The Consumer Product Safety Commission's (CPSC) product safety database suffered its first successful legal challenge in a recent ruling by a Maryland federal judge. US District Judge Alexander Williams Jr's opinion in Company Doe v Inez Tenenbaum(1) echoes the concerns that product manufacturers have voiced since the implementation of the CPSC database in March 2011 and may cause the CPSC to vet more closely the accuracy of product complaints submitted by the public.
The CPSC database allows the public to submit reports of harm involving a consumer product directly to a publicly searchable database.(2) After being notified of a complaint, a product manufacturer, importer or private labeller has 10 days to challenge the accuracy of the report before it is published by the CPSC in its product safety database. Even if the accuracy of a report is challenged, the CPSC makes the final decision regarding the wording of a published complaint. The CPSC database features the prominent disclaimer that the "CPSC does not guarantee the accuracy, completeness, or adequacy of the contents" of the database. However, this disclaimer provides little solace when a complaint is wrongly linked with a product.
The Company Doe action is the first reported attempt by a manufacturer to challenge in court the ability of the CPSC to include a complaint submitted by the public in its product safety database.
An unidentified company filed an action in the US District Court of Maryland under seal against the CPSC for publishing an incident report that the company claimed was "materially inaccurate". The action was filed under seal so that the unidentified company could remain anonymous and not be linked to what it claimed to be an incorrect complaint against one of its products.
Though the US District Court of Maryland's 73-page ruling has been heavily redacted to ensure that the plaintiff manufacturer cannot be identified, it provides sharp criticism of the CPSC's review of the incident report. The court explained that the CPSC's decision to publish the complaint was "arbitrary and capricious", and thus a violation of the Administrative Procedures Act, because the evidence considered by the CPSC failed to link the injury suffered by the consumer to the plaintiff manufacturer's product.
This decision highlights the concern that industry participants identified when the CPSC database was initially launched: that a lack of quality control over complaints being submitted to the database would lead to misinformation being published to the public.(3) The CPSC database is intended to increase transparency by providing a publicly searchable and timely database containing product safety information, but there is no reliable way to verify the information that the public is submitting to it and to ensure that inaccurate information incorrectly linking an injury to the wrong manufacturer is being excluded. It is also extremely expensive for wrongly accused companies, such as Company Doe, to get the CPSC to remove incorrect complaints from their database through litigation. The ruling in Company Doe may push the CPSC to scrutinise complaints more closely before publishing them in order to prevent further criticism from the courts. It may also give companies more leverage when challenging the accuracy of reports to be published in the database. Ultimately, however, this problem should be addressed by new legislation either dismantling the CPSC database or requiring more evidence supporting claims before they can be published to the public. In its current form, the CPSC database simply does more harm than good by allowing misinformation to be readily disseminated to the public.
For further information on this topic please contact Linda Lane or Nathan Cooper at Morrison & Foerster LLP by telephone (+1 202 887 1500), fax (+1 202 887 0763) or email ([email protected] or [email protected]).
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(3) See "3-2-1, Ready for Launch: www.saferproducts.gov"; www.mofo.com/files/Uploads/Images/110225-CPSC-Database.pdf.