It has been called the "Database of Doom" by some1 and a turning point in the history of consumer safety by others.2 It is the Consumer Product Safety Commission's new public database, where consumers will be free to post complaints about the safety of the more than 15,000 products regulated by the Commission. Before the site goes live on March 11, 2011, manufacturers, importers, retailers and private labelers need to know what the database is, what it is not, and what they can do to get ready for the launch.
What the database is
In passing the Consumer Product Safety Improvement Act of 2008, Congress directed the Commission to establish a searchable, publicly available website where "reports of harm" may be submitted for publication and available for public review. A "report of harm" is defined as an injury, illness or death, or any risk of injury, illness or death, that is related to the use of a consumer product.3 Reports of harm may be submitted by government agencies, health care professionals, child service providers, public safety entities and anyone who falls into the broadly defined category of "consumer." "Consumers" are not only product users and their families, but also attorneys, investigators, agents of product users and anyone who observes a product being used.4 This expansive definition has many businesses worried that the database will be misused by some to gain competitive advantage or to fuel litigation. The Commission plans to counter potential misuse by requiring anyone who submits a report of harm to verify its truthfulness and accuracy.
The database and all published reports of harm will be available to the public at www.saferproducts.gov, a website maintained and operated by the Commission. Critics of the database fear that because the database will be maintained by an agency of the federal government, it will carry a misleading imprimatur of reliability. The Commission has responded to this criticism by including a broad disclaimer on the site, which states:
The Commission does not guarantee the accuracy, completeness or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the Commission.
The database will be accessible to anyone with an Internet connection and will be fully searchable by brand name and manufacturer. While the Commission is required to review reports of harm before they are published to ensure that minimum requirements are met, the agency will not investigate every report. All reports that meet the following eight criteria will be uploaded for public view within 15 business days of receipt by the Commission:
1. Description of the product
2 Identity of the manufacturer or private labeler
3. Description of the harm
4. Incident date
5. Category of submitter
6. Submitter's contact information
7. Verification of submitter
8. Consent of submitter for publication5
The report of harm may also include the name of the retailer that sold the product. Reports that are submitted anonymously will not be published. However, while submitters must disclose their identities and contact information to the Commission, the Commission will not release that information without the submitters' consent. In many cases, then, businesses will be unable to learn the identity of the person who submitted the report of harm.
The Commission will have five days from receipt to notify the manufacturer, importer or private labeler that a report of harm has been filed. The Commission will not provide notification to retailers, who do not have the option of registering on the site. Businesses will then have 10 days to respond in one of three ways: (1) by asserting that the report contains confidential business information; (2) by stating that the report is materially inaccurate; and/or (3) by submitting comments to be posted on the website along with the report of harm. The Commission will review claims of confidentiality or material inaccuracy, but it is not required to complete the review before the report of harm is published.
What the database is not
The database is not a product review site. The Commission will only accept reports of harm that may implicate public safety. The database is not a blog, and people will not be able to post their comments online. Only reports that meet the Commission's eight criteria for publication will be posted. The database will not relieve manufacturers, distributors, importers and retailers of their obligations under section 15(b) of the Consumer Product Safety Act to notify the agency of any product that does not comply with a safety rule or contains a defect that poses a risk of injury or death.
What you can do
Time is of the essence in every aspect of the database. The Commission is statutorily required to publish reports of harm within 15 business days of receipt; manufacturers, importers and private labelers will be given only 10 days beforehand to respond. The first priority for businesses should be to register on the business portal of the database to ensure that they receive timely electronic notification of any report of harm. Registration is simple and available now, and businesses can designate multiple email addresses to receive notices. There is no provision for retailers to register, but manufacturers, importers and private labelers can create "sub-accounts," which may be used to direct notices to specific retailers.
Businesses should have a rapid response team in place before notices are received. When reports come in, the team can review them for accuracy and confidential data and determine whether, and how, the business wants to respond. Businesses will also need to weigh whether to prepare comments on the reports of harm for inclusion on the database. Response teams will need to monitor the database and track reports, which may give rise to other reporting obligations to the Commission, including notice of recalls. The Commission also will monitor the database for trends. Database critics warn that reports of harm may be cited as notice of a defect by plaintiffs in product liability suits, so knowledge of what is on the site will be critical to risk management.