Details of CPSC Proposed Rule on a Public Product Safety Database

Under the proposed rule, the Web site database would include reports of harm from consumers, manufacturer comments on these reports, information regarding recalls, and any additional information that CPSC determines to be in the public interest. The database is scheduled to be established by March 2011.¹

Comments on the proposed rule are due by July 23, 2010.

Reports of Harm Would be Submitted by Public

Reports of harm² would be submitted by the public through the “public portal” of the CPSC’s Web site on an electronic incident report form specifically developed for this purpose. (Information could also be submitted through a CPSC call center, email, etc., as long as the same submission requirements were met.)

Could be submitted by consumers, others. Reports of harm could be submitted by consumers including, but not limited to, users of consumer products, family members, relatives, parents, guardians, friends, and observers of the consumer products being used. In addition, the following entities could submit reports of harm: government agencies, health care professionals, child service providers, public safety entities, and “others” (attorneys, consumer advocates, investigators, etc.).

Requirements for publication. A report of harm would have to include the following information in order to be published in the Website database: (i) description of the consumer product (such as brand name, model, serial number, etc.) (ii) identification of the manufacturer (includes importer) or private labeler; (iii) description of the harm; (iv) submitter’s contact information (though this would not be published); (v) verification that the information is true and accurate to the best of the submitter’s knowledge; (vi) consent to publish the report in the database.

CPSC would notify mfr w/in 5 days. Before publishing a report of harm in the database CPSC would send it to the manufacturer identified in the report. This information would be transmitted within five business days, to the extent practicable. CSPC would not send photographs, medical records, or the name and contact information of the submitter if he/she did not authorize this information to be shared. The information would be sent to the manufacturer in the manner they requested during their registration process or by mail if the manufacturer is not registered.

CPSC would publish report 10 days later. CPSC would generally publish reports of harm in the Website database on the tenth business day after transmitting them to the manufacturer.

Manufacturers Could Comment on Reports of Harm

A manufacturer (which includes importer) or private labeler³ (collectively, manufacturer) would be able to submit comments for publication in the database related to any report of harm which identifies them.

Submission via mfr portal. Manufacturers who register with CPSC (by providing and maintaining updated contact information, etc.) would be able submit comments through the “manufacturer portal” maintained on CPSC’s Web site. (Those who do not register could submit comments via email or mail.)

Requirements for publication. The manufacturer would have to meet the following requirements to have their comments published: (i) relate their comments to information contained in a specific report of harm; (ii) state the unique identifier provided by CPSC (see below); (iii) verify that the information provided is true and accurate to the best of the firm’s knowledge, information, and belief; (iv) include a consent to publish.

Less than 10 days to comment, for publication w/ report. Manufacturer comments meeting the above criteria would be published at the same time as the report of harm is published in the Web site database (i.e., ten days after the report of harm is submitted to CPSC) or as soon as practicable thereafter. Therefore, manufacturers wishing to have their comments published at the same time as the report of harm, would have less than ten days to submit their comments.

Comments older than one year. CPSC, at its discretion, where it determines it is in the public interest, could choose not to publish a manufacturer comment to the database if this comment is received more than one year after transmission of the report of harm to the manufacturer.

Mfrs Could Request Portions of Reports of Harm Not be Published

Manufacturers would be able to request that CPSC determine portions of the publically submitted reports of harm to be confidential.⁴ Information determined confidential by CPSC would not be published in the database.

Submission requirements. To make such a request, the manufacturer would have to state (partial list): (i) whether the information so specified is commonly known within the industry or is readily ascertainable by outside persons with a minimum of time and effort; (ii) the company’s relationship with the victim and/or submitter of the report of harm and how they came to be in possession of such allegedly confidential information; (iii) how the release of the information would be likely to cause substantial harm to the company’s competitive position; (iv) etc.

Publication of report could be delayed. A request for designation of confidential information would have to be received by CPSC in a “timely manner.” If a request for confidential treatment were submitted in a timely fashion, CPSC could, in its discretion, withhold a report of harm from publication in the database until it makes a determination regarding confidential treatment.

Removal or publication of info. If CPSC determines that the information it is requested to review is confidential, it would notify the manufacturer, redact the information, and publish the rest of the information in the database. If it does not determine the information to be confidential, CPSC would notify the manufacturer and publish the information (if not already published) in the database.

Anyone Could Request “Material Inaccuracy” Determinations

Under the proposed rule, any person or entity reviewing a report of harm or manufacturer comment, either before or after publication in the database, could request that CPSC make a determination that certain information is materially inaccurate.⁵

Submission requirements. A requester seeking such a determination would have to: (i) specifically identify the portion(s) of the report of harm or the manufacturer comment claimed to be materially inaccurate; (ii) state the basis for the allegation; (iii) provide evidence which could include documents, statements, electronic mail, internet links, photographs, or any other evidence, sufficient for CPSC to make a determination that the designated information is materially inaccurate; (iv) state what the requester is seeking (i.e. exclusion of the entire report of harm or manufacturer comment, redaction of specific information; correction of specific information; addition of information); (v) etc.

Publication of report could be delayed. A request for designation of information as materially inaccurate could be submitted at any time. However if it were submitted prior to CPSC’s publication of the report of harm in the database, CPSC could withhold a report of harm from publication until it makes a determination.

Removal or publication of info. If CPSC determines that the information is materially inaccurate before publication, it would either: (i) decline to add the materially inaccurate report of harm or manufacturer comment to the database; or (ii) correct the materially inaccurate information. If CPSC makes a determination after the report of harm or manufacturer comments have been published, it would remove or correct the materially inaccurate information within seven business days.

CPSC Would Include Warning on Database Accuracy

The proposed rule states that CPSC would not guarantee the accuracy, completeness or adequacy of the database, particularly with respect to information submitted by persons outside of the CPSC. Therefore, CPSC proposes that the database contain a notice to this effect that would be prominently and conspicuously displayed on the database and on any documents that are printed from the database.

CPSC Commissioners Comment on Proposed Rule

Note that the proposed rule was approved for publication by a vote of 3-2, and all five Commissioners have submitted comments on this rule. The three Commissioners that voted for the proposed rule (Chairman Tenenbaum and Commissioners Moore and Adler) submitted positive comments, while the two Commissioners voting against it (Commissioners Nord and Northup) posted highly critical comments.

¹CPSC intends that any final rule become effective 30 days after its publication in the Federal Register. However, as the database is still being developed, and the requirements set forth in this rule would only be applicable once the public database is established, CPSC intends to state, in the final rule, when the database will become operational.

²A "report of harm" would mean any information submitted to CPSC on an incident concerning an injury, illness or death, or any risk of injury, illness or death (as determined by CPSC) relating to the use of the consumer product or any other product or substance regulated by CPSC.

³This provision would apply to manufacturers (including importers) or private labeler which is somewhat unlike the recent “15 Month” proposed rule in which CPSC interpreted the certification requirement as only applying to domestic manufacturers (in the case of domestic products) and importers (in the case of imported products).

⁴For purposes of this section, “confidential information” would be considered information that contains or relates to a trade secret or other matter referred to in 18 USC 1905 or that is subject to 5 USC 552(b)(4).

⁵Materially inaccurate information in a report of harm would mean information that is false or misleading in a significant and relevant way that creates or has the potential to create a substantially erroneous or substantially mistaken belief in a database user about information in a report of harm relating to: (i) the identification of a consumer product; (ii) the identification of a manufacturer or private labeler; or (iii) the harm or risk of harm related to use of the consumer product.

Materially inaccurate information in a manufacturer comment would mean information that is false or misleading in a significant and relevant way that creates or has the potential to create a substantially erroneous or substantially mistaken belief in a database user relating to: (i) the nature, scope, liability, or cause of a harm or risk of harm related to the use of a consumer product; (ii) the status of a CPSC, manufacturer, or private labeler investigation; (iii) the identity of the firm or firms responsible for the importation, manufacture, distribution, sale, or holding for sale a consumer product; (iv) whether the manufacturer is engaging in a corrective action (when such action has not been approved by CPSC); or (v) whether the manufacturer has taken, or promised to take, any other action with regard to the product.

(See ITT’s Online Archives or 04/06/10 and 04/20/10 news, 10040620 and 10042025, for BP summaries of a draft version of the proposed rule and CPSC’s approval and staff comments on the rule, respectively.

See ITT’s Online Archives or 12/23/09 and 11/12/09 news, 09122315 and 09111210, for BP summaries of CPSC announcement of a workshop on the database and its listening to industry concerns about the database.

See ITT’s Online Archives or 09/15/09 news, 09091515, for BP summary of CPSC’s report to Congress on its plans for the public database.)

CPSC contact - Mary Kelsey James (301) 504--7213

CPSC Commissioner comments on the proposed rule are available here