On March 11, 2011 the Consumer Product Safety Commission (CPSC) will launch a publicly available database that will allow consumers and others to submit reports of harm -- i.e., reports of injury, illness, or death, or risk thereof -- related to the use of a consumer product or substance within the jurisdiction of CPSC (Reports). (A trial “soft launch” of the Database began on January 24, 2011.) A Report that contains the required minimum information and the submitter’s verification of truth and accuracy and consent to publish will be posted in the Database 10 days after CPSC sends the Report to the product’s manufacturer (defined to include an importer) or private labeler (hereafter, “Manufacturer”), unless CPSC determines during that time period that the Report is materially inaccurate or contains confidential commercial information.
Consumers will be able to search the Database and review safety information about products they own or may be considering buying, and anyone -- including consumer advocates and plaintiff’s counsel -- will be able to download Reports for review and analysis. The validity of the information is not assured, however, and the public may simply assume that Reports are true and accurate despite a disclaimer from CPSC. Further, the submitter’s allegations will appear in the Database unchallenged and unsubstantiated -- unless the Manufacturer chooses to publish comments with the Report, contact the submitter to attempt to verify the Report, and/or object to inclusion of information as materially inaccurate or confidential.
What should companies do to prepare for the launch of the Database?
- Decide whether to register with CPSC to receive e-mail notification of Database Reports and to provide any comments or objections through the Business Portal that CPSC has established. Electronic notification maximizes the time available for the Manufacturer to verify and respond to the Report before it is published, because the deadline for CPSC to publish a Report starts when CPSC sends it, rather when the Manufacturer receives it. If a Manufacturer does not register, CPSC will send Reports by US mail to the firm’s principal place of business, and the Manufacturer could have considerably less than 10 days to respond before publication. In addition, submitting comments and objections through the Business Portal will help ensure that they are timely received and considered by CPSC before CPSC posts a Report to the Database.
- Identify who will be the primary contact person and backup(s) to receive Reports. The primary contact person and additional users will receive e-mail notifications containing the incident descriptions in the Reports and will be able to view the full Reports through the Business Portal. The primary contact person can specify which additional users may submit responses on behalf of a company.
- Decide whether to identify for CPSC your company’s brands or those under which you manufacture for others. Providing such information to CPSC will help to assure that Reports are sent to the correct manufacturer or private labeler for review and response.
- Consider whether, as a matter of policy, your company will respond, even absent an objection for material inaccuracy or confidentiality, (a) on a case-by-case basis, or (b) almost always, and whether the company will consent to CPSC’s posting of the company’s comments to the Database. These options can have significant legal implications in product liability litigation that should be considered in advance.
- Create a process and timeline for internal review of Reports, to decide whether to contact consumers to verify information in the Reports (if the consumer consents to CPSC providing his/her contact information to the Manufacturer), to draft comments and assertions of material inaccuracy or confidentiality, to decide whether to consent to CPSC’s public disclosure of such comments or objections, and to submit objections and comments to CPSC.
- Plan to consider Database Reports along with other available information about a product when determining whether there is a duty to notify CPSC under section 15 of the CPSA.