On March 11, 2011, the Consumer Product Safety Commission (“CPSC”) will launch its new searchable, publicly available database that will allow consumers and others to file online safety-related reports concerning the more than 15,000 consumer products under the CPSC’s jurisdiction. This new database potentially poses significant business and legal challenges for manufacturers, importers and private labelers of consumer products, most notably because these reports will typically be publicly published within 15 business days of their submission and after only minimal review by the CPSC. The public nature of the database also presents an opportunity for the plaintiffs’ bar to find new litigation targets. However, by establishing an effective infrastructure to quickly investigate and respond to reports, businesses can best position themselves to defend against meritless or fraudulent complaints and take corrective action as necessary.
Section 212 of the Consumer Product Improvement Act of 2008 mandates the creation of a publicly available, searchable database accessible through the CPSC’s website. Pursuant to that mandate, the CPSC has developed and “soft” launched the database at www.saferproducts.gov. Although the CPSC has collected and responded to consumer safety-related complaints for decades, the new database changes the current landscape by allowing these reports to be publicly available more quickly and requires businesses to respond promptly.
Submission of Safety-Related Reports
The database will only include “reports of harm,” and will not publish complaints about the quality or price of products. Reports of harm include not only reports of actual injury, illness or death, but also reports of the risk of injury, illness or death posed by a product.
When lodging a report, the submitter must identify itself as either a consumer, healthcare professional, child care provider, public safety entity, medical examiner or coroner, or local, state, or federal government entity. Consumers are broadly defined to include “users of consumer products, family members, relatives, parents, guardians, friends, attorneys, investigators, professional engineers, agents of a user of a consumer product and observers of the consumer products being used.” 16 C.F.R. § 1102.10.
In order to be eligible for publication in the database, in addition to the category of the submitter, the report must contain the following “minimum information”:
- Description of the product
- Identity of the manufacturer or private labeler
- Description of harm
- Date of incident
- Contact information of the submitter
- Verification that information submitted is true to the best of the submitter’s knowledge
- Consent to publish the report
Although this information must be submitted for the report to be published, the contact information, verification and consent will not be publicly published.
CPSC Review and Transmission of Reports of Harm
The CPSC reviews a report only to ascertain whether it contains the required minimum information. Once it has determined that a report meets these requirements, the CPSC then transmits the report to the manufacturer, private labeler or importer identified in the report within five business days, where practicable, at the principal place of business or other contact information the CPSC may have on file. Alternatively, the CPSC will send reports electronically to businesses that have registered on the CPSC’s online “Business Portal.” Through the Business Portal, a business can designate a primary contact person and an unlimited number of additional contacts to receive reports.
The CPSC then publicly publishes the report of harm in the database 10 business days after transmitting the report to the manufacturer, private labeler or importer.
Responding to Reports of Harm
The CPSC will publish a report of harm containing the required minimum information 10 business days after transmitting the report regardless of whether it receives any response from the manufacturer, private labeler or importer. Additionally, the CPSC does not investigate the accuracy of the report, but only reviews for the requisite minimum information.
Manufacturers, private labelers and importers are permitted to submit responses to reports of harm for publication in the database at any time, but in order for responses to be published at the same time the report is published, it must be received by the CPSC with enough time prior to the 10 business day deadline for publication to provide the CPSC sufficient time to review the response.
Manufacturers, private labelers, importers and anyone else may make a claim that a report contains material inaccuracies or confidential information. The CPSC will not withhold publication of the report of harm, unless it makes an actual determination that the report contains material inaccuracies, but it will not delay publication of the report pending its review. The CPSC will, however, redact portions of a report claimed to contain confidential business or trade secret information, and will withhold publication of such information pending that review.
Implications for Businesses
Manufacturers, private labelers and importers must quickly respond to reports of harm in order to protect against the publication of its sensitive business information and in order to have a response published contemporaneously with the report of harm. It will be essential to a business’ rapid and effective response to establish a system of notifying its key internal personnel and outside counsel and others to investigate and respond to reports of harm, work with the CPSC and police the database to mitigate to the extent possible the plaintiffs’ bar use of the database against it.