On May 24, 2010, the Consumer Product Safety Commission issued a notice of proposed rulemaking that that would establish a publicly available consumer product safety information database. Section 212 of the Consumer Product Improvement Act of 2008 requires the Commission to establish a searchable database with information on the safety of consumer products or other products or substances that are regulated by the Commission. The proposed rule would interpret the various statutory requirements regarding the information in the database, submission of reports of harm, notice to manufacturers, publishing these reports and manufacturer comments, and how to handle inaccurate or confidential information.
The Commission has retained a database of customer product incidents for several decades. But, these reports had not been readily available to the public, nor have they been searchable. The database, which the Commission must establish no later than March 2011, makes reports both searchable and available to the public, creating issues for manufacturers, distributors, and sellers of these products that could have effects in the litigation arena. This article will highlight important sections of the proposed rule, which interprets the statutory requirements of the database.
Under the proposed rule, the database must include:
- Reports of harm;
- Certain information derived from the Commission; and
- Manufacturer's comments received by the Commission on a report of harm and requested for inclusion in the database.
Further, the proposed rule would allow the Commission to include additional information when adding the information would be in the public interest.
Who May Submit a Report
As proposed the list is rather extensive, and includes:
- consumers, which would include users of consumer products, family members, relatives, parents, guardians, friends, observers of a consumer product being used by another, and victims;
- local, State, or Federal government agencies;
- health care professionals;
- child safety providers;
- public safety entities; and
- others, which would include, but not be limited to, attorneys, professional engineers, investigators, nongovernmental organizations, consumer advocates, consumer advocacy organizations, and trade associations.
Contents of a Report
A report of harm must contain:
- A description of the consumer product sufficient to distinguish the product as a consumer product or item regulated by the Commission;
- The identification of the manufacturer or private labeler;
- A narrative that describes the harm or risk of harm. Though a report can be submitted without an incident of actual harm, the report cannot be about cost or quality of the item; and
- A verification by and contract information for the submitter.
Notification to the Manufacturer
When a report of harm is made, to the extent practicable, the manufacturer will receive a notice within five business days. If the manufacturer is registered with the online portal, it will receive the information electronically. If the manufacturer is not so registered, it will receive a report by mail to its principal place of business unless the Commission selects another equally effective method of transmission.
The Commission will publish a manufacturer's comment if:
- It specifically relates to a report of harm;
- Contains a unique identifier assigned to it; and
- Contains the manufacturer's verification of the truth and accuracy of its comment and consent to publish. The manufacturer must also affirmatively request publication of the comment.
Comments may be sent via an online manufacturer portal where the manufacturer can register to submit comments, via electronic mail, or via regular mail. However, at its discretion the Commission can choose not to publish a comment received after one year or which would not be in the public interest. The Commission may also limit the data size of comments.
Materially Inaccurate Information
The proposed rule also provides for the removal of materially inaccurate information. It outlines steps that manufacturers and others may take to have the Commission review and remove this information.
Potential Issues for Manufacturers
The database and the proposed rule create several potential issues for manufacturers. Manufacturers will have to consider the negative implications that a report of harm will have on their businesses. Further, if a report of harm is submitted, they will have to determine whether or not to submit a responsive comment as well as the contents of that comment. Additionally, manufacturers must be able to identify and respond to any materially inaccurate information contained in a report of harm.
The reports could also create issues in the litigation arena for manufacturers. For example, the reports, subject to evidentiary issues, may be argued as "notice of possible defects" in the context of a products case be it negligence or strict liability, to the extent relevant.
Members of Buchanan Ingersoll & Rooney's Product Liability Practice Group would be happy to provide more information about the proposed rule and its implications.