After intense debate, the day before Thanksgiving the Consumer Product Safety Commission ("CPSC") approved by a vote of 3-2 the structure for the consumer incident database mandated by the 2008 Consumer Product Safety Improvement Act. Two of the most controversial provisions include (1) defining "consumers" and "public safety entities" who can post reports of harm or potential harm and (2) handling reports that the manufacturer has challenged as inaccurate.

The Commission voted to define "consumer" as including, but not limited to, users of consumer products, family members, relatives, parents, guardians, friends, attorneys, investigators, professional engineers, agents of a user of a consumer product, and observers of the consumer products being used. The Commission also approved an expanded definition of “public safety entity” to include consumer advocates or individuals who work for nongovernmental organizations, consumer advocacy organizations, and trade associations, so long as they have a public safety purpose. Industry groups and Commissioners Nord and Northup have expressed concerns that the broad definition will enable abuse and the submission of false information.

For information that the manufacturer has challenged as inaccurate, if a request for determination of materially inaccurate information is submitted prior to publication in the Database, the Commission cannot withhold a report of harm from publication in the database until it makes a determination. Inaccurate information can be corrected after posting.

The database is scheduled to go live in March at SaferProducts.gov. In the meantime, companies should take immediate steps to identify a team to review reports forwarded by the Commission and to develop a strategy for responses.