NEWARK
– The Superior Court, Appellate Division,
has upheld an earlier decision in favor of
the New Jersey Division of Consumer Affairs,
in the Division of Consumer Affairs’
separate lawsuits against an Indiana company
and a Rhode Island company that together sold
nearly 14,000 yo-yo waterballs to consumers
here despite a 2008 state law banning the
dangerous toys.
The
Division of Consumer Affairs filed suit
in June 2009 against Indiana Novelty International,
Inc., which does business as Kipp Brothers
and which sold 444 yo-yo waterballs in New
Jersey after the State’s ban on the
toys took effect. The Division in December
2009 sued Rhode Island Novelty, Inc., also
known as RINCO, which sold 13,344 yo-yo
waterballs in New Jersey after the State’s
ban took effect.
The
Superior Court of New Jersey, Chancery Division,
ruled against both companies in the separate
cases. Indiana Novelty International, Inc.,
was ordered in August 2010 to pay $54,300
in civil penalties, plus reimbursement to
the State for $13,000 in attorneys’
fees and investigative costs. Rhode Island
Novelty, Inc., was ordered in December 2010
to pay $190,000 in civil penalties plus
reimbursement to the State for $12,000 in
attorneys’ fees and investigative
costs.
On
December 20, 2011, the Appellate Division
upheld both decisions, ruling the defendants’
appeals were without merit. The defendants
did not dispute their sales of the potentially
dangerous toys after they were banned, but
argued that the penalties imposed were excessive;
and that the Division of Consumer Affairs
erred in failing to allow a “grace
period” before enforcing the Yo-Yo
Waterballs Act.
The
Appellate Division noted in each decision
that the penalties imposed were lower than
the maximum penalty allowed by the Yo-Yo
Waterballs Act, of $10,000 for the first
offense and $20,000 for each subsequent
offense. Regarding the defendants’
argument that there should have been a “grace
period,” the Appellate Division noted
that the Act became law on January 3, 2008,
but did not become effective until April
1, 2008, and that the Division was not obligated
to notify every potential seller of yo-yo
waterballs before enforcing the ban.
“We
are talking about toys that have been known
to wrap around the throats of young children,
causing strangulation,” Thomas R.
Calcagni, Director of the Division of Consumer
Affairs, said. “Anyone who sees a
banned yo-yo waterball offered in New Jersey
for sale, as a prize, or as a gift should
contact us immediately. Businesses can promote
children’s safety simply by following
the law and not selling these dangerous
toys in New Jersey.”
Yo-yo
waterballs are inexpensive toys that include
a rubber ball filled with liquid attached
to a rubber cord. The cord has a finger
loop on its end and can stretch about three
feet when swung. In some instances, the
stretched cord has wrapped around children’s
throats, cutting off the child’s ability
to breathe.
On
June 3, 2008, then five-year-old Sydney
Blacker of Scotch Plains suffered strangulation
injuries from a Kipp Brothers yo-yo waterball
she received at her school fair. The toy
had been purchased from Kipp Brothers by
her school’s Parent Teacher Association
in May, after the Yo-Yo Waterballs Act went
into effect. Sydney sustained burst blood
vessels before her mother was able to remove
the wrapped cord from around her neck.
Investigator
Aziza Salikhov conducted the investigation
on behalf of the Division of Consumer Affairs
and its Office of Consumer Protection. Deputy
Attorney General Jah-Juin Ho of the Consumer
Fraud Protection Section represented the
State in this action.
Consumers
who believe they have been cheated or scammed
by a business, or suspect any other form
of consumer abuse, can file a complaint
with the State Division of Consumer Affairs
by visiting its website, www.NJConsumerAffairs.gov,
or by calling 1-800-242-5846
(toll free within New Jersey ) or
973-504-6200.
Follow
the Division of Consumer Affairs on Facebook
at www.facebook.com/pages/NJ-Division-of-Consumer-Affairs/112957465445651,
and check our online calendar of upcoming
Consumer Outreach events at www.NJConsumerAffairs.gov/outreach/.
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