On March 11, 2011, the Consumer Product Safety Commission ("CPSC") launched its much anticipated online product safety database (www.saferproducts.gov). See our August 26, 2010 article, "Consumer Product Safety Commission Proposes Rules for Report of Harm Database." The database was launched in response to Section 212 of the Consumer Product Improvement Act of 2008, which required 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 new online database makes reports of consumer submitted product incidents 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. As an update to our August 26, 2010 article, this article will describe the Consumer Product Safety Commission Information Database and its effects on manufacturers.
As required by the final rule, the database includes:
- reports of harm
- certain information derived from the Commission
- manufacturer's comments received by the Commission on a report of harm and requested for inclusion in the database.
The database also displays manufacturer recalls, and allows searches to be narrowed based on that criteria.
Reports of Harm and Responses by Manufacturers
As detailed in our August 26 article, an extensive list of consumers, entities, and professionals may submit reports of harm, which must include a description of the product and other relevant information about the incident as well as a verification of its truth and accuracy.
To the extent practicable, the respective manufacturer receives a submitted report of harm within five business days after its submission to the CPSC. The manufacturer will receive this report either by mail or electronically, depending on whether it is registered with the online portal. The report is published 10 days after manufacturer's receipt of notice. This gives the manufacturer a chance to respond and have its comments included in the file.
The Commission, at its discretion, can determine whether to publish the comment if it would not be in the public interest to do so. Generally though, comments that specifically relate to the report of harm are included if they contain the unique identifier assigned to the manufacturer by the CPSC and contain 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.
Materially Inaccurate Information
The Federal Regulation provides for the removal of materially inaccurate information alleged within a report or manufacturer's comment. Any person or entity reviewing a report of harm or a manufacturer's comment may request the removal of such, or portions thereof, but is required to bear the burden of proving that the information is materially inaccurate. This requires:
- identifying the report to which the request for removal pertains
- identifying the exact portions claimed to be materially inaccurate
- stating a basis for such allegation
- providing evidence
- stating the relief sought (removal of the entire report or just a portion)
- stating whether the person submitting the allegation of material inaccuracy is authorized to make such claims on behalf of the person or organization concerned. 16 C.F.R. § 1102.26 (2010).
Effects on Manufacturers
The database creates several potential issues for manufacturers. Manufacturers need to consider the negative implications that a report of harm will have on the sale and marketing of their product. 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, the failure to comment and/or the comments of themselves possibly being trial evidence in some future case regarding the particular product. Additionally, manufacturers must be able to identify and respond to any materially inaccurate information contained in a report of harm. Even where the information contained within a report of harm is accurate; it may negatively impact a manufacturer's reputation or marketing image through unfavorable exposure. In one CPSC Information Database report, a man uploaded a picture of an injury he sustained from using a wine opener. He alleged that the injury was caused by the wine opener's defective design, and filed a report of harm. Even though the product had already been recalled, this type of illustrative report can further tarnish a manufacturer's name.
However, and as hinted to above, 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 liability case be it negligence or strict liability, to the extent relevant. Plaintiffs' attorneys may begin to use the database to locate substantially similar product defects – even if such reports are materially inaccurate reports that were never challenged. There is the possibility that manufacturers' comments to reports of harm, if not submitted with care, could be used as party admissions at trial.
Recent Controversy Surrounding the CPSC Information Database
As recently as July 2011, the Los Angeles Times reported that the Republican-controlled House Appropriations Committee approved a spending bill that will cut funding for the CPSC database. The database has come under scrutiny for the potential negative impact it may have on the economy, its potential for abuse by plaintiffs' attorneys, as well as the government funding required to operate it.
Members of Buchanan Ingersoll & Rooney's Product Liability Practice Group would be happy to provide more information about the CPSC online database and its implications.