On March 11, 2011, the CPSC launched its public, searchable, online database for receiving and publishing reports of harm caused by consumer products at www.SaferProducts.gov. If they have not done so already, businesses should take action by registering to receive reports of harm and implementing an internal system for responding to those reports.
The SaferProducts.gov database will (1) allow any individual to submit a report of harm via a web-based form, (2) publish the report to the general public without verifying or investigating its content, and (3) allow the public, including journalists and the plaintiff's bar, to electronically search the reports of harm in the database.
Information reported to the CPSC prior to the launch of the database has been and will continue to be available only through a Freedom of Information Act request, to which companies have an opportunity to object. Now that the database has launched, the only tool provided to businesses to respond to the publication of a report of harm will be to issue a public comment, which will be incorporated in the SaferProducts.gov database.
In order to receive reports of harm and have an opportunity to respond, businesses must register with the CPSC to receive e-mail notice of reports related to their products. In addition to registering with the CPSC, businesses should create an internal procedure for responding to reports. Having a proactive procedure in place is important as businesses will have only 10 days to respond to a report of harm before the report is published to the public.
The procedure for responding to reports of harm should be carefully designed to limit liability. For example, businesses should consider that communications and other internal documentation related to responding reports of harm will be subject to discovery in litigation. Additionally, businesses should be aware that the notice provided by a report of harm can create an increased risk of punitive damages in later litigation.