THE CPSC INFORMATION DATABASE GOES ONLINE NEXT MONTH!

For the past year RRS has been telling clients that the CPSC database is coming and that time is fast approaching.  Notwithstanding several delays the time has finally arrived. It is now scheduled to go active online March 11, 2011 and with it comes a new tool for plaintiffs and their attorneys to use against manufacturers, importers, and private labelers (“Manufacturers”).  The searchable consumer product safety complaints database is the result of the Consumer Safety Protection Improvement Act (CPSIA) which Congress passed in 2008 in response to issues primarily related to imported products especially children’s toys that contained unsafe levels of lead.  As usual in their zeal to address one high profile problem the legislators cast a wide net.

One aspect of the CPSIA of 2008 directs the CPSC to provide a way for consumer complaints regarding products subject to CPSC jurisdiction to be available in a searchable public database. The database will be searchable by manufacturer and product name.  It is designed to be very user friendly. Reports of harm may be submitted by users of products and their attorneys, consumer groups and those who merely observe others using products.  In other words, anyone, particularly anyone with an agenda can submit a report. This database is a veritable gold mine for some and minefield for many.

The database will contain “reports of harm” which can include any injury, illness or death or even simply the risk of injury, illness or death relating to the use of a consumer product. Reports of harm must include the following information: description of the consumer product; identity of the Manufacturer; description of the harm; incident date; category of the submitter (includes: consumers, governmental agencies, healthcare professionals, child care service providers and public safety entities); contact information verification and consent. There is no requirement that the CPSC verify these reports in any way.  However, the CPSC is required to transmit the report to manufacturers within 5 business days of receiving it.  The burden is exclusively on manufacturers to correct false and misleading reports.

Recognizing that some complaints are not well founded, the rules afford an opportunity for the manufacturer to respond. For the CPSC to consider the response before the complaint is made public, the rules require that the Commission receive a manufacturer’s input within 10 days of the CPSC sending the notification. Otherwise, the complaint becomes public regardless of its veracity.

Recognizing that the decked is stacked and the CPSC is holding all the aces it is imperative that Manufacturers register on the CPSC’s Business Portal.  Doing so will allow Manufacturers to receive electronic notification of any complaint.  Manufacturers that do not sign up will receive notice by mail, however, for a response to be considered it still must be received subject to the ten day rule.  Registration is online and allows companies to designate primary and secondary contacts, and affords Manufacturers to opportunity to respond in the timeliest manner.  Registration can be done at http://www.saferproducts.gov.

Even if a consumer’s report of harm is materially inaccurate, and a manufacturer submits a comment in a timely manner, the CPSC will still publish a report if no determination has been made before the ten day deadline.  The Commission defines material inaccurate information to mean that is must be false or misleading and be substantial and important as to affect a reasonable consumer’s decision making about the product.

This applies to both consumer reports and to manufacturer’s comments.

Given the rules of this game, time is clearly of the essence.  However, Manufacturers comments will be published with the consumer product safety complaint as long as the correct procedures are followed.  The CPSC procedures requires that the comment must: 1) relate to specific information within the report; 2) state the unique identifier provided by the CPSC; 3) verify that the report and comments were reviewed by the manufacturer and are true and accurate; and 4) the manufacturer must affirmatively request publication of the comment.

Consistent with past Commission practice Manufacturers may request that portions of a report be designated confidential.  Once again the burden is on the manufacturer who must follow specific procedures in order to gain confidentiality.  The manufacturer must 1) specify which portions should be confidential and demonstrate harm if released; 2) submit the request prior to the 10 day deadline and 3) agree to assist the Commission in the defense of any judicial proceeding that thereafter might be brought to compel the disclosure of said information.

Needless to say this system will be onerous to many manufacturers and the potential for it to be abused will be great.  RRS can help you meet the challenge of responding to CPSC reports in a timely and effective manner.  We offer CPSC consulting and other services that include registration, assistance in monitoring for complaints, follow-up and response, as appropriate. Please contact Paul Junius if you are interested in taking a proactive approach to managing this source of government sponsored public exposure.