Competition and Consumer Act 2010 - Consumer Protection Notice No. 5 of 2012 - Imposition of Permanent Ban on Small, High Powered Magnets

This legislative instrument imposes a permanent ban on a specific class of consumer goods containing small, high powered magnets. The ban is not framed by brand, industry or sales channel. It is framed by the physical characteristics of the magnetic objects and the way the goods are marketed or supplied for use.

The banned goods are separable or loose magnetic objects supplied in multiples of two or more where three conditions are met. First, at least two of the magnetic objects must each be able to fit entirely, in any orientation, into the small parts cylinder referred to in AS/NZS ISO 8124.1:2010. Second, at least two of those magnetic objects must each have a magnetic flux index greater than 50 (kG)2 mm2. Third, the magnetic objects must be marketed by the supplier as, or supplied for use as, a toy, game or puzzle, a construction or modelling kit, or jewellery to be worn in or around the mouth or nose.

The examples built into the notice are important. The toy, game or puzzle category includes, but is not limited to, an adult desk toy, an educational toy or game, and a toy, game or puzzle for mental stimulation or stress relief. So a business cannot assume a product is outside the ban just because it is sold to adults rather than children.

The notice is made under section 114(1) of the Australian Consumer Law and applies to consumer goods of the kind described in the instrument. That consumer goods point matters. The instrument itself says the ban is subject to the definition of consumer goods in section 2 of the Australian Consumer Law.

In practical terms, businesses are in scope when they supply products likely to be used for personal, domestic or household purposes and those products meet the magnet and marketing criteria in the notice. This can include manufacturers, importers, wholesalers, retailers, online sellers and businesses that relabel or market products under their own name.

The clearest example of goods usually outside the ban is given in the interpretation section for construction or modelling kits. A construction or modelling kit containing small high powered magnets that is not used, or likely to be used, for personal, domestic or household use will not be subject to the permanent ban. That does not create a broad exemption for every business-use product. It simply reflects that the notice only applies to consumer goods as defined by the Australian Consumer Law.

If a product is sold into both consumer and non-consumer channels, or could realistically end up in home use, a business should be careful before treating it as outside the ban. The instrument does not provide a detailed test for mixed-use products, so businesses should check the product's likely use, customer base and marketing position before relying on a non-consumer argument.

There are two technical trigger points and one marketing or use trigger point.

The first technical trigger point is size. The notice adopts the small parts cylinder from AS/NZS ISO 8124.1:2010. It explains that this apparatus is designed to identify parts small enough to pose an ingestion or inhalation hazard for children under 3 years of age. The test described in the notice is straightforward: place the test object, without compressing it and in any orientation, into the cylinder. If the object fits entirely within the cylinder, it fails the test.

The second technical trigger point is magnetic strength. Each of at least two magnetic objects must have a magnetic flux index greater than 50 (kG)2 mm2. The notice also states that 50 (kG)2 mm2 is equivalent to 0.5 T2 m2. This measure is determined under clause 5.31 of AS/NZS 8124.1:2010.

The third trigger point is how the goods are marketed or supplied for use. Even if the magnets are not labelled as children's toys, the ban can still apply if they are marketed as or supplied for use as a toy, game or puzzle, including adult desk toys and stress-relief items, or as a construction or modelling kit, or as jewellery to be worn in or around the mouth or nose.

Because the notice requires at least two magnetic objects to meet the size and flux criteria, businesses should assess the product as supplied, not just a single component in isolation. Sets, kits and multi-piece products are the obvious risk area.

The technical wording in this notice is central to compliance, so businesses should not rely on general impressions such as whether a magnet seems small or strong.

Small part: the notice does not use the phrase small part as a standalone legal test. Instead, it uses the small parts cylinder from AS/NZS ISO 8124.1:2010. A magnetic object is caught by the size limb if it can fit entirely into that cylinder, in any orientation and without being compressed. The notice explains that this apparatus is designed to identify parts that pose an ingestion or inhalation hazard for children under 3 years of age.

Magnetic flux index: the threshold is greater than 50 (kG)2 mm2. The notice states this is equivalent to 0.5 T2 m2 and says the measure is determined under clause 5.31 of AS/NZS 8124.1:2010. It also notes a wording adjustment in clause 5.31.3, replacing “kG 2 mm 2” with “(kG) 2 mm 2”.

Consumer goods: the ban only applies to consumer goods within the meaning adopted by the Australian Consumer Law. This is especially relevant for construction or modelling kits, because the notice expressly says a kit not used, or likely to be used, for personal, domestic or household use is not subject to the ban.

Marketed by the supplier as, or supplied for use as: this wording means the product's presentation and intended use are both relevant. Packaging, product titles, website descriptions, category placement and instructions can all matter when deciding whether a product falls within one of the listed uses.

If your product falls within the class of goods described in the notice, it must not be supplied as a consumer good. The instrument itself is a permanent ban, so the practical obligation is to stop supply of covered goods and avoid bringing them into the consumer market.

For many businesses, compliance starts before sale. Product teams should review technical specifications for magnet size and magnetic flux index. Procurement teams should identify whether products are supplied in sets or multiples. Sales and marketing teams should review whether the product is presented as a toy, game, puzzle, construction or modelling kit, or jewellery for the mouth or nose.

Online sellers should pay particular attention to listing titles, category tags and promotional wording. A product described as an adult desk toy, stress-relief puzzle or educational magnetic game may fall squarely within the wording of the notice if the technical criteria are also met.

Importers and distributors should not assume overseas classifications will match the Australian position. The notice uses Australian legal concepts and a specific Australian/New Zealand standard reference. If the product is intended for Australian consumers, the local test is what matters.

The notice also warns that goods subject to it and which fail to comply may be subject to compulsory recall. That makes early checking important, because the cost of removing stock after supply can be much higher than screening products before import, listing or distribution.

Because the notice turns partly on how goods are marketed or supplied for use, businesses should review more than just the physical product. The same magnet set may be treated differently depending on how it is presented to consumers.

Useful documents and conduct to check include product specifications, supplier descriptions, packaging artwork, instruction sheets, website copy, marketplace listings, catalogue entries and internal product categorisation. If a product is placed in toy, puzzle, novelty or educational sections, that may support the view that it is marketed as or supplied for use as one of the listed categories.

For construction or modelling kits, businesses should also review the intended customer group and likely end use. If the product is genuinely not used, or likely to be used, for personal, domestic or household purposes, that point should be supported by the way the product is sold and described. If the same item is also promoted for home hobby use, the position becomes harder to maintain.

Where technical testing is needed, businesses should make sure they are using the standard and measurement approach referred to in the notice. The instrument gives the legal threshold, but it does not provide a substitute for proper technical assessment.

This instrument is listed as in force on the Federal Register of Legislation. It is identified as F2012L02171 and dated 14 November 2012 on the register page.

The notice itself states that the permanent ban comes into force on the day after the notice is registered on the Federal Register of Legislative Instruments. Businesses relying on this page should still confirm the current register status and any later legislative developments before making final compliance decisions.

This page explains the instrument at a practical level, but businesses should verify a few points against the legislation and their own products before acting.

First, confirm the goods are consumer goods and not goods outside the personal, domestic or household sphere. Second, confirm whether the magnets are loose or separable and supplied in multiples of two or more. Third, confirm whether at least two magnets fit entirely into the small parts cylinder. Fourth, confirm whether at least two magnets exceed the magnetic flux index threshold. Fifth, confirm whether the product is marketed as or supplied for one of the listed uses.

If any of those points are uncertain, especially the technical testing or the likely use of a construction or modelling kit, get a careful product assessment before supply. The notice is narrow in wording but strict in effect for products that fall within it.