The Consumer Product Safety Commission is in the process of reviewing comments submitted on the impending consumer product safety information database. The agency has posted the comments received.
No surprise, those consumer-oriented interest groups in favor of a database generally praise what CPSC is proposing to do, and industry groups reiterate concerns they have about the implementation of the database concept.
As we have posted before, even back to the time Congress was considering this provision, there remain concerns about the accuracy and confidentiality of reports of alleged injury submitted and conveyed back tot he public in the database; and the CPSC remains vague about how it will provide “due process” for product sellers who could find the database being used against them even when it contains erroneous, duplicate, or confidential data. for manufacturers and private labelers. There seems scant attention to legitimate issues of a manufacturer’s goodwill and reputation, to the costs of unnecessary panic among product consumers, and the mischief that plaintiffs’ lawyers might cause with unwarranted increase in litigation against manufacturers.
Organizations such as the National Association of Manufacturers noted that false or inaccurate information does not serve the interests of consumers. Congress knew that counterfeit products are too common in the marketplace and may be confused with real brand name products. Manufacturers and private labelers of products have a legitimate interest in protecting their brands from inaccurate, defamatory, and intentionally false statements and in protecting trade secret and confidential commercial information. Accordingly, a request for confidential treatment “is not a matter that should be left to the discretion of a CPSC staffer,” NAM said.
Industry groups also worried about the CPSC’s unduly broadening the list of people who can submit a report to the database. Broadening the list of reporting parties does not serve the Congressional interest in providing accurate information to consumers about reports of harm. It is obvious why parties included in CPSC’s broad proposed listing of “others” may not be reliable reporters of an incident. CPSC has largely added parties who are more likely to have an agenda that goes beyond merely advising CPSC of an incident. The possibility that someone might attempt to seed the database with inaccurate or misleading information to provide ostensible support for lawsuits is a real concern.
So far, the Commission has not ensured that the CPSC will deal with accuracy challenges in a timely manner. Conceivably, busy CPSC staff might take weeks, months, or even years to determine whether information that is posted on the database is materially inaccurate. CPSC has also set up a catch-22 procedure for handling such challenges. CPSC has asked firms who wish “expedited” treatment to submit no more than five pages including attachments to show a problem. However, CPSC has simultaneously set a standard of “significant evidence” to support claims that information is materially inaccurate. To provide sufficient evidence to support a challenge, a manufacturer may need to provide more than 5 pages of information; however, if they do so, CPSC will publish first, and resolve the challenge at some indefinite time in the future.
These parts of the proposal likely will not withstand judicial scrutiny, nor should they have any credibility with the public.