On March 11, 2011, the Consumer Product Safety Commission (CPSC) officially launched its new, online Product Safety Information database (Database) at www.saferproducts.gov. The Database became publicly accessible and searchable on April 1, 2011. The CPSC is encouraging consumers and others to submit any “report of harm” regarding actual or potential product-related safety risks for publication in the Database and to use the Database to research product safety issues prior to purchasing consumer products. The CPSC will neither verify the accuracy of these reports nor screen them for confidential information; it is only required to provide notice of the report to the relevant manufacturer or private labeler. The manufacturer or private labeler will then have the burden of identifying and seeking the exclusion of any inaccurate or confidential information before the reports are published in the Database 10 business days after notice to the company. Thus, it is extremely important for companies to promptly review and, as appropriate, respond to any reports submitted to the Database.
Furthermore, manufacturers and private labelers of consumer products can register with the CPSC to receive more immediate notice of any reports submitted to the Database, to ensure that the appropriate contact person receives the notice, and to streamline the response and comment process. Because a prompt response may be necessary to attempt to prevent the publication of inaccurate or confidential information in the Database, manufacturers and private labelers of consumer products should take advantage of the opportunity to register and designate the appropriate individual(s) to receive Database notifications. However, reports of harm may be published even if the CPSC is still considering whether the report contains a material inaccuracy. Manufacturers and private labelers also have the option of submitting comments about reports of harm for publication in the Database.
The Database is mandated by 15 U.S.C. § 2055a, part of the Consumer Products Safety Improvement Act of 2008 (CPSIA). It is intended to collect primarily consumer-generated reports of product-related harms or risks of harm and to make those reports available to consumers through a publicly accessible, searchable online database. 15 U.S.C. § 2055a(a)(1).
The CPSIA and its implementing regulations, which appear at 16 C.F.R. Part 1102, broadly define the scope and content of the Database. Consumers and other parties, such as government agencies, healthcare providers, child service providers, and public safety entities, may submit reports detailing any harm associated with the use of a consumer product, with “harm” defined to mean any “injury, illness, or death; or risk of injury, illness, or death.” 16 C.F.R.§ 1102.6(b)(4) (emphasis added). Reports are required to contain, inter alia, an identification of the product and its manufacturer or private labeler and a narrative description of the harm or risk of harm at issue.§ 1102.10.
Obtaining and Responding to Reports
Once the CPSC receives a report, it is required to redact all identifying information about the reporter and then to transmit the report to the relevant manufacturer or private labeler, generally within five business days. § 1102.20. In order to streamline this process, manufacturers may register with the CPSC and designate their preferred manner of transmission and the individual(s) to whom reports should be transmitted.Id.
Upon receipt of a report, the product manufacturer or private labeler is entitled to: (1) submit comments on the report for publication in the Database or privately to the CPSC; (2) request that confidential or trade secret information be deleted from the report prior to its publication; and (3) challenge the accuracy of the report and request the deletion or exclusion of any “materially inaccurate information.” §§ 1102.12, 1102.20 - 1102.26. Importantly, the only way to prevent publication of a report in the Database is by demonstrating that it contains confidential, trade secret, or materially inaccurate information. §§ 1102.20 – 1102.26. The manufacturer or labeler seeking to have part or all of a report deleted or excluded on these grounds bears the burden of proof in establishing the confidentially or material inaccuracy of the information in question. Id.
Manufacturers and labelers may submit comments or objections through a special portal on the www.saferproducts.gov website or by mail or e-mail, although the website portal option is available only to those that have registered with the CPSC. See § 1102.12(b). Any objections to a report or any comments that a manufacturer or labeler wishes to have published in the Database contemporaneously with the report should be provided to the CPSC as expeditiously as possible, as reports of harm are to be published in the database “as soon as practicable, but not later than the tenth business day after such report of harm is transmitted to the manufacturer or private labeler by the CPSC.” § 1102.28(a). A manufacturer or labeler may still submit comments for publication or seek the correction or deletion of materially inaccurate information through the ordinary comment procedure even after a report is published in the Database. See §§ 1102.12, 1102.26(b), (h) & 1102.30. However, if a manufacturer or labeler seeks to have confidential or trade secret information redacted from a report after its publication in the Database, then it must file an action in the United States district court for the district in which it resides. § 1102.24(h).