COMING TO A COMPUTER NEAR YOU:

UNVERIFIED COMPLAINTS SOON AVAILABLE ONLINE

Congress has required the CPSC to create a publicly accessible, searchable, consumer product safety database.  It has taken some time, but the CPSC is now creating the database, and it will soon be online.

The importance, discussed at some length below, is that consumers can now enter information (true or not, documented or not) about safety concerns, that will be available to anyone with a computer and internet service.  Further, the responses to any such report will also be publicly available.  Thus, the response of a manufacturer or seller of any consumer product becomes even more important.  It is no longer a reply to a query, to be reviewed by the CPSC, but will be publicly available.

The database will include consumer reports of “harm”.  Harm is broadly defined, and includes injury, illness or death, or the risk of injury, illness or death.  .

The CPSC database will include all reports of harm along with the manufacturer’s comments and “any additional information the CPSC determines to be in the public’s interest.”

This, of course, puts the seller and manufacturer in a trick bag.  If you show that your design is not harmful, including the design drawings or test results (which may be proprietary or confidential), the CPSC may include this information if it is “in the public’s interest.”  But if you do not include such information, it will be difficult to show that your product is not “harmful.”

In theory, confidential information should be redacted by the CPSC (but you will be relying on the government to make such redactions).

The law provides that the CPSC will provide the consumer’s incident report to the manufacturer and then the manufacturer may submit comments in response, including whether any of the information is confidential or materially inaccurate.  The CPSC will

redact information that it agrees is confidential, and must notify the manufacturer if it disagrees.

The CPSC must publish the consumer’s “report of harm” within ten (10) days of transmitting it to the manufacturer.  In other words, from the time the CPSC mails it to you, it will be posting the report of incident for public review within ten days, regardless of whether or not you have responded, and regardless of what your response says.

Thus, while you have more than 10 days to respond, the public information (the incident report) will be posted regardless of whether you have responded.  If you have a strong response, therefore, it behooves you to act very quickly to put together an appropriate response so that it is legally appropriate, addresses the issues, and meets all requirements in time to be posted with the incident report.

In addition, all further responses and activity will also be available online, provided that the CPSC believes that it is “in the public interest.”

Previously, the CPSC file on any incident (often over 100 pages long in a simple matter even without a defect) would be available only through a freedom of information (FOIA) request.  When the CPSC received such a request, it would then send to the manufacturer a letter with the documents it proposed sending to the requester.  The manufacturer would have 20 days to respond as to whether the documents are confidential or should be withheld for any other reason.

Those days appear to be over.  It now appears that the information in the file will ALL be available to the public on a searchable internet database, unless the CPSC makes a determination at the time of receipt that the information is confidential or is otherwise privileged.

The Impact The practical impact of the on-line database is substantial, and the lessons seem to be as follows:

1. An appropriate response to an incident should address the concerns, but be mindful that any response could prompt further CPSC action.  Thus, consultation with professionals (including legal counsel familiar with CPSC laws, regulations, and practical realities) is essential.  However, at least a preliminary response should be drafted and sent to the CPSC so that it can be included with the Incident Report.  One fear of those who do not trust government is that the initial complaint will be timely posted, but that responses will be posted when the civil servants staffing the CPSC “get around to it.”  A fast response is intended to minimize this risk, so that the same government employee will save time and effort by posting both the initial report – and your response – at the same time.

2. When In Doubt – Mark Documents “CONFIDENTIAL.” Other than you r initial response (which will by its nature be general), any documents that include actual designs, sales figures, proposed modifications, or other information that you may consider Proprietary or Confidential, should be CLEARLY MARKED on EACH PAGE as being Proprietary and Confidential.

There are (theoretically) severe penalties on government employees who divulge confidential information.  It appears that those laws will apply despite the new publicly accessible database.

Thus, when in doubt, mark the document “Confidential and Proprietary.”  Think about it this way.  Your designation will require a government civil servant to consider the document as being Confidential and Proprietary.  Now, the employee might utilize his initiative and decide that the document was NOT confidential, and that the designation was inappropriate.  But, that same employee knows that, if his actions, taken of his own initiative, are wrong, and proprietary or protected confidential information is divulged, then he (or she) can, personally, be responsible for such action.  There is not only no governmental immunity; there are civil and criminal penalties for such action.

So, be proactive, and mark documents that you would not want the public to see, as being PROPRIETARY and CONFIDENTIAL.

3. Monitor The Site.  Once the site is up and running it is important that you monitor the site once you receive an incident.  You need to ensure that your initial response is timely included in the database, and that the information is accurate. 

In many ways, the CPSC can be like the IRS.  It is a government bureaucracy that can make your life miserable. But it is worse.  The public has no right to know about an IRS audit.  Without real vigilance, the CPSC database could easily become a source where complaints, whether accurate or not, are available to the public along with  your confidential information available, to be reviewed by those scum sucking bottom dwellers that we affectionately refer to as ambulance chasers.

RRS has experience addressing CPSC issues for clients and is available to help you monitor the CPSC database and respond to any information posted about your products or company.  If you are interested please give Paul a call.

ACTIVITY REPORT

Over the past quarter RRS closed 20 claims  including four lawsuits and 16 non-litigated claims.

Three of the lawsuits were dismissed with no payment, and the other was settled early in the litigation for $5,000.  The claimant had sustained injuries to his knees (two surgeries) and two separate disk fusions in the back.  The settlement was less than his physical therapy bill, and avoided attorney fees and expert costs.

Of the 16 claims that were closed, 18 were closed with no payment.  12 were closed without any payment, 3 were settled (without payment of money, but we did provide either a replacement ladder or a discounted ladder in exchange for a release), and one claim was settled – for $500.

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