

Inside the botched recall of a dangerous toy

Tribune staff reporter

Inside a gray government cubicle littered with colorful construction toys, Jonathan Midgett played with pieces from a Magnetix set, one of the year's hottest sellers.

Midgett connected and disconnected them as a child would. Remembering that day, the self-described "toy scientist" at the U.S. Consumer Product Safety Commission says he could feel the powerful attraction and repulsion of the embedded magnets. He quickly understood why the toy was so popular.

To a child, the magnets behave like they're alive.

Midgett knew they could also be deadly.

He could see that it wouldn't take much for the tiny magnets to break loose, the way they had several weeks earlier in the suburban Seattle home of the Sweet family.

Twenty-month-old Kenny Sweet Jr. died on Thanksgiving Day 2005 after swallowing loose magnets from his older brother's broken Magnetix toys. They connected inside Kenny's intestines, strangling his bowels.

Parents and caregivers had warned the government of that very danger, but the safety commission failed to act.

In the weeks after Kenny's death, the alarm was finally sounding inside the agency's ranks. "I thought it was a defective product," Midgett said, "and should be recalled."

What followed was neither decisive nor swift, but an illustration of how weakly most children's products are regulated in America.

The commission did not sweep Magnetix off store shelves. It did what the law requires: The commission first accommodated the toy's maker, negotiating the wording of the news release meant to warn parents. The resulting voluntary recall was so confusing that consumers had no way of knowing whether they were buying a dangerous toy.

The federal government's influence was even weaker during the next step, when new manufacturing standards were written in an attempt to ensure that such toys couldn't harm children. At that point, regulators became just another voice in a debate controlled by the toymakers themselves.

This flawed system put many children at grave risk. In all, more than two dozen kids suffered life-threatening intestinal injuries after swallowing magnetic toy pieces. At least 15 of those followed Kenny's death.

After months of inquiries from the Tribune, the Consumer Product Safety Commission in April expanded its recall of Magnetix and admitted it knew of at least 1,500 cases of the toys shedding loose magnets. The new recall covers another 4 million boxes — potentially hazardous toys that were allowed on the market for more than a year because the original recall was botched.

But the second recall has proved equally confusing. The Tribune as recently as Saturday bought Magnetix toys that should have been removed from shelves.

And over the weekend, some major retailers froze sales of Magnetix building sets, responding to the Tribune's investigation.

Weighing every wordIt was around Christmas 2005 when Jonathan Midgett first recommended that Magnetix be recalled. Had the agency's top managers done so, the alert could have warned thousands of families to the potential danger of toys given during the holidays.

The Booke family in Oak Harbor, Wash., thought Magnetix would be perfect for 4-year-old Kyle.

His grandmother had carefully considered what to get him that year. When she asked Kyle's mother about Magnetix, his mom responded enthusiastically. Sure, she said, her son would love them. And on Christmas the adults watched when Kyle opened his Magnetix with glee.

As Kyle was playing with his new toys, federal regulators began examining whether Magnetix were dangerous. The staff of the Consumer Product Safety Commission, or CPSC, first met formally to discuss the possibility of a recall more than two months after Midgett's recommendation.

Kenny Sweet's death framed the discussion. One of Midgett's colleagues noted that Kenny was younger than the toy's recommended minimum age of 3, Midgett recalled. Why did such a young child have access to the magnets, and why didn't the child's parents see him swallow them?

Parents and older siblings aren't expecting magnets to fall out, Midgett answered, so they're not looking for them. The tiny magnets can get lost in carpeting, where others miss them but younger children find them.

At the end of the meeting, "the vote was 'yes, it's a defective product, yes, we'll proceed with a recall,' " said Midgett, whose doctoral work focused on human development.

But the CPSC couldn't simply force a recall. The agency has to go through a lengthy court process to do so. Instead the safety commission tries to persuade companies to recall items voluntarily.

Federal law gives companies significant control over any information the CPSC releases about a product, including recall alerts.

In fact, the agency declined in a written statement to answer most of the Tribune's questions about Magnetix, citing a federal law that in effect protects companies from bad publicity.

With few exceptions, the agency has to notify a manufacturer before it says anything negative about a brand-name product. If manufacturers don't like what the CPSC plans to disclose, they can take the agency to federal court.

"Half of my day is negotiating press releases," Catherine Cumberland, a senior officer in the CPSC division that oversees recalls, told manufacturers at a trade show last year. "Many times we're negotiating every single word of a press release."

While the agency hammered out an agreement with the maker of Magnetix in March last year, four more children were treated in hospitals for Magnetix injuries. Kyle Booke was one of them.

Those Magnetix his grandmother bought him for Christmas broke open. The 4-year-old swallowed some of the magnets, which tore through his bowels, spilling deadly bacteria from the boy's waste into his abdomen.

That triggered such a massive infection that doctors at a Seattle hospital didn't fully close the wound after repairing the holes. Instead a vacuum sucked infected material out of the boy's abdomen as he healed.

For three weeks, his mother lived at the hospital.

"I was scared every day," Mechelle Booke recalled. "His body was completely swollen. He didn't even look like himself. There were tubes sticking out of him everywhere."

Kyle, who seemed to be recovering, returned home, but a few days later he was vomiting again.

Doctors readmitted the child. That's when his mother spotted the news on a hospital TV: The CPSC was recalling 3.8 million Magnetix toys.

The recall came on March 31, 2006, four months after Kenny Sweet's death. The manufacturer already had raised the minimum recommended age for the toy to 6.

Still, the toy would remain on store shelves and in homes. More children would get hurt.

Confusion in storesThe recall should have sent a clear message to parents about which toys were safe to buy. But it did not.

Mega Brands, which bought Magnetix-maker Rose Art in July 2005, told federal regulators during recall negotiations that it began improving Magnetix toys with more glue and factory inspections in late December 2005, shortly after its executives learned of Kenny Sweet's death.

Because Mega Brands assured the CPSC that stores were selling only the improved versions, the government and the toymaker told consumers that all Magnetix toys on store shelves at the time weren't covered by the recall.

The CPSC, however, did not perform tests to determine whether the improvements made the toy safe. "We take the company at their word until we prove otherwise," Julie Vallese, a CPSC spokeswoman, explained in an interview.

This made for a confusing recall because the Magnetix boxes had no markings to let consumers know the items being sold were different from the defective versions.

Alan Schoem, former head of enforcement for the CPSC who left in September 2004, said the agency's alert on the toy seemed like a "non-recall recall."

"Usually there's a way of distinguishing the new product on a store shelf," Schoem explained. When he oversaw the division, "If you couldn't differentiate one from the other, we would take the position that you had to recall everything because you couldn't tell which was good and which was bad."

Even retailers were perplexed. The Tribune bought a recalled version of Magnetix from Best Buy online two months after the recall. Kelly Groehler, a Best Buy spokeswoman, initially said the toy hadn't been formally recalled.

Mega Brands fed that confusion. In a news release announcing the recall, the company said, "There is no required action for retailers."

But some retailers, including Best Buy's online store, still had the older versions of the toys in their warehouses. When the Tribune explained to Best Buy that selling such a recalled toy violated Illinois law, Groehler said, "This is not representative of how we like to do business."

The chain no longer sells Magnetix, she added.

Asked why Mega Brands hadn't told Best Buy to pull the recalled version from its shelves, Mega Brands consultant Alex Radmanovich was incredulous. "How many retailers are there in the United States? It would be a massive job to track it all down," he said.

Last summer, Mega Brands executives told Wall Street analysts that they received only 12,000 requests for replacement toys in the initial recall's first four months, typically the period when most customers respond. That's a tiny sliver of the 3.8 million toys sold before that recall.

The company told the Tribune its engineers have continued to tweak the design of the toy: reinforcing the welding, using a more impact-resistant plastic and adding a lip to prevent magnets from slipping out.

Mega Brands also included a safety bulletin to parents inside boxes and added a 11/2- by 1/2-inch label. "CAUTION," the label reads, "Do not ingest or inhale magnets. Attraction of magnets in the body may cause serious injury and require immediate medical care."

Yet the threat continues because old versions remain in people's homes and on some store shelves. Last summer, for instance, a Gurnee boy, D.J. Hyman, had to undergo surgery for life-threatening intestinal injuries after swallowing Magnetix magnets.

The toy's dangers have even spawned a blog, "Magnets Can Kill." Its author, Shawn Thornsberry, whose youngest son attended a day care once run by Kenny Sweet's mom, was so troubled by the toddler's death that she became an amateur quality-control cop.

Filming her own children playing with a variety of Magnetix toys, she has documented numerous cases of them failing. In the latest incident, she said, magnets fell out of a Sir Lancelot Magna-Man action figure she bought in mid-February.

Two of her children noticed that a magnet fell out of the neck of the action figure within minutes of opening the package.

Fighting for changeOwen Howman, a 6-year-old Ohio boy, lay in a hospital bed in Akron recovering from intestinal surgery. Loose Magnetix magnets had pinched the 1st grader's intestines and cut holes in his bowels.

He had survived, but he was in pain. His mother, Ange Erickson, remembers how frightening those days at the hospital were last fall. Owen screamed about "hot fire" every time he had to go to the bathroom.

He quickly tired of the Popsicles and Gatorade at mealtimes and longed for solid food. "He watched every food commercial on TV," Erickson said. "That broke your heart."

As Owen's family worried about the health of their boy, the government and manufacturers were engaged in another set of extended meetings that seemed to be going nowhere.

With the recall in place, the next task was to prevent additional injuries by setting new standards for making toys with magnets.

At this vital juncture, federal law reduced regulators to being only bit players.

Amendments passed during the Reagan administration bar the CPSC from issuing mandatory safety rules unless it can prove that voluntary ones won't cut the risk of injury or that most manufacturers aren't following the voluntary measures.

The result: The loudest voices in rewriting safety rules for toys belong to the toymakers themselves.

Their largest trade group, the Toy Industry Association, controls the process of revising voluntary toy safety standards. Joan Lawrence, a trade group vice president, heads the toy safety standards committee and controls its agenda.

Others involved in the process included the trade group's attorney, who had negotiated the initial Magnetix recall for Mega Brands, and several executives from Mattel.

That toy giant recalled millions of boxes of Polly Pocket dolls last year after 170 complaints about loose magnets and three reported cases of children suffering serious intestinal injuries.

People seeking to toughen the standards — consumer advocates, physicians, even government regulators — must plead their case to the makers of these products.

Those seeking changes in magnetic toys included CPSC scientist Midgett, blogger Thornsberry and Nancy Cowles, executive director of Kids In Danger, a Chicago-based non-profit founded by two University of Chicago professors after a son died when a recalled portable crib collapsed around his neck in 1998.

At every step, the three faced a dilemma. The harder they pushed for tougher safety rules amid opposition from toymakers, the longer it would take to get any changes. Because voluntary safety guidelines are built on consensus, resistance from manufacturers can hold up new standards for years.

A Tribune reporter received permission to listen to a series of conference calls as the debate raged among manufacturers, consumer advocates and government staff. Toymakers argued that they should be allowed to sell toys that break, shedding powerful magnets, as long as their boxes included a warning about intestinal injuries. The manufacturers also pushed for tests so weak that Magnetix toys prone to breaking would pass.

Midgett and others pushed back. "It's not OK to market a product that drops insidious little hazards in the shag carpeting all over the house," Midgett told the toymakers.

Ultimately, after months of haggling, the toymakers heeded some of the concerns of Midgett and the consumer advocates. The final standard specifies that manufacturers must test toys in a way that mimics play. If magnets fall out, the toy fails the standard.

But the testing is subjective; toymakers and the private labs they hire get to decide how many times to attach and detach magnetic pieces. There is no minimum.

And there is a loophole. The new standard does not require a warning on magnetic toys containing pieces too big for a child to swallow. Parents wouldn't know that the magnets inside these toys represent a hidden danger.

Midgett and the consumer advocates on the standards group compromised. Even with a new standard, they worry whether children will still be vulnerable.

"It's that tension of us trying to make the safety standard as strong as possible and them trying to make it as weak as possible," Cowles said.

Other children's advocates also were concerned.

The proposed standard raised alarms at the American Academy of Pediatrics.

The academy, which represents 60,000 pediatricians, urged the standards group to prohibit the sale of all toys with magnetic pieces small enough to be swallowed. Under that rule, which the toymakers rejected, Magnetix, other magnetic building sets and some Polly Pocket doll toys wouldn't be allowed.

Faced with the same standoff as Midgett and the consumer advocates, the pediatricians group agreed to withdraw its negative vote as long as the committee vowed to revisit the standard within a year.

"The AAP does not want the standard, even given its weaknesses, to be delayed, resulting in more children being killed or injured," the pediatricians wrote.

The CPSC's Midgett worries that the subjective tests allowed under the new standard won't catch all toys likely to shed magnets during play. To weed out toys likely to break, Midgett said, his colleagues have invented a testing contraption that repeatedly attaches and detaches magnetic toy pieces.

He hopes the machine, still a prototype, will yield a standardized test that can predict which toys will break and which ones won't.

"The question is whether or not the industry will go along with it," Midgett said. Until then, he added, the new standard "is better than nothing."

CPSC spokeswoman Vallese defended the agency's record on Magnetix by stating that it is "dedicating significant resources to address this emerging hazard, and has brought it to the attention of the safety community around the world."

The new safety standards are expected to go into effect in coming weeks.

A new recall, still flawedMagnetix toys can still pose a danger.

In February, Magnetix magnets ripped holes in the intestines of Tegan Leisy, a 3-year-old Colorado boy. Doctors had to remove about 8 inches of the child's intestines.

Tegan's 5-year-old brother received four sets of Magnetix as gifts last year. All the sets were purchased after the March 2006 recall, according to Paul Komyatte, an attorney for the family.

The Leisys allege that some of the Magnetix toys were the old versions that shouldn't have been sold after the recall, while others were a newer version, court records show. Magnets fell out of both, according to Komyatte.

The CPSC now acknowledges the lingering danger. Last month, after the Tribune questioned officials about the initial recall, the agency expanded it to cover another 4 million boxes of Magnetix toys.

This time the CPSC told consumers what to look for to determine which versions are safe: boxes labeled for ages 6 and older that carry a tiny caution label about the risk of internal injuries from swallowed magnets.

But the government sent another mixed message. In its recall alert, the agency told consumers that Mega Brands had assured safety regulators that all Magnetix building sets on store shelves were the newest, improved versions.

"These products are not included in the recall," the CPSC said.

The agency made these assurances despite the fact that its own investigators found older, potentially hazardous versions of the toys on store shelves the day before the CPSC announcement, Vallese said. But deleting that paragraph from the recall alert would have required further negotiation with Mega Brands, she added, and the agency didn't want to wait.

Mega Brands' letter to retailers further clouded the matter.

"Magnetix products currently at retail are NOT affected by this program," the letter said. "… This effort is focused on old products in the household."

The agency, however, strongly disputes that view. After learning what Mega Brands had told retailers, the CPSC bypassed the company and e-mailed retailers directly. It asked them to make sure all Magnetix boxes being sold included the caution label about internal injuries.

Still, that message was lost on many stores, and the recall failed to accomplish its central goal: keeping potentially dangerous toys out of consumers' homes.

After these announcements, the Tribune was able to buy the recalled versions at nearly every store it visited, including national chains and online merchants.

One box the Tribune purchased last month at a Niles Wal-Mart was the oldest version of the toy, the kind the company made before Magnetix killed Kenny Sweet.

Copyright © 2015, Chicago Tribune