• Businesses Can Now Register for CPSC Public Product Safety Database Reports
  • January 20, 2011 | Authors: Karen F. Lederer; Eric L. Unis
  • Law Firm: Troutman Sanders LLP - New York Office
  • Starting today, businesses can register with the Consumer Product Safety Commission to receive reports about their products submitted to the CPSC’s publicly available consumer product safety database, now scheduled to go online March 11, 2011 at www.saferproducts.gov.  Section 212 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) directed the CPSC to establish and maintain the searchable database, which will include incident reports on products under the CPSC’s jurisdiction. The stated purpose of the public database is to function as an “early warning system” by providing consumers with information to alert them about potential product safety issues more quickly.  Previously, incident reports filed with the CPSC were not generally available, and usually could only be accessed through a time-consuming Freedom of Information Act request.  Often, the public would learn about potential dangers only after a product recall was issued. 

    In December, the CPSC published its final rule on the database. The database rule, approved by the Commissioners by a single vote, comes with a good amount of controversy. The dissenting Commissioners believe that the rule goes beyond the CPSIA’s language concerning who may submit a report to the database. The rule recites a broad definition of the word “consumer” and also allows “public safety entities” to submit reports. These entities are defined to include not only government entities such as fire departments, but also “consumer advocates or individuals who work for nongovernmental organizations, consumer advocacy organizations, and trade associations, so long as they have a public safety purpose.” Critics of the rule believe that these expansive definitions will inevitably lead to many reports in the database being submitted by those with an agenda other than informing consumers and the CPSC about potential product safety issues, and that the database will facilitate frivolous product liability lawsuits.

    The other major criticism of the rule is that it will not adequately prevent inaccurate reports from being submitted and posted, as the “verification” process set forth in the rule lacks teeth. There are only minimal requirements for what must be included in the report, such as the name of the product manufacturer or private labeler and a brief description of the harm or risk of harm, although the CPSC had the statutory authority to require that more information be included in a report for it to be published.  And the rule creates no obligation to investigate the incident report or to confirm its accuracy.  Proponents of the database rule point to the fact that all reports in the database will include a disclaimer stating that the CPSC does not guarantee the accuracy of reports submitted by persons outside the CPSC and the fact that manufacturers and private labelers who are the subjects of incident reports will have the opportunity to comment on the reports. The rule provides that “to the extent practicable” the CPSC will transmit the incident report to the product’s manufacturer or private labeler within five business days.

    The rule allows manufacturers and private labelers to register to receive reports filed about their products. (The registration form can be accessed at www.saferproducts.gov). The benefit of registering is that companies may designate appropriate personnel to receive the reports electronically, which will help provide the company with more time to respond to the report. Upon receiving the report, the subject company will have the opportunity to comment on the report, to provide information to the CPSC, and to include a response which may be posted in the database alongside the report if the CPSC in its discretion determines that it is in the public interest. The subject company can ask for a determination that the report contains “materially inaccurate information.” The CPSC, however, will not delay publishing the report to assess whether or not the report contains such inaccuracies and will publish it on the tenth business day after transmitting to the subject company for comment, regardless.  After a report is published, a subject company, or anyone else, such as a retailer who sells the product at issue, may still raise a claim of material inaccuracy.

    In other CPSC news, the CPSC announced last week that it is opening its first overseas office, in Beijing, China, to assist Chinese manufacturers with their understanding of American safety standards.