Almost 2,000 consumer complaints have been published in the Consumer Product Safety Commission (CPSC) public database (SaferProducts.gov) since it went live on March 11, 2011. Consumer product manufacturers should be acting now, if they have not already, to be able to respond promptly to complaints about their products.
Establishment of the database was required by the Consumer Product Safety Improvement Act of 2008. It provides a searchable means for the public to review product complaints submitted by consumers.
How the Database Works
Complaints are entered into the database with little verification by CPSC and, consequently, few protections against publication of false, misleading or damaging claims. While consumer groups have either supported the database or argued that it does not go far enough in its protections, manufacturers and members of Congress have noted these limitations and the potential for product disparagement and increases in product liability litigation based on unverified and/or inaccurate information.
A consumer report submitted to the database must include the following:
- A description of the consumer product or substance;
- Identification of the manufacturer or private labeler;
- A description of the purported illness, injury or death, or perceived risk of illness, injury or death, caused by the product;
- Identification of the type of submitter, i.e., consumer, health care professional, child service provider, public safety entity, etc.;
- Approximate date of the incident;
- Name and contact information of the submitter of the report;
- Whether or not the consumer consents to publication of the report in the database; and
- A statement by the consumer verifying the truth and accuracy of the information provided.
At their discretion, consumers may also include:
- Name and contact information of the victim (if different from the submitter);
- Whether an actual injury occurred and, if so, what, if any, medical treatment was required;
- Photographs or documents that may help identify the manufacturer or private labeler;
- Whether or not the consumer consents to providing their name and contact information to the manufacturer or private labeler.
CPSC must review a submitted report within five business days (if practicable), but only to ensure that it contains the mandatory information above. CPSC must then forward the report to the manufacturer or private labeler, and must post the information in the database 10 business-days later.
Manufacturers Must Be Prepared
Manufacturers need to have procedures in place before they receive a CPSC notification that will assure a prompt and substantive response. Once it receives a report, a manufacturer has only 10 business-days to provide comments for inclusion with the report in the database or object to publication of the report based on the inclusion of the information or trade secrets, unless the manufacturer promptly convinces the Agency that the report is "materially inaccurate."
Moreover, the manufacturer bears the burden of proving that information is "materially inaccurate," i.e., that it is false or misleading and so substantial or important as to affect a reasonable consumer's decision making process about the product. If CPSC agrees that information is materially inaccurate, it can correct or add information to the report and publish it, or decline to make the report public. In addition, a manufacturer may publicly comment on or may file an objection to a report even after it has been published. However, the limited verification required for reports, the 10-business-day window for manufacturers to object or comment prior to publication, and the high standard applied to an objection to a report strongly suggest a significant potential for CPSC to publish misleading information.
What Manufacturers Should Do
Manufacturers should develop procedures for monitoring and responding to database complaints. Manufacturers who have not done so should register with SaferProducts.gov to ensure timely notification of reports affecting their products.
Voluntary registration ensures that manufacturers can timely respond to consumer reports and can monitor any emerging product risks. Manufacturers who register receive email notification of new reports. In addition, the manufacturer web portal provides convenient electronic forms for public comments on and/or objections to a report. While registration is voluntary, reports concerning manufacturers not registered with SaferProducts.gov will only be sent reports by U.S. mail to the manufacturer's last address on file with CPSC.
Manufacturers' complaints regarding the potential inaccuracy and reliability of the database have attracted the attention of Congress. The House Appropriations Committee has voted to recommend to the House that SaferProducts.gov be defunded in the 2012 budget. It also commissioned a Government Accountability Office study of the effectiveness of such a database. While it appears unlikely that such a recommendation will pass both the House and the Senate, it likely will bring additional future scrutiny of the database's utility.
Regardless, as manufacturers and private labelers create and implement programs to monitor and respond to complaints in the CPSC database, they should also take a hard look at expanding that program to address complaints in other electronic media. Many product safety complaints appear as comments to retailer website product listings. Blogs written by consumers, public safety advocates and trial lawyers may also contain anecdotal information on alleged safety problems. Those complaints may signal an emerging product risk. They may affect customer goodwill and product sales or attract the attention of CPSC or plaintiffs' product liability counsel. Periodic monitoring of retail websites and regular web searches, e.g., setting up Google Alerts for brands and company names, can protect a manufacturer from both reputational harm and litigation costs.