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October 28, 2010

CPSC Posts Draft Final Rule Regarding Publicly Available Consumer Product Safety Information Database

The ACTA Group

The Consumer Product Safety Commission (CPSC) released an October 14, 2010, memorandum that includes its draft final rule concerning the publicly available, searchable database on the safety of consumer products, and other substances the CPSC regulates. The database is intended to provide a single point of access to reports of harm involving consumer products, manufacturer’s comments on the reports, and recall information. Under Section 212 of the Consumer Product Safety Improvement Act of 2008 (CPSIA), CPSC must create and maintain the database within 18 months after CPSC submits a plan to Congress. CPSC submitted its plan on September 10, 2009, and the database must be established by March 2011. Once the database is operational, CPSC intends to conduct an awareness campaign to encourage consumers to visit the database site and to search the available information. More information is available online.

Under the draft final rule, to submit a report of harm for inclusion in the database, a consumer must describe the product involved; identify the manufacturer of the product; describe the injury; verify that the report submitted is true; give CPSC permission to put the report in the database; and provide information that will allow CPSC to contact the submitter. Once CPSC checks the incident report to make sure it has the minimum required information, CPSC forwards the report to the manufacturer within five calendar days of receipt, where practicable, for review and comment. The manufacturer has ten business days to comment on the report, or submit a claim that the report contains confidential or materially inaccurate information, before CPSC posts it in the database.

Currently, CPSC collects incident reports pursuant to Section 5 of the Consumer Product Safety Act, and CPSC states that the reports in the database will be similar. The key difference, according to CPSC, will be the public availability of the reports on the Internet and the timing of their release. Currently, consumers and others can obtain the incident reports only through Freedom of Information Act requests. In contrast, reports submitted after CPSC implements the database will be available on the Internet. The current system also allows for longer time frames to review some types of incident reports. For example, CPSC’s National Injury Information Clearinghouse currently is allowed 48 days to send out reports to the manufacturer or importers, with an additional 15 days for manufacturers to provide comments. Generally, the database should contain qualifying reports of harm within 15 business days of receipt (five business days for the CPSC to send each report to the manufacturer, plus an additional ten business days for manufacturers to review the report and provide comments).

CPSC’s May 24, 2010, notice of proposed rulemaking defined “consumers” as including, but not limited to, users of consumer products, family members, relatives, parents, guardians, friends, and observers of the consumer products being used. CPSC has also expanded the definition in the draft final rule to include attorneys, investigators, professional engineers, and agents of a user of a consumer product. CPSC received comments in response to its proposed rulemaking urging that CPSC not interpret “consumer” so broadly as to include those persons not injured by the product or lacking firsthand knowledge of the product, manufacturer, or injury. CPSC responds in the draft final rule that the “plain statutory language” of the CPSIA does not require a submitter of a report of harm to have “firsthand knowledge.” CPSC states that it chose an interpretation of “consumer” that “comports with our experience in maintaining a database of consumer product incident reports.” According to CPSC, “as a practical matter,” it does not have the resources to ascertain whether every submitter has firsthand knowledge or actually used the product. CPSC notes that a manufacturer is free to post a comment indicating whether it knows if the commenter has firsthand knowledge, and that submitters “must provide truthful and accurate information and provide verification that they have done so.”

While some commenters suggested that CPSC add a notation to the incident report form regarding penalties for filing a false report, and that CPSC take an aggressive stance to discourage malicious and false information from being submitted, CPSC declined to add a reference to penalties. While CPSC will “take all appropriate actions” to remove materially inaccurate information and punish those involved if it receives false reports from the same entity or individual, CPSC states that some of its public hearing participants believe that such a statement could chill or intimidate a submitter from filing a legitimate report.

Regarding who may submit manufacturer comments, one commenter suggested that industry members, other than those specifically identified in the report of harm, should be able to submit comments. CPSC rejected this suggestion, stating that “based upon a plain reading of the statute,” it believes that the procedural requirements are unambiguous, and relate only to manufacturers or private labelers who are identified in a report of harm and allow only that manufacturer or private labeler to post a responsive comment. According to CPSC, it would not be in the public interest to allow industry members, other than the manufacturer or private labeler, to comment on a report of harm. CPSC does not believe that the database “was intended to be a forum for commentary between disinterested parties (i.e., persons who are neither the submitter nor the manufacturer or private labeler identified in the report of harm).”

A number of commenters objected to the ten day time frame for manufacturers to respond to a report of harm, noting that this places a heavy burden on manufacturers and asked CPSC to consider adopting provisions for exceptions and extensions. CPSC responds that it is bound by the time frame set forth in the CPSIA, and that it does not have the authority to establish a different time frame.

Consumer product manufacturers should prepare now to respond to the reports of harm in the database. Manufacturers will need to ensure that reports of harm do not include materially inaccurate or confidential and proprietary information. Manufacturers will also need to weigh whether to prepare comments on the reports of harm, for inclusion on the database.