Consumer Goods (Toys Containing Magnets) Safety Standard 2020

The central concept is the “magnetic toy”. The definition has two limbs: the product must be “designed or clearly intended for use in play by a child under 14 years of age”, and it must be “supplied with one or more magnets or magnetic components”. The phrase “designed or clearly intended” imports an objective test based on the product’s appearance, marketing, and packaging. Items that are not obviously playthings for children, such as professional tools or decorative magnets, may fall outside the definition if not clearly intended for play. The definition captures not only traditional toys that include magnets (such as building sets with magnetic rods and balls) but also promotional items, party favours, and educational kits supplied with magnets. The standard applies only to new magnetic toys supplied in trade or commerce; second-hand goods are not covered by this standard (though they may be subject to other ACL actions). The four compliance standards are each adopted “as in force or existing at the time when this instrument commences”. That means the versions are frozen as at 28 August 2020. Any later amendments to those standards do not automatically become part of this instrument; a future legislative amendment would be required to update the references. This freezing is significant because industry practice and technological changes may make the frozen standards outdated over time. The modifications to the standards are detailed in sections 9 to 12. For the Australian/New Zealand Standard and the International Standard, the modifications are largely identical: clause 4.1 is modified by omitting its last two sentences (these sentences relate to general warning statements or additional considerations), and certain subclauses in clause 5.24 (the magnet-specific test methods) have their final sentences omitted. The effect of these omissions is to remove any alternative pathways or interpretive guidance that would otherwise be part of the standard, leaving only the core requirements. For the European Standard, compliance is simply with clause 4.23, which is the specific clause dealing with magnetic toys in EN 71-1. No modifications are applied to the European Standard. For the US Standard, compliance requires meeting clause 4.38 (magnetic toy requirements) and clauses 8.5 and 8.9 (test methods) with modifications: subclause 8.5.1 is omitted from clause 8.5, and subclause 8.9.2 is omitted from clause 8.9. These omissions remove certain test method steps or alternative assessments. The transitional period is a 12-month window from commencement. During this period, suppliers can comply with any of the four modified standards or with the old 2010 standard. After the transitional period, only the four modified standards are acceptable. The old standard is repealed by Schedule 1, but the repeal takes effect at the end of the transitional period (the repeal itself is commenced later, not on the day of registration). A supplier must be able to nominate which standard it relies on if asked by the regulator. This nomination power under section 108 of the ACL allows the ACCC to verify which standard is being used, which becomes relevant when testing or investigating non-compliance. The exclusions list in section 6 removes several categories: sporting goods, camping goods, bicycles, home and public playground equipment, trampolines, electronic game units, models powered by combustion or steam engines, and fashion jewellery. These exclusions are presumably because those goods are already regulated under other standards or because the risk from magnets in those contexts is considered lower. However, the exclusion does not mean those goods are free from all regulation; they may still be subject to the permanent ban on small high-powered magnets or to general ACL requirements for safety.

The primary duty-bearers are suppliers of magnetic toys. Under the ACL, “supplier” includes manufacturers, importers, and retailers who supply goods in trade or commerce. Any business that places a magnetic toy on the Australian market must ensure compliance with the standard. This includes local manufacturers, overseas manufacturers whose goods are imported by Australian entities, and distributors or retailers that sell such toys under their own brand. The definition of magnetic toy is broad enough to cover specialist toy stores, discount retailers, online marketplaces, and even businesses that give away magnetic promotional items to children if those items meet the definition. The standard also affects designers and product development teams who must incorporate the relevant standard’s requirements into the design and testing phases. Testing laboratories and certification bodies will see demand for testing to one of the four standards. The standard imposes costs on suppliers: they must obtain the relevant standard documents (which are sold by standards organisations, typically at a cost), conduct or commission testing, maintain records, and potentially adjust product designs or packaging. For smaller businesses, the cost of purchasing all four standards (if they wish to have flexibility) could be significant. However, the standard gives them the option to choose any one standard, which may allow them to rely on a standard they already use for exports (e.g., a European supplier might use the European Standard, an American supplier the US Standard). The standard affects consumers indirectly by attempting to reduce the risk of children swallowing magnetic components, which can cause serious internal injuries. The ultimate beneficiaries are children under 14 and their parents, but the standard does not create a private right of action for consumers; enforcement is primarily through the ACL. The regulator (the ACCC and state/territory fair trading agencies) is affected because it must monitor compliance, respond to complaints, conduct testing, and take enforcement action. The standard also affects suppliers of excluded goods: those who supply sporting goods, camping goods, etc., are not required to comply, but they must still be aware of the separate permanent ban on small high-powered magnets if their product falls within that ban. The standard also indirectly affects suppliers of magnets as components; for example, a manufacturer of magnetic building sets must ensure the magnets are contained within the toy or meeting certain size/strength limits to avoid the risks that the standard addresses (though the standard’s requirements are more about preventing ingestion and harm from access to magnets). Finally, the standard affects the legal profession and compliance officers who must interpret the modifications and the interface with the ACL. The transitional period gave existing suppliers time to adjust; those who had stock compliant with the old standard could continue supplying during the transition, but after 28 August 2021, only the new standards (or the four alternatives) are acceptable.

The key duty imposed by this instrument is that a supplier must not supply a magnetic toy unless it complies with one of the four specified standards (during the transitional period, compliance with the old 2010 standard is also an option). This duty is enforceable under the ACL: section 106 of the ACL makes it an offence to supply consumer goods that do not comply with a safety standard, with penalties including fines and possible recall orders. The duty is strict in the sense that the supplier must ensure the product meets the standard; there is no requirement to prove a specific intention to cause harm. However, the duty is limited to the supply of new magnetic toys - second-hand goods are not covered, and the exclusions list means certain products are outside the scope even if they contain magnets. A supplier has the right to choose which of the four standards to comply with. This is a significant flexibility: a supplier exporting to multiple markets may already test to one of these standards and can use the same compliance for the Australian market. However, the regulator can request that the supplier nominate the applicable standard. This right to nominate is a procedural obligation: upon request, the supplier must inform the regulator which standard it is using. If the supplier cannot nominate a standard, that may indicate non-compliance. The standard does not require a supplier to test to all standards; one is sufficient. The supplier also has the right during the transitional period to rely on the old 2010 standard. This allows existing stock and production lines to continue without immediate redesign. After the transitional period, that right expires. There is no express right to choose not to supply; the duty only applies if a magnetic toy is supplied. A supplier could theoretically choose not to supply magnetic toys to Australia at all, avoiding the duty. The standard also does not create a right for consumers to sue for non-compliance directly; actions for damages would typically be based on the ACL’s consumer guarantees or product liability provisions (section 106 of the ACL provides for criminal penalties, but section 108 of the ACL also gives the regulator powers to issue recall notices and infringement notices). A supplier who complies with the standard has a defence against certain actions: compliance with a mandatory safety standard is a factor in determining whether a product is of acceptable quality or has a safety defect, but it is not an absolute bar to liability if the product causes injury due to a known risk not addressed by the standard. The standard itself imposes no duty on consumers; children or parents have no obligations under it.

The instrument itself does not set out penalties. Instead, enforcement flows from the Australian Consumer Law. Under subsection 106(1) of the ACL, a person must not supply consumer goods that do not comply with a safety standard. A contravention is a criminal offence with maximum penalties of up to $500,000 for an individual and $10,000,000 for a body corporate (or three times the value of the benefit received, or 10% of annual turnover, whichever is greater) for a first offence, with higher penalties for subsequent offences under section 151 of the ACL. Additionally, the ACCC may issue an infringement notice (a fine) for alleged contraventions, currently $13,320 for a listed corporation and $2,664 for an individual. The ACCC can also seek civil pecuniary penalties of up to $10,000,000 for bodies corporate and $500,000 for individuals. The regulator has the power to require a supplier to nominate which standard they rely on (section 108 of the ACL). Failure to comply with that request may itself be an offence. The regulator can also issue a recall notice if the goods are non-compliant and pose a risk of injury. A recall notice can require the supplier to notify the public, arrange for return or replacement, and refund costs. Non-compliance with a recall notice is itself an offence. The permanent ban on small, high-powered magnets (Consumer Protection Notice No. 5 of 2012) also carries its own penalties. Importantly, supply of a magnetic toy that complies with this standard does not automatically mean compliance with the permanent ban; the ban applies to any small, high-powered magnet regardless of whether it is part of a toy. So a supplier could be compliant with the toy standard yet still breached the ban if the magnets are small enough and powerful enough. The standard does not set out a defence; the strict liability nature of the ACL means that a supplier cannot argue that it did not know about the standard. However, the option to use the old standard during the transitional period provides a temporary defence to a charge of supplying a toy that does not comply with the new standards, provided the toy meets the old standard. After the transitional period, that defence disappears. The regulator has investigative powers including the ability to require information, conduct searches (with a warrant), and seize goods. Injunctions can also be obtained to prevent supply of non-compliant goods. There is no private right of action for penalties; only the ACCC and state fair trading agencies can bring proceedings, though individuals can report suspected non-compliance. The cumulative effect is that non-compliance with the standard carries significant financial and operational consequences.

This standard is made under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). The ACL applies as a law of the Commonwealth and is also applied as a law of each state and territory through corresponding legislation. Therefore, a breach of this standard is a breach of the ACL in all Australian jurisdictions. The standard exists alongside other mandatory safety standards for toys more generally. For example, the Consumer Goods (Toys) Safety Standard 2020 (if applicable) covers mechanical and physical properties of toys. However, this standard is specific to magnetic toys and may overlap. Suppliers must ensure that their magnetic toy complies with all applicable standards, not just this one. The note in section 6(1) specifically mentions the permanent ban on small, high-powered magnets (Consumer Protection Notice No. 5 of 2012). That ban applies separately: it prohibits the supply of small, high-powered magnets (defined by specific size and flux index) regardless of whether they are part of a toy. A magnetic toy could comply with this standard’s absorption and access requirements but still contain magnets that fall within the permanent ban. For example, a magnetic building set with loose, small, high-powered magnets could meet the standard’s requirements if the magnets are large enough or if the toy is designed such that the magnets cannot be accessed, but the permanent ban may still attach if the magnet is considered a “small, high-powered magnet” as defined in the ban. The ban is a separate prohibition, and both must be complied with. The standard also interacts with other Commonwealth laws such as the Customs Act 1901, which prohibits the importation of goods that do not comply with mandatory safety standards. The Australian Border Force can detain non-compliant goods at the border. State and territory fair trading laws may have additional provisions, but the standard itself is uniform. The standard also interacts with voluntary standards and industry codes; compliance with a voluntary standard does not automatically satisfy the mandatory requirements unless that voluntary standard is one of the four adopted. The modifications made to each standard are binding; a supplier cannot rely on the unmodified standard. There is also potential interaction with the law of negligence and product liability. Compliance with a mandatory safety standard is a factor in determining whether a manufacturer has exercised reasonable care, but it is not a complete defence. If a product complies with this standard but still causes injury due to a defect not addressed by the standard (e.g., a new magnetic material not covered), the manufacturer could still be liable under the ACL’s safety defect provisions (Part 3-5 of the ACL). The standard does not affect the operation of the general law on contract and tort; it sits as a regulatory overlay with penal consequences.

The instrument was made by the Minister for Housing and Assistant Treasurer, Michael Sukkar, on 26 August 2020, and registered on the Federal Register of Legislation. It commenced the day after registration, 28 August 2020. The instrument repealed the earlier Consumer Product Safety Standard for Children’s Toys Containing Magnets (Consumer Protection Notice No. 5 of 2010) which had been in effect since 2010. The repeal is effected by Schedule 1, which repeals the old standard in its entirety. However, the repeal does not take full effect until the end of the transitional period because during the transitional period (12 months) the old standard remains as an alternative compliance pathway. The instrument itself has not been amended since its commencement. The four referenced standards are frozen as at the commencement date. Any later amendments to those standards are not automatically incorporated; to update the references, a new legislative instrument would be required. The transitional period ended on 27 August 2021. After that date, section 7 (which allowed the old standard) was repealed automatically by section 7(2) of the instrument. Post-transitional period, only sections 8 to 12 remain operational. The instrument was made under subsection 104(1) of the ACL, which gives the Minister power to make safety standards for consumer goods. This instrument replaced the 2010 standard which had been in place for a decade. The reasons for replacing the 2010 standard likely include aligning Australia with international standards and addressing changes in magnet technology and injury patterns, though the explanatory statement (not provided here) would have details. Since its commencement, there have been no amending instruments. The standard remains in full force and effect as of the current knowledge cut-off.

The instrument itself does not cite any litigation, and the text provides no reference to court cases. However, the operation of the mandatory safety standard under the ACL has generated enforcement actions by the ACCC. For example, the ACCC has taken action against suppliers of magnetic building sets and similar products under the previous 2010 standard, and it is reasonable to expect that enforcement under this 2020 standard continues. The ACCC has also issued product safety recalls for magnetic toys that failed to meet the standard. While no specific court decisions interpreting this exact 2020 standard are referenced in the source, the general principles of ACL interpretation apply. Courts have considered what constitutes “supply”, “consumer goods”, and the elements of the offence under section 106. For instance, the meaning of “designed or clearly intended for use in play by a child” has been litigated in relation to other toy safety standards. The phrase “clearly intended” involves an objective assessment of the product’s packaging, marketing, and physical characteristics. The standard’s modifications have not been tested in court to date, but if a dispute arises, a court may need to interpret what the omitted sentences meant and why the modification was made. The note in the standard refers to the permanent ban on small, high-powered magnets; that separate ban has been the subject of ACCC enforcement actions, including court proceedings and infringement notices. The standard may be referenced in civil product liability cases where a plaintiff alleges that a magnet toy caused injury and that non-compliance with the standard is evidence of negligence or breach of the consumer guarantee of acceptable quality. However, the instrument’s text does not mention any such cases. The absence of litigation history does not mean the standard is ineffective; enforcement is often handled through recall notices and infringement notices without court action. For a deep dive, it is safe to say that the standard operates as a regulatory benchmark and any litigation would typically be initiated by the regulator rather than private parties, although private litigation is possible under the ACL.

Several traps for unwary suppliers exist. First, the definitions of the four standards refer to them “as in force or existing at the time when this instrument commences”. This means if a supplier purchases an updated version of a standard after that date, they cannot use it; they must use the version in force on 28 August 2020. This is a trap because standards bodies regularly update their standards, and a supplier might inadvertently test to a newer edition. The only way to ensure compliance is to buy or view the specific edition from 2020. Second, the modifications to the Australian/New Zealand and International Standards are not printed in the instrument; the supplier must obtain the full standard and then delete certain sentences. The omitted sentences contain instructions or caveats that may affect how the test is conducted. For example, omitting the last two sentences of clause 4.1 removes guidance on the application of the requirements across different age groups. This could lead to a misinterpretation of the standard. Third, the exclusions list is not exhaustive for all magnet-containing products; for example, “fashion jewellery” is excluded, but a charm bracelet with magnetic clasps that is marketed to children could still be a magnetic toy if it is designed for play. The line between fashion jewellery and a toy can be blurry. Similarly, “electronic game units” are excluded, but a magnetic puzzle that attaches to an electronic device might not be covered by that exclusion. Fourth, the permanent ban on small, high-powered magnets still applies even if the toy meets this standard. Suppliers must check both. The ban defines small, high-powered magnets based on a flux index and size; a magnet that is both small and powerful is prohibited. A supplier might think that because they comply with the toy standard’s requirements (which focus on preventing access and limiting magnetic flux), they are safe. But if the magnets in the toy are high-powered and can be accessed (perhaps if the toy breaks), the supply of those magnets could be prohibited separately. Fifth, the transitional period allowed compliance with the old 2010 standard, but after the period, that standard is repealed. Any stock that was compliant only under the old standard and remains on shelf after the transitional period ends is non-compliant. Suppliers must have cleared old stock by 28 August 2021. Sixth, the requirement that the regulator may request nomination of the standard used means the supplier must keep records of which standard they rely on and be able to produce evidence. Failure to provide that information can lead to additional penalties. Seventh, the standard applies to “magnetic toys” defined as supplied with one or more magnets or magnetic components. A toy that comes with a magnetic wand, for example, is covered. But a toy that is itself magnetic but does not include separate magnetic components (e.g., a plush toy with a magnetic strip inside) may still be a magnetic toy because it is “supplied with one or more magnets or magnetic components” - the magnet is part of the product. Eighth, the standard does not apply to sporting goods, but a magnetic chess set (which is a game) would likely be a toy, not sporting goods. The line between a toy and a game may be ambiguous. Ninth, the European Standard is adopted without modifications, but the European Standard itself may have test methods that reference other parts of the standard. The supplier must ensure compliance with clause 4.23 in full. Tenth, the US Standard modifications omit subclauses 8.5.1 and 8.9.2; this changes the test procedures. Suppliers familiar with the full ASTM F963-17 may think they are complying by following the entire standard, but they must omit those subsections. This could affect whether the product passes the test.

To comply with this standard, a supplier of magnetic toys must first determine whether their product falls within the definition. If the product is designed or clearly intended for use in play by a child under 14 and is supplied with one or more magnets, it is a magnetic toy subject to the standard. If the product is excluded (sporting goods, etc.), it is not subject to this standard, but other laws may apply. Next, the supplier must choose one of the four compliance standards: AS/NZS ISO 8124.1:2019 (with modifications), EN 71-1:2014+A1:2018 (without modifications for magnets), ISO 8124-1:2018 (with modifications), or ASTM F963-17 (with modifications). The supplier should obtain the official version of the chosen standard from the relevant standards body (SAI Global, ISO, or ASTM). For the Australian/New Zealand, International, and US Standards, the supplier must apply the modifications as set out in sections 9, 11, and 12. These modifications involve omitting specific sentences or subclauses. The supplier must ensure that their product is tested to the modified standard, not the original. It may be prudent to engage an accredited testing laboratory familiar with the modifications. The supplier must keep records demonstrating compliance: test reports, certificates of conformity, and a record of which standard was used. If the regulator (ACCC) requests, the supplier must nominate the applicable standard. During the transitional period (first 12 months), a supplier could also comply with the old 2010 standard, but after 28 August 2021, only the four modified standards suffice. Therefore, any product manufactured or imported after that date must meet the new standard. If the product was manufactured before the transitional period end, it may still be supplied after the end if it was compliant at the time it was first supplied? Careful: the standard applies to supply; supplying a good that does not comply at the time of supply is prohibited. So if stock was compliant under the old standard and remains on shelf after the transitional period, it becomes non-compliant. A supplier must either have sold all old stock before the end or have retested it to the new standard. The supplier must also ensure compliance with the permanent ban on small, high-powered magnets. That ban is separate and may require that certain magnets not be supplied at all, even if part of a toy. The standard’s note explicitly warns suppliers of this. The supplier should check the flux index and size of any magnets against the ban. Even if the toy passes the standard, any magnet that can be removed and meets the ban is prohibited. The supplier should familiarise with the testing methods for magnetic strength and access requirements. The four standards have slightly different test procedures; the supplier should choose the one that best aligns with their product and target markets. It is recommended to document the choice and rationale. For products that are imported, the importer must ensure the overseas manufacturer complies. The importer may also need to hold testing records. The regulator may ask for evidence; the supplier should be able to provide a copy of the relevant standard and a test report. There is no requirement to register the product, but the supplier must be able to demonstrate compliance if investigated. Finally, the supplier should monitor the Federal Register of Legislation for any amendments to this standard or any new bans. The standard is static until amended, but other regulations may change. Compliance is a continuous obligation; new batches of products must still meet the standard. If the supplier changes a supplier or product design, they must reassess. It is also advisable to keep up with ACCC product safety alerts for magnetic toys.