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Finally! A Manufacturer “Complains” Back to CPSC About Its On-Line Database of Consumer Reports

Date: 11/29/11

DATABASE OVERVIEW:
After more than two years of heated debate, the CPSC finally launched www.SaferProducts.gov, the website which hosts a publicly searchable database of consumer reports regarding the safety of products regulated by the CPSC. The database was mandated by the Consumer Product Safety Improvement Act of 2008 (CPSIA). Specifically, the CPSIA required the CPSC to establish a database of consumer and other products regulated by the Commission that have been reported to be unsafe. The database would publicly available, searchable and accessible through the Commission’s website.

The Act provided that in order for a consumer report to be published to the database it must contain eight specific pieces of information and be submitted by a person authorized to submit reports. An often heard critique of this approach is that the definition of a “submitter” is too broad and eliminates the need for first hand knowledge of the defective product. Specifically, the submitter does not have to be the person allegedly harmed by the product. The submitter can be a consumer, an agency, a health care professional, a child service provider and/or public safety entities. The definition of a “consumer” is so broad that it encompasses users of the product, family members, relatives, parents, guardians, friends, attorneys, investigators, professional engineers and even observers of the products being used. Manufacturers worry that the absence of a requirement of first hand knowledge will lead to inaccurate reports and misidentification of products.

In order for the report to be published to the database, the submitter is required to provide eight pieces of information: (1) description of the consumer product sufficient to distinguish the product as a product or component part regulated by CPSC; (2) identity of the manufacturer or private labeler by name; (3) description of the harm related to the use of the consumer product; (4) approximate or actual date of the incident; (5) category of submitter; (6) submitter’s contact information; (7) submitter’s verification that the information contained is true and accurate; (8) and consent to the publication of the report. If the report does not have all of these components, the CPSC will not publish it and is not required to follow up with the submitter to seek the missing information. 

Once the CPSC deems a report to contain the required information, it has five days to send the report to the manufacturer or private labeler. The manufacturer has ten days to respond if it wishes. The manufacturer can leave a general comment, allege that the report contains materially inaccurate data or that it contains confidential business information. The CPSC then determines whether it will publish the report in full, part or not at all.

GAO ISSUES CRITIQUE:
The first critique of the database was released by The United States Government Accountability Office (“GAO”) in October 2011. The GAO found that only 38 percent of the reports submitted to the CPSC contained the required information for publication. Of these, 89 percent were eventually published. More alarmingly, only 37 percent of the published reports were submitted by the person alleged to have been harmed. The GAO’s main criticism was that the submitter is not required to provide a serial or registration number that could prevent misidentification. Legislation passed in August now requires that the CPSC follow up with any submitter who does not provide this information and either request the serial number or a photograph of the allegedly unsafe product.  While this is a step in the right direction, these fields are still optional on the reporting form.

COMPANY DOE FIRES BACK:
On October 17, 6 days after the GAO issued its critique of the database, an anonymous company filed a lawsuit in Maryland Federal Court against the CPSC and its Chairwoman, Inez Tenebaum. In addition to the complaint, Company Doe filed a Motion for Leave to Seal the case in its entirety and proceed under the pseudonym, Company Doe. The Company seeks to prevent the CPSC from publishing a report submitted by an agency regarding alleged harm suffered by a minor as a result of the use of a product manufactured by the Company.

In its motion to seal the record, the Company argues that disclosure of its name in this proceeding would have the same effect on the Company as publication of the report, essentially linking the Company’s name and product to unfounded safety concerns. Further, the Company asserts that there are others’ privacy interests at stake as well. The motion highlights that one of the major issues with the database is that the submitter does not have to be the person alleging harm. In this case, the submitter was an unnamed agency, not the child or the family of the child allegedly harmed. The Company argues that the non party child and its family should not be subject to a public proceeding. Finally, the Company argues that the Commission and its Chairwoman are already aware of the Company’s name and arguments as to why the report should not be published; they will not suffer any harm should the motion to seal be granted. The Company also requests that should the motion to seal be denied, it has the right to re-file its document anonymously and/or reconsider its filing in its entirety.

The Company acknowledges that public interest often supports the need for cases to proceed openly, but argues that, the public interest favors granting the motion and allowing the Company to proceed anonymously. Three public interest groups strongly disagree with this contention. Public Citizen, Consumer Federation of America and Consumer Union filed an opposition to the Company’s motion. According to their press release , the consumer groups argue that keeping the case sealed would violate the public’s right of access to court records. The CPSC has stated that it also plans to oppose the Motion to Seal, but has yet to file its opposition. It should be noted that the right of access to court records is not considered absolute, but is subject to the weighing of competing interests.

WHAT THIS MEANS GOING FORWARD:
As a case of first impression involving a new and untested database, this is definitely one to watch. The Court’s ruling on the Motion to Seal will likely have a major impact on both the database and the industry’s interests. If the court grants Company Doe’s motion to seal and proceed under a pseudonym, other companies may be inclined to follow suit. Even if the Court denies the motion to seal but grants the company the right to proceed under a pseudonym it is likely that other companies will be pleased with the outcome. The cloak of anonymity has its appeal; a company name will not be subjected to negative publicity before any potential problem with the product has been definitely established. Nevertheless, in the age of the internet, the press or interested third parties may still be able to ferret out the company name based on the allegations in the complaint. To some companies this threat may be worth the risk, when weighed against the potential for unfounded product and company criticism.

The Court’s ruling should be announced by year’s end and no matter the outcome will no doubt generate significant reaction on all sides. 

Article By:
Robert J. Kelly, Managing Partner 
Littleton Joyce Ughetta Park & Kelly LLP
robert.kelly@littletonjoyce.com


Christine M. Delaney, Attorney 
Littleton Joyce Ughetta Park & Kelly LLP
christine.delaney@littletonjoyce.com

 

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