On November 24, 2010, the U.S. Consumer Product Safety Commission (CPSC, or Commission) approved a Final Rule establishing a new publically available Consumer Product Safety Information Database. In a divisive 3-2 vote, the Commission authorized official publication of detailed regulations governing the database. The database will allow consumers – and others – to submit complaints about the safety of products as well as search and review existing complaints. It will become operational in March 2011.
The database will be accessible through the Commission’s website (www.saferproducts.gov). It will contain complaints – or as they are identified in the regulations, “reports of harm” – relating to the use of any consumer product. More than 15,000 different types of consumer products are regulated by the Commission and can be included in the database. With few exceptions, virtually anyone may submit a report of harm. Manufacturers (or private labelers) of such products will be allowed – within a very short time frame – to submit their own comments and also to object that a report contains materially inaccurate or confidential information. Although the Commission will provide a clear and conspicuous disclaimer to database users that the Commission does not guarantee the accuracy, completeness or adequacy of the database contents, the database will be a comprehensive repository of consumer product complaints.
What Will Be in the Database?
In addition to reports of harm that involve not only actual injury or death, the database will also include reports concerning the risk of injury or death relating to the use of consumer products. In addition, it will contain manufacturers’ comments regarding the reports of harm, information the Commission obtains from recall notices and additional information the Commission determines is in the public interest.
Who Can Submit Reports of Harm?
A report of harm may be submitted by a consumer; a local, state or federal government agency; a health care professional; a child service provider; or a public safety entity. The definition of “consumer” is expansive and may include attorneys, investigators and “observers” of consumer products being used. Similarly, “public safety entities” are not limited to police and fire services, but may include consumer advocates or individuals who work for nongovernmental organizations, trade unions or the like, as long as they have a public safety purpose. Concerns have been raised that plaintiffs’ attorneys, business competitors or others with ulterior motives may exploit the database with reports for their own purposes.
What Are the Minimum Requirements for a Report of Harm?
Reports of harm will not be included in the database unless they contain all of the following, at a minimum:
- a description of the consumer product
- the identity of the manufacturer or private labeler of the consumer product
- a description of the harm related to the use of the consumer product
- contact information for the person submitting the report (this will not be disclosed in the database)
- verification by the person submitting the report that the report contains true and accurate information
- consent by the person submitting the report that the information may be included in the database
The following are key time frames associated with the new database:
- The Commission is required to transmit reports of harm to the manufacturer/private labeler “to the extent practicable” no later than the fifth business day after the Commission receives the report.
- The manufacturer/private labeler may submit a comment about the report of harm and that comment may be included in the database.
- A manufacturer/private labeler has 10 business days to comment on the report or to make a claim that the report contains materially inaccurate information. After 10 business days, the report will be published in the database unless the Commission has determined through its own investigation (prior to publication in the database) that the information is materially inaccurate (or confidential).
Protecting Confidential Information
Because some reports of harm may include confidential information about a product, manufacturers and private labelers may request that portions of a report be treated as confidential and redacted from view in the database. If the Commission determines that such information is confidential, it will be protected from public disclosure.
Concerns for Businesses
The most problematic aspect of the database for manufacturers and private labelers is the extremely short time frame they have to investigate reports of harm concerning their product and submit verified comments on the validity of the report; again, this must be accomplished within 10 business days of the Commission transmitting the report to the manufacturer/private labelers. Manufacturers/private labelers must be able to rapidly determine the following: if the reported product is identifiable as the manufacturer’s/private labeler’s; if the alleged failure and resulting harm are possible; if the report contains other materially inaccurate information; or if the report contains confidential information that must be protected from public disclosure.
Organizing the appropriate individuals and tasking them with the various aspects of such an investigation will be challenging. Failure to act timely, however, may result in the Internet publication of a harmful report about a manufacturer’s or private labeler’s product that is materially inaccurate or contains confidential or trade secret information.
To obtain timely notice of reports, manufacturers should register with the Commission for access through an electronic business portal being developed for the database. This will allow direct electronic notice be given to the appropriate person of the manufacturer/private labeler’s choosing.
Preparing for Database-Related Challenges
The new database will likely have a significant impact on the public image and operations of manufacturers and private labelers of consumer products. A thorough knowledge of its requirements and operation will allow manufacturers and private labelers to best respond to the novel challenges that will arise out of the database’s implementation.