubes (‘‘Magnicube Cubes’’)
(collectively the ‘‘Subject Products’’),
imported and distributed by STAR
NETWORKS USA, LLC (‘‘Star’’ or
‘‘Respondent’’).
2. This proceeding is governed by the
Rules of Practice for Adjudicative
Proceedings before the Consumer
Product Safety Commission
(‘‘Commission’’), 16 C.F.R. part 1025.
Jurisdiction
3. This proceeding is instituted
pursuant to the authority contained in
Sections 15(c), (d), and (f) of the CPSA,
15 U.S.C. § 2064 (c), (d), and (f).
1 Chairman Inez M. Tenenbaum and
Commissioner Robert S. Adler voted to authorize
the Complaint. Commissioner Nancy A. Nord voted
to not authorize the Complaint.
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Parties
4. Complaint Counsel is the staff of
the Division of Compliance within the
Office of the General Counsel of the
Commission (‘‘Complaint Counsel’’).
The Commission is an independent
federal regulatory agency established
pursuant to Section 4 of the CPSA, 15
U.S.C. § 2053.
5. Upon information and belief, Star
is a New Jersey corporation with its
principal place of business located at 26
Commerce Road, Suite B, Fairfield, New
Jersey, 07004.
6. Respondent is an importer and
distributor of the Subject Products.
7. As an importer and distributor of
the Subject Products, Respondent is a
‘‘manufacturer’’ and ‘‘distributor’’ of a
‘‘consumer product’’ that is ‘‘distributed
in commerce,’’ as those terms are
defined in CPSA sections 3(a)(5),(7), (8),
and (11) of the CPSA, 15 U.S.C.
§§ 2052(a)(5),(7), (8), and (11).
The Consumer Product
8. Respondent imported and
distributed the Subject Products in U.S.
commerce and offered them for sale to
consumers for their personal use in or
around a permanent or temporary
household or residence, a school, and in
recreation or otherwise.
9. Upon information and belief, the
Subject Products consist of small,
individual magnets that are packaged as
aggregated masses in different sized
containers holding 125, 216, 250, 343 or
1,027 small magnets, ranging in size
from approximately 5.0 mm to 6.0 mm,
with a variety of coatings, and a flux
index greater than 50.
10. Upon information and belief, the
flux index of the Magnicube Spheres
ranges from 435.1 to 876.5 kg2mm.2
11. Upon information and belief, the
flux index of the Magnicube Cubes
ranges from 441.9 to 496.4 kg2mm.2
12. Upon information and belief,
Magnicubes Spheres were introduced
into U.S. commerce sometime after
August 2010.
13. Upon information and belief,
Magnicubes Cubes were introduced into
U.S. commerce sometime after August
2010.
14. Upon information and belief, the
Subject Products are manufactured by
Dongyang Huale Electronics, LTD,
Hengdian Industrial Area, Dongyang
Zheijiang, China.
15. Upon information and belief, the
Subject Products are sold in velvet-lined
boxes or foam-lined tins.
16. Upon information and belief, the
Subject Products range in retail price
from approximately $19.95 to $79.95.
17. Upon information and belief, more
than 21,000 sets of Magnicube Spheres
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have been sold to consumers in the
United States.
18. Upon information and belief, more
than 480 sets of Magnicube Cubes have
been sold to consumers in the United
States.
19. Upon information and belief,
approximately 17 mixed sets of 125
Magnicube Spheres and 125 Magnicube
Cubes marketed as the Magnicube Duo
Edition have been sold to consumers in
the United States.
COUNT I
The Subject Products are Substantial
Product Hazards Under Section 15(a)(2)
of the CPSA, 15 U.S.C. § 2064(a)(2),
Because They Contain Product Defects
That Create a Substantial Risk of Injury
to the Public
The Subject Products are Defective
Because Their Instructions, Packaging,
and Warnings Are Inadequate
20. Paragraphs 1 through 19 are
hereby realleged and incorporated by
reference as though fully set forth
herein.
21. A defect can occur in a product’s
contents, construction, finish,
packaging, warnings and/or
instructions. 16 C.F.R. § 1115.4
22. A defect can occur when
reasonably foreseeable consumer use or
misuse, based in part on lack of
adequate instructions and safety
warnings, could result in injury, even
where there are no reports of injury. 16
C.F.R. § 1115.4
23. Upon information and belief, Star
offered the Subject Products for sale
sometime after August 2010 through
December 2012 on its direct-sales Web
site, www.magnicube.com.
24. Upon information and belief,
sometime after August 2010 through
December 2012, Star’s U.S. Direct sales
Web site contained the following
warning regarding the Subject Products:
‘‘Keep Away from All Children! This
product is NOT intended to be inhaled
or swallowed, magnets should not be
put in those nose or mouth. Magnets
that are inhaled or swallowed may stick
to intestines, which may lead to serious
injury or death. Immediate medical
attention is required if magnets are
inhaled or swallowed. Recommended
age 14+.’’
25. Upon information and belief, from
sometime after August 2010 through
December 2012, the ‘‘Safety Notice’’
page of Star’s Direct sales Web site
contained the following warning
regarding the Subject Products:
‘‘Magnicube products are NOT toys for
children[.] Recommended age 14+.
Magnicube Magnet Balls and Magnet
Cubes are not manufactured,
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distributed, promoted, labeled, or
intended for children. Ingestion
Hazard—This product represents an
ingestion Hazard, DO NOT ingest
magnets. Magnets that are inhaled or
swallowed may stick to intestines,
which may lead to serious injury or
death. Immediate medical attention is
required if magnets are inhaled or
swallowed.’’
26. Upon information and belief, Star
offered the Subject Products for sale
from November 2011 through July 2012,
on Amazon.com, Inc.’s Web site
www.amazon.com.
27. Upon information and belief, from
November 2011 through July 2012 Star’s
product listing for the Subject Products
on the Amazon.com, Inc.’s Web site
contained the following warning:
WARNING: CHOKING HAZARD—
WARNING: KEEP AWAY FROM ALL
CHILDREN. Do not put in mouth or
nose. This product contains small
magnets. Swallowed magnets can stick
together across intestines causing
serious infections and death. Seek
immediate medical attention if magnets
or swallowed or inhaled. CHOKING
HAZARD—This toy is a marble. Not for
children under 3 yrs. CHOKING
HAZARD—This toy is a small ball. Not
for children under 3 yrs. CHOKING
HAZARD—Small parts. Not for children
under 3 yrs. CHOKING HAZARD—Toy
contains a small ball. Not for children
under 3 yrs.’’
28. Upon information and belief, on
or about June 14, 2012, Star authorized
online discount retailer Groupon, Inc. to
issue an internet offer for the sale of the
Subject Products on Groupon, Inc.’s
Web site, www.groupon.com.
29. Upon information and belief, the
Groupon internet offer contained the
following warning: ‘‘Recommended for
ages 14 and up. Keep out of reach of
children.’’
30. Upon information and belief, sets
of the Subject Products are currently
sold in tins with the following warning
printed on a sticker on the underside of
the tin:
WARNING: Keep Away From All
Children! This product is NOT intended
to be inhaled or swallowed, magnets
[sic] should not be put in nose or mouth.
Magnets that are inhaled or swallowed
may stick to intestines, which may lead
to serious injury or death. Immediate
medical attention is required if magents
are inhaled or swallowed.
Recommended age 14+.’’
31. Upon information and belief, sets
of the Subject Products are currently
sold in boxes with following warning
printed on the underside of a cardboard
sleeve that wraps around the box:
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WARNING: Keep Away From All
Children! This product is NOT intended
to be inhaled or swallowed, magnets
[sic] should not be put in nose or mouth.
Magnets that are inhaled or swallowed
may stick to intestines, which may lead
to serious injury or death. Immediate
medical attention is required if magents
are inhaled or swallowed.
Recommended age 14+.’’
32. Upon information and belief, the
Subject Products are packaged without
any instructions.
33. Before and after the Subject
Products were introduced into
commerce sometime after August 2010,
many children under the age of 14 have
ingested products (the ‘‘Ingested
Products’’) that are almost identical in
form, substance, and content to the
Subject Products.
34. Upon information and belief, the
Ingested Products are marketed and
used in substantially similar ways to the
Subject Products.
35. Upon information and belief, on
or about January 28, 2010, a 9-year-old
boy used high-powered, small,
spherically-shaped magnets almost
identical in form, substance, and
content to the Subject Products to
mimic tongue and lip piercings, and
accidentally ingested seven magnets. He
was treated at an emergency room.
36. Upon information and belief, on
or about September 5, 2010, a 12-yearold girl accidentally swallowed two
high-powered, small, sphericallyshaped magnets almost identical in
form, substance, and content to the
Subject Products. She sought medical
treatment at a hospital, including x-rays
and monitoring for infection and
damage to her gastrointestinal tract.
37. Upon information and belief, on
or about December 23, 2010, a 3-yearold girl ingested eight high-powered,
small, spherically-shaped magnets
almost identical in form, substance, and
content to the Subject Products that she
found on a refrigerator in her home. She
required surgery to remove the magnets.
The magnets caused intestinal and
stomach perforations, and had also
become embedded in the girl’s trachea
and esophagus.
38. Upon information and belief, on
or about January 6, 2011, a 4-year-old
boy suffered intestinal perforations after
ingesting three high-powered, small,
spherically-shaped magnets almost
identical in form, substance, and
content to the Subject Products that he
thought were chocolate candy because
they looked like the decorations on his
mother’s wedding cake.
39. By November 2011, the
Commission was aware of
approximately 22 reports of ingestions
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of high-powered, small, sphericallyshaped magnets almost identical in
form, substance, and content to the
Subject Products.
40. On November 11, 2011, the
Commission issued a public safety alert
warning the public of the dangers of the
ingestion of rare earth magnets like the
Subject Products.
41. Ingestion incidents, however,
continue to occur.
42. Since the safety alert, the
Commission has received dozens of
reports of children ingesting highpowered, small, spherically-shaped
magnets that are almost identical in
form, substance, and content to the
Subject Products, but may be
manufactured and/or sold by firms other
than the Respondent.
43. Upon information and belief, on
or about January 17, 2012, a 10-year-old
girl accidentally ingested two highpowered, small, spherically-shaped
magnets almost identical in form,
substance, and content to the Subject
Products after using them to mimic a
tongue piercing. The magnets became
embedded in her large intestine, and she
underwent x-rays, CT scans, endoscopy,
and an appendectomy to remove them.
The girl’s father had purchased the
magnets for her at the local mall.
44. All warnings on the Subject
Products and/or on the Web sites where
the Subject Products are or were offered
for sale are inadequate and defective
because they do not and cannot
effectively communicate to consumers,
including parents and caregivers, the
hazard associated with the Subject
Products and magnet ingestions.
45. Because the warnings on the
Subject Products and/or on the Web
sites where the Subject Products are or
were offered for sale are inadequate and
defective, parents will continue to give
children the Subject Products or allow
children to have access to the Subject
Products.
46. Parents and caregivers are
unlikely to appreciate the hazard
associated with the product because the
product warnings refer to the product as
a ‘‘marble’’ and as a ‘‘small ball.’’ This
product description suggests that the
potential health risk posed by the
Subject Products is from choking, rather
than intestinal perforations or other
gastrointestinal injuries that can result if
more than one magnet ball is
swallowed.
47. Children cannot and do not
appreciate the hazard, and it is
foreseeable that they will mouth the
items, swallow them, or, in the case of
adolescents and teens, use them to
mimic body piercings. These uses can
and do result in injury.
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48. All warnings on the packaging of
the Subject Products are inadequate and
defective because the font-size of the
warnings hinders legibility and may
discourage consumers from reading the
warning message, making it less likely
that consumers will review the
warnings on the packaging prior to
foreseeable uses of the Subject Products.
These uses can and do result in injury.
49. All warnings on the packaging
and/or carrying cases of the Subject
Products are inadequate and defective
because the placement of the warnings
only on the underside of the packaging
and/or carrying case renders the
warnings inconspicuous such that
consumers likely will not review the
warnings prior to foreseeable uses of the
Subject Products. These uses can and do
result in injury.
50. All warnings on the Subject
Products that are packaged in boxes are
inadequate and defective because the
cardboard sleeve on which the warnings
are written is not necessary for use of
the Subject Products and is often
discarded. Because the cardboard sleeve
is unnecessary and is often discarded,
consumers likely will not review the
warnings on the packaging prior to
foreseeable uses of the Subject Products.
These uses can and do result in injury.
51. All warnings on the Subject
Products are inadequate and defective
because once the Subject Products are
removed from the packaging and/or the
carrying case prior to foreseeable uses of
the Subject Products, the magnets
themselves display no warnings, and
the small size of the individual magnets
precludes the addition of warnings.
These uses can and do result in injury.
52. All warnings on the Subject
Products are inadequate and defective
because the magnets are shared and
used among various consumers,
including children, after the packaging
is discarded; thus, many consumers of
the Subject Products will have no
exposure to any warnings prior to using
the Subject Products. These uses can
and do result in injury.
53. All warnings displayed on the
carrying cases, if any, are inadequate
and defective because consumers are
unlikely to disassemble configurations
made with the Subject Products after
each use, many of which are elaborate
and time-consuming to create, to return
the Subject Products to the carrying case
or to put the Subject Products out of the
reach of children.
54. The effectiveness of the warnings
on the Subject Products is further
diminished by the advertising and
marketing of the Subject Products.
55. Upon information and belief, as
late as May 2012, Star was aware that
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the Subject Products were displayed
with other toys on the Amazon.com,
Inc.’s Web site.
56. Upon information and belief, as of
November 2012, Respondent advertised
the Subject Products on its direct sale
Web site as a ‘‘toy,’’ encouraging
consumers to ‘‘get out of your daze with
your new toy.’’
57. Upon information and belief, the
Subject Products are described on Star’s
direct sales Web site as a magnetic
puzzle, a 3d puzzle, and magnetic
puzzle gift items that are typically
considered playthings for children
under the age of 14.
58. The advertising and marketing of
the Subject Products conflict with the
claimed 14+ age grade label on the
Subject Products.
59. Because the advertising and
marketing of the Subject Products
conflict with the age label, the
effectiveness of the age label is
diminished.
60. The advertising and marketing of
Subject Products conflict with the stated
warnings on the Subject Products.
61. Because the advertising and
marketing conflict with the stated
warnings, the effectiveness of the
warnings is diminished.
62. No warnings or instructions could
be devised that would effectively
communicate the hazard in a way that
would be understood and heeded by
consumers and would reduce the
incidences of magnet ingestions.
63. Because of the lack of adequate
instructions and safety warnings, a
substantial risk of injury occurs as a
result of the foreseeable use and misuse
of the Subject Products.
The Subject Products Are Defective
Because the Risk of Injury Occurs as a
Result of Its Operation and Use and the
Failure of the Subject Products to
Operate as Intended
1. A design defect can be present if
the risk of injury occurs as a result of
the operation or use of the product or
a failure of the product to operate as
intended. 16 C.F.R. § 1115.4.
2. The Subject Products contain a
design defect because they present a risk
of injury as a result of their operation
and/or use.
3. Upon information and belief, the
Subject Products have been advertised
and marketed by the Respondent to both
children and adults.
4. As a direct result of such marketing
and promotion, the Subject Products
have been, and are currently used by,
both children and adults.
5. The risk of injury occurs as a result
of the use of the Subject Products by
adults, who give the Subject Products to
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children or allow children to have
access to the Subject Products.
6. The risk of injury occurs as a result
of the foreseeable use and/or misuse of
the Subject Products by children.
7. The Subject Products contain a
design defect because they fail to
operate as intended and present a
substantial risk of injury to the public.
8. Upon information and belief,
Respondent contends that the Subject
Products are manipulatives that provide
stress relief and other benefits to adults
only.
9. The Subject Products are intensely
appealing to children due to their tactile
features, their small size, and their
highly reflective, shiny metallic and
colorful coatings.
10. Certain sets of the Subject
Products come in bright color
combinations which are likely to add to
the perception that the magnets are
intended to appeal to children because
they offer creative value as puzzles,
models, or art by combining magnetism
and color.
11. The Subject Products are also
appealing to children because they are
smooth, unique, and make a soft
snapping sound as they are
manipulated.
12. The Subject Products also move in
unexpected, incongruous ways as the
poles on the magnets move to align
properly, which can evoke a degree of
awe and amusement among children
enticing them to play with the Subject
Products.
13. Despite the Respondent’s current
age label and asserted use of the Subject
Products, they do not operate as
intended because they are intensely
appealing to and are often played with
by children.
14. This defective design of the
Subject Products poses a risk of injury
because parents and caregivers buy the
Subject Products for children and/or
allow children to play with the Subject
Products.
The Type of the Risk of Injury Renders
the Subject Products Defective
15. The risk of injury associated with
a product may render the product
defective. 16 C.F.R. § 1115.4.
16. Upon information and belief, the
Subject Products have low utility to
consumers.
17. Upon information and belief, the
Subject Products are not necessary to
consumers.
18. The nature of the risk of injury
includes serious, life-threatening, and
long-term health conditions that can
result when magnets attract to each
other through intestinal walls, causing
harmful tissue compression that can
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lead to perforations, fistulas, and other
gastrointestinal injuries.
19. Children, a vulnerable population
protected by the CPSA, are exposed to
risk of injury by the Subject Products.
20. The risk of injury associated with
the ingestion of the Subject Products is
neither obvious nor intuitive.
21. Warnings and instructions cannot
adequately mitigate the risk of injury
associated with ingesting the Subject
Products.
22. Children mouthing and ingesting
the Subject Products is foreseeable.
23. Children using the Subject
Products for body art, including
mimicking tongue piercings, is
foreseeable.
24. The type of the risk of injury
renders the Subject Products defective.
The Subject Products Create a
Substantial Risk of Injury to the Public
25. The Subject Products pose a risk
of magnet ingestion by children below
the age of 14, who may, consistent with
developmentally appropriate behavior,
place a single magnet or numerous
magnets in their mouth.
26. The risk of ingestion also exists
when adolescents and teens use the
Subject Products to mimic piercings of
the mouth, tongue, and cheek and
accidentally swallow the magnets.
27. If two or more of the magnets are
ingested and the magnetic forces of the
magnets pull them together, the magnets
can pinch or trap the intestinal walls or
other digestive tissue between them,
resulting in acute and long-term health
consequences. Magnets that attract
through the walls of the intestines result
in progressive tissue injury, beginning
with local inflammation and ulceration,
progressing to tissue death, then
perforation or fistula formation. Such
conditions can lead to infection, sepsis,
and death.
28. Ingestion of more than one magnet
often requires medical intervention,
including endoscopic or surgical
procedures.
29. Because the initial symptoms of
injury from magnet ingestion are
nonspecific and may include nausea,
vomiting, and abdominal pain,
caretakers, parents, and medical
professionals may easily mistake these
nonspecific symptoms for other
common gastrointestinal upsets, and
erroneously believe that medical
treatment is not immediately required,
thereby delaying potentially critical
treatment.
30. Medical professionals may not be
aware of the dangers posed by ingestion
of the Subject Products and the
corresponding need for immediate
evaluation and monitoring. A delay of
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surgical intervention or other medical
treatment due to the presentation of
nonspecific symptoms and/or a lack of
awareness by medical personnel of the
dangers posed by multiple magnet
ingestion can exacerbate life-threatening
internal injuries.
31. Magnets that become affixed
through the gastrointestinal walls and
are not surgically removed may result in
intestinal perforations which can lead to
necrosis, the formation of fistulas, or
ultimately, perforation of the bowel and
leakage of toxic bowel contents into the
abdominal cavity. These conditions can
lead to serious injury and possibly even
death.
32. Endoscopic and surgical
procedures may also be complicated in
cases of multiple magnet ingestion due
to the attraction of the magnets to the
metal equipment used to retrieve the
magnets.
33. Children who undergo surgery to
remove multiple magnets from their
gastrointestinal tract are also at risk for
long-term health consequences,
including intestinal scarring, nutritional
deficiencies due to loss of portions of
the bowel, and, in the case of girls,
fertility problems.
34. The Subject Products contain
defects in packaging, warnings, and
instructions, that create a substantial
risk of injury to the public.
35. The Subject Products contain
defects in design that pose a substantial
risk of injury.
36. The type of the risk of injury
posed by the Subject Products creates a
substantial risk of injury.
37. Therefore, because the Subject
Products are defective and create a
substantial risk of injury, the Subject
Products present a substantial product
hazard within the meaning of Section
15(a)(2) of the CPSA, 15 U.S.C.
§ 2064(a)(2).
COUNT II
tkelley on DSK3SPTVN1PROD with
The Subject Products Are Substantial
Product Hazards Under Section 15(a)(1)
of the CPSA, 15 U.S.C. § 2064(a)(1)
38. Paragraphs 1 through 100 are
hereby realleged and incorporated by
reference as though fully set forth
herein.
39. Upon information and belief, each
of the Subject Products is an object
designed and/or manufactured as a
plaything for children under 14 years of
age, and, therefore, each of the Subject
Products that was imported and/or
otherwise distributed in commerce after
August 16, 2009, is a ‘‘toy’’ as that term
is defined in ASTM International
Standard F963–08, Standard Consumer
Safety Specification for Toy Safety,
VerDate Mar<15>2010
06:31 Dec 22, 2012
Jkt 229001
section 3.1.72 and its most recent
version, ASTM 963–11 section 3.1.81
(‘‘the Toy Standard’’).
40. As toys, and as toys intended for
use by children under 14 years of age as
addressed in the Toy Standard, the
Subject Products that were imported
and/or otherwise distributed in
commerce after August 16, 2009, were
and are covered by the Toy Standard.
41. Pursuant to the Toy Standard, a
magnet that has a flux index greater
than 50 and that is a small object as
determined by the Toy Standard is a
‘‘hazardous magnet.’’
42. The Toy Standard prohibits toys
from containing a loose as-received
hazardous magnet.
43. The Subject Products that were
imported and/or otherwise distributed
in commerce after August 16, 2009
consist of and contain loose as-received
hazardous magnets. As a result, the
Subject Products that were imported
and/or otherwise distributed in
commerce after August 16, 2009 fail to
comply with the Toy Standard.
44. The Subject Products that were
imported and/or otherwise distributed
in commerce after August 16, 2009
create a substantial risk of injury to the
public.
45. Because the Subject Products that
were imported and/or otherwise
distributed in commerce after August
16, 2009 fail to comply with the Toy
Standard and create a substantial risk of
injury to the public, they are substantial
product hazards as the term ‘‘substantial
product hazard’’ is defined in Section
15(a)(1) of the CPSA, 15 U.S.C.
§ 2064(a)(1).
Relief Sought
Wherefore, in the public interest,
Complaint Counsel requests that the
Commission:
A. Determine that the Subject
Products present a ‘‘substantial product
hazard’’ within the meaning of Section
15(a)(2) of the CPSA, 15 U.S.C.
§ 2064(a)(2), and/or presents a
‘‘substantial product hazard’’ within the
meaning of Section 15(a)(1) of the
CPSA, 15 U.S.C. § 2064(a)(1).
B. Determine that extensive and
effective public notification under
Section 15(c) of the CPSA, 15 U.S.C.
§ 2064(c), is required to adequately
protect children from the substantial
product hazard presented by the Subject
Products, and order Respondents under
Section 15(c) of the CPSA, 15 U.S.C.
§ 2064(c) to:
(1) Cease importation and distribution
of the Subject Products;
(2) Notify all persons that transport,
store, distribute or otherwise handle the
Subject Products, or to whom such
PO 00000
Frm 00043
Fmt 4703
Sfmt 4703
product has been transported, sold,
distributed or otherwise handled, to
immediately cease distribution of the
products;
(3) Notify appropriate state and local
public health officials;
(4) Give prompt public notice of the
defects in the Subject Products,
including the incidents and injuries
associated with ingestion including
posting clear and conspicuous notice on
Respondent’s Web site, and providing
notice to any third party Web site on
which Respondent has placed the
Subject Products for sale, and provide
further announcements in languages
other than English and on radio and
television;
(5) Mail notice to each distributor or
retailer of the Subject Products; and
(6) Mail notice to every person to
whom the Subject Products were
delivered or sold;
C. Determine that action under
Section 15(d) of the CPSA, 15 U.S.C.
§ 2064(d), is in the public interest and
additionally order Respondent to:
(1) Refund consumers the purchase
price of the Subject Products;
(2) Make no charge to consumers and
to reimburse consumers for any
reasonable and foreseeable expenses
incurred in availing themselves of any
remedy provided under any
Commission Order issued in this matter,
as provided by Section 15 U.S.C.
§ 2064(e)(1);
(3) Reimburse retailers for expenses in
connection with carrying out any
Commission Order issued in this matter,
including the costs of returns, refunds
and/or replacements, as provided by
Section 15(e)(2) of the CPSA, 15 U.S.C.
§ 2064(e)(2);
(4) Submit a plan satisfactory to the
Commission, within ten (10) days of
service of the Final Order, directing that
actions specified in Paragraphs B(1)
through (6) and C(1) through (3) above
be taken in a timely manner;
(5) To submit monthly reports, in a
format satisfactory to the Commission,
documenting the progress of the
corrective action program;
(6) For a period of five (5) years after
issuance of the Final Order in this
matter, to keep records of its actions
taken to comply with Paragraphs B(1)
through (6) and C(1) through (4) above,
and supply these records to the
Commission for the purpose of
monitoring compliance with the Final
Order;
(7) For a period of five (5) years after
issuance of the Final Order in this
matter, to notify the Commission at least
sixty (60) days prior to any change in its
business (such as incorporation,
dissolution, assignment, sale, or petition
E:\FR\FM\26DEN1.SGM
26DEN1
Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Notices
for bankruptcy) that results in, or is
intended to result in, the emergence of
a successor corporation, going out of
business, or any other change that might
affect compliance obligations under a
Final Order issued by the Commission
in this matter; and
D. Order that Respondent shall take
other and further actions as the
Commission deems necessary to protect
the public health and safety and to
comply with the CPSA.
ISSUED BY ORDER OF THE
COMMISSION:
Dated this 17th day of December, 2012
BY: Kenneth R. Hinson
Executive Director
U.S. Consumer Product Safety
Commission
Bethesda, MD 20814
Tel: (301) 504–7854
Mary B. Murphy, Assistant General
Counsel
Division of Compliance, Office of
General Counsel
U.S. Consumer Product Safety
Commission
Bethesda, MD 20814
Tel: (301) 504–7809
Jennifer Argabright, Trial Attorney
Richa Shyam Dasgupta, Trial Attorney
Leah Wade, Trial Attorney
Complaint Counsel
Division of Compliance
Office of the General Counsel
U.S. Consumer Product Safety
Commission
Bethesda, MD 20814
Tel: (301) 504–7808
CERTIFICATE OF SERVICE
I hereby certify that on December 17,
2012, I served the foregoing Complaint
and List and Summary of Documentary
Evidence upon all parties of record in
these proceedings by mailing, certified
mail, postage prepaid, a copy to each at
their principal place of business, and
emailing a courtesy copy, as follows:
David C. Japha, Esquire
Counsel to Respondent Star Networks
USA, LLC
The Law Offices of David C. Japha, P.C.
950 S. Cherry Street, Ste. 912
Denver, CO 80246
Email: davidjapha@japhalaw.com.
Complaint Counsel for U.S. Consumer
Product Safety Commission
[FR Doc. 2012–30828 Filed 12–21–12; 8:45 am]
BILLING CODE 6355–01–P
tkelley on DSK3SPTVN1PROD with
DEPARTMENT OF DEFENSE
Office of the Secretary
Defense Legal Policy Board; Notice of
Federal Advisory Committee Meeting
AGENCY:
Department of Defense.
VerDate Mar<15>2010
06:31 Dec 22, 2012
Jkt 229001
ACTION:
Notice.
Under the provisions of the
Federal Advisory Committee Act of
1972 (5 U.S.C., Appendix, as amended),
the Government in the Sunshine Act of
1976 (5 U.S.C. 552b, as amended), and
41 CFR 102–3.150, the Department of
Defense announces the following federal
advisory committee meeting of the
Defense Legal Policy Board.
ADDRESSES: Holiday Inn Ballston, 4610
N. Fairfax Drive, Arlington, Virginia
22203.
SUMMARY:
A meeting of the Defense Legal
Policy Board (hereafter referred to as
‘‘the Board’’) will be held on Tuesday,
January 22, 2013. The Public Session
will begin at 9:00 a.m. and end at 4:00
p.m.
FOR FURTHER INFORMATION CONTACT: Mr.
David Gruber, Defense Legal Policy
Board, P.O. Box 3656, Arlington, VA
22203. Email: StaffDirectorDefenseLegal
PolicyBoard@osd.mil. Phone: (703) 696–
5449.
SUPPLEMENTARY INFORMATION: Purpose of
the Meeting: At this meeting, the Board
will deliberate on the July 30, 2012
tasking from the Secretary of Defense to
review certain military justice cases in
combat zones. The Board is interested in
written and oral comments from the
public, including non-governmental
organizations, relevant to this tasking.
The mission of the Board is to advise
the Secretary of Defense on legal and
related legal policy matters within DoD,
the achievement of DoD policy goals
through legislation and regulations, and
other assigned matters.
Agenda: Prior to the Public Session,
the Board will conduct an
Administrative Session starting at 8:30
a.m. and ending at 9:00 a.m. to address
administrative matters. After the Public
Session, the Board will conduct an
Administrative Session starting at 4:00
p.m. and ending at 4:30 p.m. to prepare
for upcoming meetings. Pursuant to 41
CFR 102–3.160, the public may not
attend the Administrative Sessions.
Tentative Agenda (updates available
from the Board’s Staff Director at Staff
DirectorDefenseLegalPolicyBoard
@osd.mil).
• Testimony from representatives of
the Secretaries of the Military
Departments.
• Testimony from a representative of
the Chairman of the Joint Chiefs of Staff.
• Testimony from subject matter
experts on law of armed conflict
violations by U.S. Service members.
• Receipt of public comments.
Availability of Materials for the
Meeting: A copy of the agenda for the
January 22, 2013 meeting and the
DATES:
PO 00000
Frm 00044
Fmt 4703
Sfmt 4703
76011
tasking for the Subcommittee may be
obtained at the meeting or from the
Board’s Staff Director at StaffDirector
DefenseLegalPolicyBoard@osd.mil.
Public’s Accessibility to the Meeting:
Pursuant to 5 U.S.C. 552b and 41 CFR
102–3.140 through 102–3.165, and the
availability of space, part of this meeting
is open to the public. Seating is limited
and is on a first-come basis.
Special Accommodations: Individuals
requiring special accommodations to
access the public meeting should
contact the Staff Director at Staff
DirectorDefenseLegalPolicyBoard@
osd.mil at least five (5) business days
prior to the meeting so that appropriate
arrangements can be made.
Procedures for Providing Public
Comments: Pursuant to 41 CFR 102–
3.105(j) and 102–3.140, and section
10(a)(3) of the Federal Advisory
Committee Act of 1972, the public or
interested organizations may submit
written comments to the Board about its
mission and topics pertaining to this
public session. Written comments must
be received by the Designated Federal
Officer at least five (5) business days
prior to the meeting date so that the
comments may be made available to the
Board for their consideration prior to
the meeting. Written comments should
be submitted via email to the address for
the Designated Federal Officer given in
this notice in the following formats:
Adobe Acrobat, WordPerfect, or
Microsoft Word. Please note that since
the Board operates under the provisions
of the Federal Advisory Committee Act,
as amended, all written comments will
be treated as public documents and will
be made available for public inspection.
If members of the public are interested
in making an oral statement, a written
statement must be submitted as above
along with a request to provide an oral
statement. After reviewing the written
comments, the Chairperson and the
Designated Federal Officer will
determine who of the requesting
persons will be able to make an oral
presentation of their issue during the
open portion of this meeting.
Determination of who will be making an
oral presentation is at the sole discretion
of the Committee Chair and the
Designated Federal Officer and will
depend on time available and relevance
to the Committee’s activities. Five
minutes will be allotted to persons
desiring to make an oral presentation.
Oral presentations by members of the
public will be permitted from 3:00 p.m.
to 4:00 p.m. in front of the Board. The
number of oral presentations to be made
will depend on the number of requests
received from members of the public.
E:\FR\FM\26DEN1.SGM
26DEN1
]]>Agencies
[Federal Register Volume 77, Number 247 (Wednesday, December 26, 2012)]
[Notices]
[Pages 76006-76011]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30828]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 13-2]
Star Networks USA, LLC; Complaint
AGENCY: Consumer Product Safety Commission
ACTION: Publication of a Complaint under the Consumer Product Safety
Act.
-----------------------------------------------------------------------
SUMMARY: Under provisions of its Rules of Practice for Adjudicative
Proceeding (16 CFR part 1025), the Consumer Product Safety Commission
must publish in the Federal Register Complaints which it issues.
Published below is a Complaint: In the Matter of Star Networks USA,
LLC.\1\
---------------------------------------------------------------------------
\1\ Chairman Inez M. Tenenbaum and Commissioner Robert S. Adler
voted to authorize the Complaint. Commissioner Nancy A. Nord voted
to not authorize the Complaint.
---------------------------------------------------------------------------
SUPPLEMENTARY INFORMATION: The text of the Complaint appears below.
Dated: December 18, 2012.
Todd A. Stevenson,
Secretary.
UNITED STATES OF AMERICA
CONSUMER PRODUCT SAFETY COMMISSION
In the Matter of STAR NETWORKS USA, LLC, Respondent
CPSC DOCKET NO. 13-2
COMPLAINT
Nature of Proceedings
1. This is an administrative enforcement proceeding pursuant to
Section 15 of the Consumer Product Safety Act (``CPSA''), as amended,
15 U.S.C. Sec. 2064, for public notification and remedial action to
protect the public from the substantial risk of injury presented by
aggregated masses of high-powered, small rare earth magnets known as
Magnicube Magnet Balls (``Magnicube Spheres'') and Magnet Cubes
(``Magnicube Cubes'') (collectively the ``Subject Products''), imported
and distributed by STAR NETWORKS USA, LLC (``Star'' or ``Respondent'').
2. This proceeding is governed by the Rules of Practice for
Adjudicative Proceedings before the Consumer Product Safety Commission
(``Commission''), 16 C.F.R. part 1025.
Jurisdiction
3. This proceeding is instituted pursuant to the authority
contained in Sections 15(c), (d), and (f) of the CPSA, 15 U.S.C. Sec.
2064 (c), (d), and (f).
[[Page 76007]]
Parties
4. Complaint Counsel is the staff of the Division of Compliance
within the Office of the General Counsel of the Commission (``Complaint
Counsel''). The Commission is an independent federal regulatory agency
established pursuant to Section 4 of the CPSA, 15 U.S.C. Sec. 2053.
5. Upon information and belief, Star is a New Jersey corporation
with its principal place of business located at 26 Commerce Road, Suite
B, Fairfield, New Jersey, 07004.
6. Respondent is an importer and distributor of the Subject
Products.
7. As an importer and distributor of the Subject Products,
Respondent is a ``manufacturer'' and ``distributor'' of a ``consumer
product'' that is ``distributed in commerce,'' as those terms are
defined in CPSA sections 3(a)(5),(7), (8), and (11) of the CPSA, 15
U.S.C. Sec. Sec. 2052(a)(5),(7), (8), and (11).
The Consumer Product
8. Respondent imported and distributed the Subject Products in U.S.
commerce and offered them for sale to consumers for their personal use
in or around a permanent or temporary household or residence, a school,
and in recreation or otherwise.
9. Upon information and belief, the Subject Products consist of
small, individual magnets that are packaged as aggregated masses in
different sized containers holding 125, 216, 250, 343 or 1,027 small
magnets, ranging in size from approximately 5.0 mm to 6.0 mm, with a
variety of coatings, and a flux index greater than 50.
10. Upon information and belief, the flux index of the Magnicube
Spheres ranges from 435.1 to 876.5 kg\2\mm.\2\
11. Upon information and belief, the flux index of the Magnicube
Cubes ranges from 441.9 to 496.4 kg\2\mm.\2\
12. Upon information and belief, Magnicubes Spheres were introduced
into U.S. commerce sometime after August 2010.
13. Upon information and belief, Magnicubes Cubes were introduced
into U.S. commerce sometime after August 2010.
14. Upon information and belief, the Subject Products are
manufactured by Dongyang Huale Electronics, LTD, Hengdian Industrial
Area, Dongyang Zheijiang, China.
15. Upon information and belief, the Subject Products are sold in
velvet-lined boxes or foam-lined tins.
16. Upon information and belief, the Subject Products range in
retail price from approximately $19.95 to $79.95.
17. Upon information and belief, more than 21,000 sets of Magnicube
Spheres have been sold to consumers in the United States.
18. Upon information and belief, more than 480 sets of Magnicube
Cubes have been sold to consumers in the United States.
19. Upon information and belief, approximately 17 mixed sets of 125
Magnicube Spheres and 125 Magnicube Cubes marketed as the Magnicube Duo
Edition have been sold to consumers in the United States.
COUNT I
The Subject Products are Substantial Product Hazards Under Section
15(a)(2) of the CPSA, 15 U.S.C. Sec. 2064(a)(2), Because They Contain
Product Defects That Create a Substantial Risk of Injury to the Public
The Subject Products are Defective Because Their Instructions,
Packaging, and Warnings Are Inadequate
20. Paragraphs 1 through 19 are hereby realleged and incorporated
by reference as though fully set forth herein.
21. A defect can occur in a product's contents, construction,
finish, packaging, warnings and/or instructions. 16 C.F.R. Sec. 1115.4
22. A defect can occur when reasonably foreseeable consumer use or
misuse, based in part on lack of adequate instructions and safety
warnings, could result in injury, even where there are no reports of
injury. 16 C.F.R. Sec. 1115.4
23. Upon information and belief, Star offered the Subject Products
for sale sometime after August 2010 through December 2012 on its
direct-sales Web site, www.magnicube.com.
24. Upon information and belief, sometime after August 2010 through
December 2012, Star's U.S. Direct sales Web site contained the
following warning regarding the Subject Products: ``Keep Away from All
Children! This product is NOT intended to be inhaled or swallowed,
magnets should not be put in those nose or mouth. Magnets that are
inhaled or swallowed may stick to intestines, which may lead to serious
injury or death. Immediate medical attention is required if magnets are
inhaled or swallowed. Recommended age 14+.''
25. Upon information and belief, from sometime after August 2010
through December 2012, the ``Safety Notice'' page of Star's Direct
sales Web site contained the following warning regarding the Subject
Products: ``Magnicube products are NOT toys for children[.] Recommended
age 14+. Magnicube Magnet Balls and Magnet Cubes are not manufactured,
distributed, promoted, labeled, or intended for children. Ingestion
Hazard--This product represents an ingestion Hazard, DO NOT ingest
magnets. Magnets that are inhaled or swallowed may stick to intestines,
which may lead to serious injury or death. Immediate medical attention
is required if magnets are inhaled or swallowed.''
26. Upon information and belief, Star offered the Subject Products
for sale from November 2011 through July 2012, on Amazon.com, Inc.'s
Web site www.amazon.com.
27. Upon information and belief, from November 2011 through July
2012 Star's product listing for the Subject Products on the Amazon.com,
Inc.'s Web site contained the following warning: WARNING: CHOKING
HAZARD--WARNING: KEEP AWAY FROM ALL CHILDREN. Do not put in mouth or
nose. This product contains small magnets. Swallowed magnets can stick
together across intestines causing serious infections and death. Seek
immediate medical attention if magnets or swallowed or inhaled. CHOKING
HAZARD--This toy is a marble. Not for children under 3 yrs. CHOKING
HAZARD--This toy is a small ball. Not for children under 3 yrs. CHOKING
HAZARD--Small parts. Not for children under 3 yrs. CHOKING HAZARD--Toy
contains a small ball. Not for children under 3 yrs.''
28. Upon information and belief, on or about June 14, 2012, Star
authorized online discount retailer Groupon, Inc. to issue an internet
offer for the sale of the Subject Products on Groupon, Inc.'s Web site,
www.groupon.com.
29. Upon information and belief, the Groupon internet offer
contained the following warning: ``Recommended for ages 14 and up. Keep
out of reach of children.''
30. Upon information and belief, sets of the Subject Products are
currently sold in tins with the following warning printed on a sticker
on the underside of the tin:
WARNING: Keep Away From All Children! This product is NOT intended
to be inhaled or swallowed, magnets [sic] should not be put in nose or
mouth. Magnets that are inhaled or swallowed may stick to intestines,
which may lead to serious injury or death. Immediate medical attention
is required if magents are inhaled or swallowed. Recommended age 14+.''
31. Upon information and belief, sets of the Subject Products are
currently sold in boxes with following warning printed on the underside
of a cardboard sleeve that wraps around the box:
[[Page 76008]]
WARNING: Keep Away From All Children! This product is NOT intended
to be inhaled or swallowed, magnets [sic] should not be put in nose or
mouth. Magnets that are inhaled or swallowed may stick to intestines,
which may lead to serious injury or death. Immediate medical attention
is required if magents are inhaled or swallowed. Recommended age 14+.''
32. Upon information and belief, the Subject Products are packaged
without any instructions.
33. Before and after the Subject Products were introduced into
commerce sometime after August 2010, many children under the age of 14
have ingested products (the ``Ingested Products'') that are almost
identical in form, substance, and content to the Subject Products.
34. Upon information and belief, the Ingested Products are marketed
and used in substantially similar ways to the Subject Products.
35. Upon information and belief, on or about January 28, 2010, a 9-
year-old boy used high-powered, small, spherically-shaped magnets
almost identical in form, substance, and content to the Subject
Products to mimic tongue and lip piercings, and accidentally ingested
seven magnets. He was treated at an emergency room.
36. Upon information and belief, on or about September 5, 2010, a
12-year-old girl accidentally swallowed two high-powered, small,
spherically-shaped magnets almost identical in form, substance, and
content to the Subject Products. She sought medical treatment at a
hospital, including x-rays and monitoring for infection and damage to
her gastrointestinal tract.
37. Upon information and belief, on or about December 23, 2010, a
3-year-old girl ingested eight high-powered, small, spherically-shaped
magnets almost identical in form, substance, and content to the Subject
Products that she found on a refrigerator in her home. She required
surgery to remove the magnets. The magnets caused intestinal and
stomach perforations, and had also become embedded in the girl's
trachea and esophagus.
38. Upon information and belief, on or about January 6, 2011, a 4-
year-old boy suffered intestinal perforations after ingesting three
high-powered, small, spherically-shaped magnets almost identical in
form, substance, and content to the Subject Products that he thought
were chocolate candy because they looked like the decorations on his
mother's wedding cake.
39. By November 2011, the Commission was aware of approximately 22
reports of ingestions of high-powered, small, spherically-shaped
magnets almost identical in form, substance, and content to the Subject
Products.
40. On November 11, 2011, the Commission issued a public safety
alert warning the public of the dangers of the ingestion of rare earth
magnets like the Subject Products.
41. Ingestion incidents, however, continue to occur.
42. Since the safety alert, the Commission has received dozens of
reports of children ingesting high-powered, small, spherically-shaped
magnets that are almost identical in form, substance, and content to
the Subject Products, but may be manufactured and/or sold by firms
other than the Respondent.
43. Upon information and belief, on or about January 17, 2012, a
10-year-old girl accidentally ingested two high-powered, small,
spherically-shaped magnets almost identical in form, substance, and
content to the Subject Products after using them to mimic a tongue
piercing. The magnets became embedded in her large intestine, and she
underwent x-rays, CT scans, endoscopy, and an appendectomy to remove
them. The girl's father had purchased the magnets for her at the local
mall.
44. All warnings on the Subject Products and/or on the Web sites
where the Subject Products are or were offered for sale are inadequate
and defective because they do not and cannot effectively communicate to
consumers, including parents and caregivers, the hazard associated with
the Subject Products and magnet ingestions.
45. Because the warnings on the Subject Products and/or on the Web
sites where the Subject Products are or were offered for sale are
inadequate and defective, parents will continue to give children the
Subject Products or allow children to have access to the Subject
Products.
46. Parents and caregivers are unlikely to appreciate the hazard
associated with the product because the product warnings refer to the
product as a ``marble'' and as a ``small ball.'' This product
description suggests that the potential health risk posed by the
Subject Products is from choking, rather than intestinal perforations
or other gastrointestinal injuries that can result if more than one
magnet ball is swallowed.
47. Children cannot and do not appreciate the hazard, and it is
foreseeable that they will mouth the items, swallow them, or, in the
case of adolescents and teens, use them to mimic body piercings. These
uses can and do result in injury.
48. All warnings on the packaging of the Subject Products are
inadequate and defective because the font-size of the warnings hinders
legibility and may discourage consumers from reading the warning
message, making it less likely that consumers will review the warnings
on the packaging prior to foreseeable uses of the Subject Products.
These uses can and do result in injury.
49. All warnings on the packaging and/or carrying cases of the
Subject Products are inadequate and defective because the placement of
the warnings only on the underside of the packaging and/or carrying
case renders the warnings inconspicuous such that consumers likely will
not review the warnings prior to foreseeable uses of the Subject
Products. These uses can and do result in injury.
50. All warnings on the Subject Products that are packaged in boxes
are inadequate and defective because the cardboard sleeve on which the
warnings are written is not necessary for use of the Subject Products
and is often discarded. Because the cardboard sleeve is unnecessary and
is often discarded, consumers likely will not review the warnings on
the packaging prior to foreseeable uses of the Subject Products. These
uses can and do result in injury.
51. All warnings on the Subject Products are inadequate and
defective because once the Subject Products are removed from the
packaging and/or the carrying case prior to foreseeable uses of the
Subject Products, the magnets themselves display no warnings, and the
small size of the individual magnets precludes the addition of
warnings. These uses can and do result in injury.
52. All warnings on the Subject Products are inadequate and
defective because the magnets are shared and used among various
consumers, including children, after the packaging is discarded; thus,
many consumers of the Subject Products will have no exposure to any
warnings prior to using the Subject Products. These uses can and do
result in injury.
53. All warnings displayed on the carrying cases, if any, are
inadequate and defective because consumers are unlikely to disassemble
configurations made with the Subject Products after each use, many of
which are elaborate and time-consuming to create, to return the Subject
Products to the carrying case or to put the Subject Products out of the
reach of children.
54. The effectiveness of the warnings on the Subject Products is
further diminished by the advertising and marketing of the Subject
Products.
55. Upon information and belief, as late as May 2012, Star was
aware that
[[Page 76009]]
the Subject Products were displayed with other toys on the Amazon.com,
Inc.'s Web site.
56. Upon information and belief, as of November 2012, Respondent
advertised the Subject Products on its direct sale Web site as a
``toy,'' encouraging consumers to ``get out of your daze with your new
toy.''
57. Upon information and belief, the Subject Products are described
on Star's direct sales Web site as a magnetic puzzle, a 3d puzzle, and
magnetic puzzle gift items that are typically considered playthings for
children under the age of 14.
58. The advertising and marketing of the Subject Products conflict
with the claimed 14+ age grade label on the Subject Products.
59. Because the advertising and marketing of the Subject Products
conflict with the age label, the effectiveness of the age label is
diminished.
60. The advertising and marketing of Subject Products conflict with
the stated warnings on the Subject Products.
61. Because the advertising and marketing conflict with the stated
warnings, the effectiveness of the warnings is diminished.
62. No warnings or instructions could be devised that would
effectively communicate the hazard in a way that would be understood
and heeded by consumers and would reduce the incidences of magnet
ingestions.
63. Because of the lack of adequate instructions and safety
warnings, a substantial risk of injury occurs as a result of the
foreseeable use and misuse of the Subject Products.
The Subject Products Are Defective Because the Risk of Injury Occurs as
a Result of Its Operation and Use and the Failure of the Subject
Products to Operate as Intended
1. A design defect can be present if the risk of injury occurs as a
result of the operation or use of the product or a failure of the
product to operate as intended. 16 C.F.R. Sec. 1115.4.
2. The Subject Products contain a design defect because they
present a risk of injury as a result of their operation and/or use.
3. Upon information and belief, the Subject Products have been
advertised and marketed by the Respondent to both children and adults.
4. As a direct result of such marketing and promotion, the Subject
Products have been, and are currently used by, both children and
adults.
5. The risk of injury occurs as a result of the use of the Subject
Products by adults, who give the Subject Products to children or allow
children to have access to the Subject Products.
6. The risk of injury occurs as a result of the foreseeable use
and/or misuse of the Subject Products by children.
7. The Subject Products contain a design defect because they fail
to operate as intended and present a substantial risk of injury to the
public.
8. Upon information and belief, Respondent contends that the
Subject Products are manipulatives that provide stress relief and other
benefits to adults only.
9. The Subject Products are intensely appealing to children due to
their tactile features, their small size, and their highly reflective,
shiny metallic and colorful coatings.
10. Certain sets of the Subject Products come in bright color
combinations which are likely to add to the perception that the magnets
are intended to appeal to children because they offer creative value as
puzzles, models, or art by combining magnetism and color.
11. The Subject Products are also appealing to children because
they are smooth, unique, and make a soft snapping sound as they are
manipulated.
12. The Subject Products also move in unexpected, incongruous ways
as the poles on the magnets move to align properly, which can evoke a
degree of awe and amusement among children enticing them to play with
the Subject Products.
13. Despite the Respondent's current age label and asserted use of
the Subject Products, they do not operate as intended because they are
intensely appealing to and are often played with by children.
14. This defective design of the Subject Products poses a risk of
injury because parents and caregivers buy the Subject Products for
children and/or allow children to play with the Subject Products.
The Type of the Risk of Injury Renders the Subject Products Defective
15. The risk of injury associated with a product may render the
product defective. 16 C.F.R. Sec. 1115.4.
16. Upon information and belief, the Subject Products have low
utility to consumers.
17. Upon information and belief, the Subject Products are not
necessary to consumers.
18. The nature of the risk of injury includes serious, life-
threatening, and long-term health conditions that can result when
magnets attract to each other through intestinal walls, causing harmful
tissue compression that can lead to perforations, fistulas, and other
gastrointestinal injuries.
19. Children, a vulnerable population protected by the CPSA, are
exposed to risk of injury by the Subject Products.
20. The risk of injury associated with the ingestion of the Subject
Products is neither obvious nor intuitive.
21. Warnings and instructions cannot adequately mitigate the risk
of injury associated with ingesting the Subject Products.
22. Children mouthing and ingesting the Subject Products is
foreseeable.
23. Children using the Subject Products for body art, including
mimicking tongue piercings, is foreseeable.
24. The type of the risk of injury renders the Subject Products
defective.
The Subject Products Create a Substantial Risk of Injury to the Public
25. The Subject Products pose a risk of magnet ingestion by
children below the age of 14, who may, consistent with developmentally
appropriate behavior, place a single magnet or numerous magnets in
their mouth.
26. The risk of ingestion also exists when adolescents and teens
use the Subject Products to mimic piercings of the mouth, tongue, and
cheek and accidentally swallow the magnets.
27. If two or more of the magnets are ingested and the magnetic
forces of the magnets pull them together, the magnets can pinch or trap
the intestinal walls or other digestive tissue between them, resulting
in acute and long-term health consequences. Magnets that attract
through the walls of the intestines result in progressive tissue
injury, beginning with local inflammation and ulceration, progressing
to tissue death, then perforation or fistula formation. Such conditions
can lead to infection, sepsis, and death.
28. Ingestion of more than one magnet often requires medical
intervention, including endoscopic or surgical procedures.
29. Because the initial symptoms of injury from magnet ingestion
are nonspecific and may include nausea, vomiting, and abdominal pain,
caretakers, parents, and medical professionals may easily mistake these
nonspecific symptoms for other common gastrointestinal upsets, and
erroneously believe that medical treatment is not immediately required,
thereby delaying potentially critical treatment.
30. Medical professionals may not be aware of the dangers posed by
ingestion of the Subject Products and the corresponding need for
immediate evaluation and monitoring. A delay of
[[Page 76010]]
surgical intervention or other medical treatment due to the
presentation of nonspecific symptoms and/or a lack of awareness by
medical personnel of the dangers posed by multiple magnet ingestion can
exacerbate life-threatening internal injuries.
31. Magnets that become affixed through the gastrointestinal walls
and are not surgically removed may result in intestinal perforations
which can lead to necrosis, the formation of fistulas, or ultimately,
perforation of the bowel and leakage of toxic bowel contents into the
abdominal cavity. These conditions can lead to serious injury and
possibly even death.
32. Endoscopic and surgical procedures may also be complicated in
cases of multiple magnet ingestion due to the attraction of the magnets
to the metal equipment used to retrieve the magnets.
33. Children who undergo surgery to remove multiple magnets from
their gastrointestinal tract are also at risk for long-term health
consequences, including intestinal scarring, nutritional deficiencies
due to loss of portions of the bowel, and, in the case of girls,
fertility problems.
34. The Subject Products contain defects in packaging, warnings,
and instructions, that create a substantial risk of injury to the
public.
35. The Subject Products contain defects in design that pose a
substantial risk of injury.
36. The type of the risk of injury posed by the Subject Products
creates a substantial risk of injury.
37. Therefore, because the Subject Products are defective and
create a substantial risk of injury, the Subject Products present a
substantial product hazard within the meaning of Section 15(a)(2) of
the CPSA, 15 U.S.C. Sec. 2064(a)(2).
COUNT II
The Subject Products Are Substantial Product Hazards Under Section
15(a)(1) of the CPSA, 15 U.S.C. Sec. 2064(a)(1)
38. Paragraphs 1 through 100 are hereby realleged and incorporated
by reference as though fully set forth herein.
39. Upon information and belief, each of the Subject Products is an
object designed and/or manufactured as a plaything for children under
14 years of age, and, therefore, each of the Subject Products that was
imported and/or otherwise distributed in commerce after August 16,
2009, is a ``toy'' as that term is defined in ASTM International
Standard F963-08, Standard Consumer Safety Specification for Toy
Safety, section 3.1.72 and its most recent version, ASTM 963-11 section
3.1.81 (``the Toy Standard'').
40. As toys, and as toys intended for use by children under 14
years of age as addressed in the Toy Standard, the Subject Products
that were imported and/or otherwise distributed in commerce after
August 16, 2009, were and are covered by the Toy Standard.
41. Pursuant to the Toy Standard, a magnet that has a flux index
greater than 50 and that is a small object as determined by the Toy
Standard is a ``hazardous magnet.''
42. The Toy Standard prohibits toys from containing a loose as-
received hazardous magnet.
43. The Subject Products that were imported and/or otherwise
distributed in commerce after August 16, 2009 consist of and contain
loose as-received hazardous magnets. As a result, the Subject Products
that were imported and/or otherwise distributed in commerce after
August 16, 2009 fail to comply with the Toy Standard.
44. The Subject Products that were imported and/or otherwise
distributed in commerce after August 16, 2009 create a substantial risk
of injury to the public.
45. Because the Subject Products that were imported and/or
otherwise distributed in commerce after August 16, 2009 fail to comply
with the Toy Standard and create a substantial risk of injury to the
public, they are substantial product hazards as the term ``substantial
product hazard'' is defined in Section 15(a)(1) of the CPSA, 15 U.S.C.
Sec. 2064(a)(1).
Relief Sought
Wherefore, in the public interest, Complaint Counsel requests that
the Commission:
A. Determine that the Subject Products present a ``substantial
product hazard'' within the meaning of Section 15(a)(2) of the CPSA, 15
U.S.C. Sec. 2064(a)(2), and/or presents a ``substantial product
hazard'' within the meaning of Section 15(a)(1) of the CPSA, 15 U.S.C.
Sec. 2064(a)(1).
B. Determine that extensive and effective public notification under
Section 15(c) of the CPSA, 15 U.S.C. Sec. 2064(c), is required to
adequately protect children from the substantial product hazard
presented by the Subject Products, and order Respondents under Section
15(c) of the CPSA, 15 U.S.C. Sec. 2064(c) to:
(1) Cease importation and distribution of the Subject Products;
(2) Notify all persons that transport, store, distribute or
otherwise handle the Subject Products, or to whom such product has been
transported, sold, distributed or otherwise handled, to immediately
cease distribution of the products;
(3) Notify appropriate state and local public health officials;
(4) Give prompt public notice of the defects in the Subject
Products, including the incidents and injuries associated with
ingestion including posting clear and conspicuous notice on
Respondent's Web site, and providing notice to any third party Web site
on which Respondent has placed the Subject Products for sale, and
provide further announcements in languages other than English and on
radio and television;
(5) Mail notice to each distributor or retailer of the Subject
Products; and
(6) Mail notice to every person to whom the Subject Products were
delivered or sold;
C. Determine that action under Section 15(d) of the CPSA, 15 U.S.C.
Sec. 2064(d), is in the public interest and additionally order
Respondent to:
(1) Refund consumers the purchase price of the Subject Products;
(2) Make no charge to consumers and to reimburse consumers for any
reasonable and foreseeable expenses incurred in availing themselves of
any remedy provided under any Commission Order issued in this matter,
as provided by Section 15 U.S.C. Sec. 2064(e)(1);
(3) Reimburse retailers for expenses in connection with carrying
out any Commission Order issued in this matter, including the costs of
returns, refunds and/or replacements, as provided by Section 15(e)(2)
of the CPSA, 15 U.S.C. Sec. 2064(e)(2);
(4) Submit a plan satisfactory to the Commission, within ten (10)
days of service of the Final Order, directing that actions specified in
Paragraphs B(1) through (6) and C(1) through (3) above be taken in a
timely manner;
(5) To submit monthly reports, in a format satisfactory to the
Commission, documenting the progress of the corrective action program;
(6) For a period of five (5) years after issuance of the Final
Order in this matter, to keep records of its actions taken to comply
with Paragraphs B(1) through (6) and C(1) through (4) above, and supply
these records to the Commission for the purpose of monitoring
compliance with the Final Order;
(7) For a period of five (5) years after issuance of the Final
Order in this matter, to notify the Commission at least sixty (60) days
prior to any change in its business (such as incorporation,
dissolution, assignment, sale, or petition
[[Page 76011]]
for bankruptcy) that results in, or is intended to result in, the
emergence of a successor corporation, going out of business, or any
other change that might affect compliance obligations under a Final
Order issued by the Commission in this matter; and
D. Order that Respondent shall take other and further actions as
the Commission deems necessary to protect the public health and safety
and to comply with the CPSA.
ISSUED BY ORDER OF THE COMMISSION:
Dated this 17th day of December, 2012
BY: Kenneth R. Hinson
Executive Director
U.S. Consumer Product Safety Commission
Bethesda, MD 20814
Tel: (301) 504-7854
Mary B. Murphy, Assistant General Counsel
Division of Compliance, Office of General Counsel
U.S. Consumer Product Safety Commission
Bethesda, MD 20814
Tel: (301) 504-7809
Jennifer Argabright, Trial Attorney
Richa Shyam Dasgupta, Trial Attorney
Leah Wade, Trial Attorney
Complaint Counsel
Division of Compliance
Office of the General Counsel
U.S. Consumer Product Safety Commission
Bethesda, MD 20814
Tel: (301) 504-7808
CERTIFICATE OF SERVICE
I hereby certify that on December 17, 2012, I served the foregoing
Complaint and List and Summary of Documentary Evidence upon all parties
of record in these proceedings by mailing, certified mail, postage
prepaid, a copy to each at their principal place of business, and
emailing a courtesy copy, as follows:
David C. Japha, Esquire
Counsel to Respondent Star Networks USA, LLC
The Law Offices of David C. Japha, P.C.
950 S. Cherry Street, Ste. 912
Denver, CO 80246
Email: davidjapha@japhalaw.com.
Complaint Counsel for U.S. Consumer Product Safety Commission
[FR Doc. 2012-30828 Filed 12-21-12; 8:45 am]
BILLING CODE 6355-01-P
