• CPSC Unveils Public Database of Consumer Product Safety Complaints
  • March 18, 2011 | Authors: Deborah A. Cumba; E. Paul Dougherty
  • Law Firms: Wilson Elser Moskowitz Edelman & Dicker LLP - San Diego Office ; Wilson Elser Moskowitz Edelman & Dicker LLP - Los Angeles Office
  • On March 11, 2011, the U.S. Consumer Product Safety Commission (CPSC) launched www.saferproducts.gov, a new public database that will allow consumers to research and report product safety issues - and manufacturers and retailers to comment on those issues.  
    Complaints are limited to issues of “product safety” and will be reviewed by the CPSC for accuracy and credibility. Reports of harm can be submitted for publication in the public database by consumers; local, state or federal government agencies; health care professionals; child care providers; and public safety entities.
    Reports must include the following:

    • Description of the product.
    • Product manufacturer.
    • Report of harm or risk of harm presented by the product.
    • Name and address of complaint filer (although this will not be viewable in the database).
    • Complaint filer’s signature on a statement verifying accuracy of the report.

    In addition to the required information above, the following information is optional:

    • Date and location of incident.
    • Medical treatment received.
    • Photographs of the product.
    • E-mail/phone contact information for complaint filer.

    Upon receipt of a product complaint, the CPSC will review it for compliance with the requirements above. Within five days of receiving a report of harm, the CPSC must inform the manufacturer by sending an official notice to the manufacturer’s point of contact. The manufacturer will have an opportunity to respond. The CPSC will publish the report 10 days after notifying the manufacturer and will include the manufacturer’s timely submitted comments.

    The CPSC may decline to add “materially inaccurate” information to the database. If the CPSC determines that information already published in the database is materially inaccurate, it will remove or correct the information within seven business days.
    The CPSC has acknowledged that due its relatively small staff and the expected “fire hose of incident reports,” it will be able to do very little to verify the accuracy of the information in the reports. Nevertheless, 10 days after the manufacturer receives the report of harm, the CPSC intends to publish the reported information in the database, even if a “material inaccuracy” determination is still pending.

    Responding to Product Complaints
    Upon notification of a product complaint, the manufacturer will have 10 days to respond before the report is posted on the public database. The manufacturer’s response will be included in the complaint file and will also be publicly available. To ensure that responses comply with the short turnaround time, manufacturers should implement a calendaring system so the 10-day period does not slip by without comments being submitted.

    Manufacturers’ comments will be subject to the CPSC’s “materially inaccurate” determination.  If a manufacturer determines the incident report is materially inaccurate, it should submit comments with the goal of persuading the CPSC not to publish the report in the database. For example, if an incident report refers to a product not made by the manufacturer, this materially inaccurate information should be challenged immediately.

    If the manufacturer finds information showing that a published incident report is inaccurate, it should submit that information to the CPSC so that it may investigate and either remove the incident report from the database or correct the materially inaccurate information. It is unclear whether manufacturers will have any remedy if the CPSC declines to publish their comments. In addition, manufacturers should review each incident report for confidential information and, if necessary, request that the CPSC prevent that information from being viewed.
    While the manufacturer’s comments may be submitted up to one year after the initial publication of the report of harm, the publication of such a report without the manufacturer’s comments creates an unchallenged record of an incident. Thus, manufacturers need to immediately comment on any reports that warrant a response.

    When drafting comments, manufacturers and their counsel should be mindful of possible ramifications on future litigation. They should also remember that consumers, other manufacturers, plaintiffs’ lawyers, the CPSC, and the media will all be able to read those comments and compare them to prior comments from the manufacturer and other manufacturers. Thus, manufacturers should post carefully considered counter-balancing comments, keeping in mind their potential admissibility in future litigation. Comments may include a standard response stressing the manufacturer’s commitment to product safety and regulatory compliance.

    Given the 10-day window to respond to a product complaint before it becomes publicly available, manufacturers need to prepare for a quick response. A designated point of contact should have easy access to the following information: names and contact information for key personnel, sources of materials (including third-party suppliers), and the distribution history for each product.

    If the consumer provides contact information, the manufacturer may consider getting in touch to find out more details about the incident. Manufacturers may also want to implement a process for determining whether a consumer’s incident report should trigger the company’s reportable-incident or recall plans.

    Further, manufacturers should track each consumer incident report received, as well as the content of any comments. Having this information readily available will enable the manufacturer to quickly compare prior responses for similar incidents to the comments currently being drafted.

    The database has a place for the consumer to identify the seller, as well as the manufacturer. So these notes on what a manufacturer might consider are also applicable to each party in the chain of distribution, especially if there is a national distributor of the product. Coordination among the members of the distribution network, of course, would be the best practice.

    The Potential Impact of the Database on Product Liability Litigation
    While the CPSC is required to provide notice to the users of the database that it does not guarantee the accuracy, completeness or adequacy of the content, this disclaimer will not necessarily prevent unverified and inaccurate reports of harm from becoming evidence in product liability cases. Thus, of major concern to all manufacturers is the potential for false or incomplete information and the adequacy of the CPSC’s verification of the information posted.

    The database will provide the plaintiffs’ bar with a searchable website of complaints. It can be assumed that plaintiffs’ attorneys will attempt to use this information to establish a pattern of prior complaints, even if the claims are unsubstantiated. In addition, any manufacturer response will surely be used in discovery to attempt to show notice, as well as the action the manufacturer took in response to the complaint. Further, it is anticipated that plaintiffs’ counsel will argue that the manufacturer’s comments in response to a CPSC report can be used as evidence of a party admission.

    Plaintiffs’ attorneys will likely attempt to use the reports to establish evidence of substantially similar incidents. Historically, information regarding prior incidents was obtained from company records of reported incidents, or prior lawsuits in which the company was a party. In both scenarios, the company knew the identity of the complainant and had the opportunity to fully investigate the claim, putting it in a better position to accurately determine whether the prior incident was similar to an incident at issue.

    However, with the new database, manufacturers will not have the opportunity to investigate reports of harm, since they likely will not be permitted to know the identity of the complainants and will be limited to the unidentified person’s version of how the particular incident occurred. Thus, when members of the plaintiffs’ bar attempt to use the reported complaints of harm as evidence of prior similar incidents, the manufacturer will be placed at a prejudicial disadvantage.

    Further, questions may be raised during litigation as to whether a manufacturer waived any confidentiality protections or conceded the accuracy of a CPSC report, if it does not mount an objection to that report. If a manufacturer has the opportunity to challenge a publication, but does not do so, it may have a difficult time convincing a court at a later date that it had a protected interest or should not be bound by the accuracy of the report.

    In addition, the use of social networking media will provide a means for immediate dissemination of product complaints to large masses of potential consumers, which could raise public relations issues and alert plaintiffs’ attorneys across the country about new complaints.

    Registration
    The CPSC encourages manufacturers to register online. The touted benefits include: the ability to have reports of harm involving the manufacturer’s products sent to the designated representative quickly and securely through e-mail, a convenient and secure account to provide comments for CPSC’s consideration and to receive official CPSC correspondence, multiple user accounts for registered companies, and saving time in meeting the 10-day deadline before the report of harm is posted in the database.

    While the CPSC will only recognize one point of contact per account, and the manufacturer’s response to product complaints must come from this point of contact, a manufacturer can set up multiple accounts with a point of contact for each division or product line. Complaints in the database may be viewed by up to five representatives from each manufacturer. Foreign companies can also register with the CPSC.
    To register, a company’s designated representative must visit the Business Portal at www.saferproducts.gov and submit the following information: company name and contact information; type of company (i.e., manufacturer); contact information for the primary point of contact; and e-mail addresses for the company representatives authorized to view complaints.