The Cochran Firm Legal Blog

Last week, a consumer advocacy group caused a minor panic among holiday shoppers by declaring that one of the "must-have" gifts of the season was toxic and violated federal safety standards. Zhu Zhu Pets hamsters, cat toys rebranded and accessorized for children, were selling out as parents rushed to get them for the Christmas season, and were being resold for up to four times their original retail value. Many who bought the toys were shocked and frightened when a consumer group, GoodGuide, declared that one variety, "Mr. Squiggles," was a dangerous product containing higher-than-allowed levels of the heavy metal antimony. The consumer advocacy group has since retracted its statement. And the Consumer Product Safety Commission (CPSC) has issued a statement confirming that "the toy does not violate the very protective antimony standard that applies to all toys in the United States." But does this statement put the question to rest?

In response to GoodGuide's statement, a spokesman for Zhu Zhu's manufacturer, Cepia, said, "They accused us falsely of having high levels of antimony and tin in Mr. Squiggles by using a methodology that is not used by any federal standards." GoodGuide, for its part, stated in its apology, "while we accurately reported the chemical levels in the toys that we measured using our testing method, we should not have compared our results to federal standards." What are the testing methods used and what are we to believe about the toxicity level of Mr. Squiggles?

The current federal standard is based on a soluble test, but GoodGuide issued its initial statement based on the results of an X-Ray Fluorescence (XRF) tester. To conduct a soluble test, a sample is taken from the toy, dissolved in acid, then tested spectroscopically. XRF testing shines x-rays at a sample and measures the characteristic emissions of lead, antimony, and other heavy metals. Although Cepia is right in saying that XRF is not currently used by any federal standard, it would probably be overstating the case to call GoodGuide's statement "false." In conducting a comparison between soluble testing and XRF, the CPSC "found generally good agreement" between the two methods, according to a report issued in August 2009. If the test showed that Mr. Squiggles contained antimony, it is likely that he did. How much antimony is another question, since federal standards and conversions for XRF testing have not yet been established.

Toy industry advocates commonly rail against the use of XRF for what they claim are "false positives," but it has been acknowledged that soluble tests can give inaccurately low readings. Some propose that federal standards should be modified to incorporate both testing methods.

Does the CPSC statement prove the toy is safe? Not exactly. On Monday morning, the CPSC said that it would look into the issue and perform tests, but the statement on whether the toy violated federal standards came too quickly for any testing to be performed (one of the limits of soluble testing is that getting results can take days). Instead, the CPSC examined the toy and found that because it did not have painted surfaces, it did not violate new federal standards aimed at painted toys, then looked at third-party testing. Hopefully, the CPSC is performing promised tests and will issue a definitive statement shortly.

Although Zhu Zhu Pets are apparently mostly harmless, the Christmas season is a time to be onscious of dangerous products that may impact your children. If you or a loved one has been hurt by a dangerous product, the product liability lawyers at The Cochran Firm can help. Please contact us today for a free case evaluation.