Complaints about the safety of consumer products might be about to go viral.
That's because the Consumer Product Safety Commission will soon make a database of safety-related complaints about the products it overseas publicly available online at SaferProducts.gov.
Until now, the only way the public could get information about product defects was if a product was recalled. Accessing additional information about those safety complaints meant filing a public records request with the CPSC, which overseas the safety of roughly 15,000 consumer products.
“Through Saferproducts.gov, the CPSC will share more information about dangerous products than we have been allowed to do in years past,” Robert Adler, vice chair of the CPSC, said in an online Webcast to provide details on the database. “This is a change that I think and I believe will lead to safer products and, therefore, safer consumers.”
It could also lead to higher litigation risk for corporations, since the public will get a better glimpse into what other people are complaining about. Some categories of products will be excluded from the CPSC database, including food, drugs, medical devices, cosmetics, tobacco, and automobiles and tires. Those products are all overseen by other federal agencies.
The database will officially launch on March 11. It is a delayed reaction to passage of the Consumer Product Safety Improvement Act of 2008, which required the CPSC to give consumers better access to information about the products they use.
Under the new system, a complaint must include eight minimum requirements to be published in the database:
Description of the consumer product;
Identity of manufacturer or private labeler;
Description of harm or potential harm;
Incident date or approximate date;
Category of submitter;
Contact information of submitter;
Verification by the submitter that the information is accurate; and
Consent from the submitter to publish the report in the database.
Additionally, the reports must demonstrate defects that could cause injury or death. Complaints about poor product quality or customer service will not be included.
The database is already causing a lot of handwringing among industry groups, who argue that it has the potential to serve as a vehicle of misinformation for manufacturers' products.
One of the biggest concerns is that the regulation allows “virtually any entity to submit complaints to the database,” says Jenifer Keenan, counsel at the law firm Alston + Bird. That list includes consumers, government agencies, healthcare professionals, childcare providers, and public safety entities. The definition of “consumers” and “public safety entities,” however, has been expanded to include attorneys, consumer advocates, trade associations, and others.
“As a result, the database will be filled with bogus reports inspired by political or financial motives, rather than safety,” Rosario Palmieri, a vice president at the National Association of Manufacturers, warned in a written response to the plan published online.
“You're going to have to put a comment out on every report you get. Otherwise, that might be taken as a sign that there's nothing that you have in response to these complaints.”
—Jill Deal,
Partner,
Venable
Because the CPSC won't police reports before they are published, “there's a real concern that the database doesn't distinguish between complaints that are submitted by a consumer versus complaints that are submitted by a plaintiff's lawyer who is motivated to drum up business, and that really opens up the possibility for abuse,” Keenan says.
The database will include a disclaimer from the CPSC that the agency cannot guarantee the accuracy of the complaints. A nice gesture, but critics argue that the average consumer will still perceive the database to be reliable, because it has the federal government's imprimatur.
Adler has responded to industry concerns about the validity of the complaints. “It will be administered in a very thoughtful and balanced way with ample due process protections,” he said during the Webcast. “You're going to find more due process in our database than any other safety agency has with its database.”
Challenging Complaints
Companies will have a mechanism to file responses to complaints, but some worry that the permitted response time is too short. After a complaint is filed, the CPSC has five business days to send the report to the manufacturer, which then has 10 business days to file a response.
Manufacturers also worry that the database could create a paperwork headache, since ignoring complaints could be seen as a tacit admission of guilt. “You're going to have to put a comment out on every report you get,” says Jill Deal, a partner at law firm Venable. “Otherwise, that might be taken as a sign that there's nothing that you have in response to these complaints.”
Companies can challenge reports they believe are false or that disclose trade secrets or other confidential business information. The CPSC must then decide whether to remove or, more likely, revise the report. If the manufacturer chooses to publicize its rebuttal—as opposed to just sharing it with the CPSC—it also has the option of including it along side the Report of Harm in the public database.
The 10-day deadline only applies if the company wants its response submitted along with the Report of Harm, said Ming Zhu, database project manager at the CPSC. Comments submitted after the 10-day deadline will still be posted, but not at the same time as the report. Additionally, manufacturers are not limited to submitting one comment; they can come back and make multiple comments.
REPORTS OF HARM
The following information from Alston + Bird provides details on who may submit reports of harm:
(1) Consumers
Users of consumer products
Family members
Relatives
Parents
Guardians
Friends
Attorneys
Investigators
Professional engineers
Agents of a user of a consumer product
Observers of the consumer products being used
(2) Local, state, or federal government agencies
Local government agencies
School systems
Social services
Child protective services
State attorneys general
State agencies
Federal agencies
(3) Health care professionals
Medical examiners
Coroners
Physicians
Nurses
Physician's assistants
Hospitals
Chiropractors
Acupuncturists
(4) Child service providers
Child care centers
Child care providers
Pre-kindergarten schools
(5) Public safety entities
Police
Fire
Ambulance
Emergency medical services
Federal, state, and local law enforcement entities
Other public safety officials and professionals, so long as they have a public safety purpose
Source
Alston + Bird.
Even if the manufacturer chooses not to submit the report with its rebuttal, the report will still be published in the database within 15 business days after the CPSC receives the report.
That essentially means companies have 15 days to investigate a report, make an internal decision whether to comment, draft the comment, and then get it approved and submitted. “That's pretty difficult to do, and certainly a company won't be able to adequately investigate a matter within that 10-day period,” Keenan says.
If the CPSC discovers that it notified the wrong company, the 10-day window for comment will be reset. “If we cannot find the correct manufacturer, then the report will not be posted,” Zhu explains. In the event that the report has already been published, it will be taken down, he adds.
Prepare Yourself
Companies should prepare for the database's arrival first by registering on the CPSC Business Portal (SaferProducts.gov). “We are definitely encouraging all of our consumer product manufacturing clients to register with the database,” Keenan says.
The CPSC will send an electronic notification to registered companies if an adverse report has been submitted about one of its products. Manufacturers that don't register will receive notification through the mail, effectively reducing the amount of time they have to challenge a report.
A second measure companies should take to prepare for the launch of the database is to designate a “primary contact,” as required by the CPSC. This will be the person who receives the reports of harm, and that person may submit comments on behalf of the company.
Additionally, companies should continuously monitor the database once it is launched. “Because of the untrustworthiness of much of the data that the database is going to generate,” Deal says, “manufacturers and private labelers are going to have to put a separate person aside just to monitor the database and look for suspect complaints.”
Deal advises companies to prepared to file complaints with CPSC if they find data that is inaccurate in any way. “You have to be proactive.”
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