I. Background

The United States Consumer Product Safety Commission (CPSC) recently finalized rules creating a searchable online database of safety-related complaints about consumer products. Set to become active in March 2011, the database presents a number of challenges to manufacturers, importers and private labelers (collectively “manufacturers”) of consumer goods. The working version of the database’s web address is www.saferproducts.gov.

II. Overview of the Database

The database will consist of anonymous reports of harm, which are allegations of injury or even a risk of injury caused by consumer products, as well as recall notices and other information the CPSC deems to be in the public interest. For purposes of the database, consumer products are items within the broad definition of § 3(a)(5) of the Consumer Product Safety Act, which includes, with limited exceptions, items intended for sale to consumers for use at home and elsewhere. The definition of consumer products also includes other items and substances regulated by the CPSC.

The database will be searchable and sortable by manufacturer and product name. Reports of harm may be submitted by users of products and their attorneys, consumer groups and those who merely observe others using products.

After receiving a report of harm, the CPSC will generally notify the relevant manufacturer within five business days. The manufacturer will have no more than 10 business days to respond with any comments to be published alongside the report.

Example Timeline: please click here.

The rules allow manufacturers to challenge the accuracy of reports of harm, and reports shown to be inaccurate will be removed or, more likely, revised. However, the CPSC will not remove or refrain from publishing reports of harm while assessing their accuracy, and the CPSC will have seven business days to remove or revise a report it deems to be inaccurate. Further, manufacturers who challenge reports as inaccurate are expected to certify in writing that they intend to assist the CPSC if litigation seeking the publication of the report ensues. Reports of harm might be submitted with confidential information such as trade secrets. The rules allow manufacturers to seek the redaction of such information, but as with inaccurate reports, manufacturers are expected to certify in writing that they intend to assist the CPSC if litigation seeking the publication of confidential information ensues.

III. Challenges the Database Presents to Manufacturers

The database presents a number of challenges to manufacturers. Among them, manufacturers face the increased burden of scrutinizing the database and being prepared to respond quickly to reports of harm before the comment period expires.

In addition, plaintiffs and their lawyers may point to reports of harm, whether accurate or not, as establishing notice that a product was dangerous or as “evidence” that a product caused injury. Plaintiffs’ lawyers may also use the database to search for targets of class action and other litigation.

Consumer groups and others may submit reports of harm to further an agenda with regard to manufacturers, products and industries. The media may use the database to create unfavorable stories with regard to manufacturers, products and industries. Unscrupulous competitors may seek to use the database to tarnish other manufacturers.

IV. Recommendations

Manufacturers should be prepared to meet these and other challenges before the database’s planned launch in March 2011. One important proactive step is to consider registering with the CPSC’s “business portal” to receive electronic notification of reports of harm. Manufacturers who do not register will receive notification of reports of harm through the U.S. mail, which will effectively reduce the 10-business-day response period while the notification is in transit. However, the benefits of online registration must be weighed against other interests, such as litigation and regulatory considerations.