CPSC Launches Public Database for Product Safety Complaints

March, 2011:  soccer_ball.jpg

If your company manufactures or imports any of the 15,000 kinds of consumer products used in the home, at school, or for recreation or sports that are regulated by the Consumer Product Safety Commission (CPSC), you have a new customer complaint department: the CPSC’s public portal, www.saferproducts.gov, which went live on March 11, 2011. This website allows consumers and others to report product safety incidents (called “Reports of Harm”) and to search for a product’s history of reported incidents and recalls.  The development of this website was mandated by Congress in the Consumer Product Safety Improvement Act of 2008.

Time is of the essence

The CPSC is required by law to notify the product’s  manufacturer, importer of record or private labeler (referred to in this article generally as “manufacturers”) within 5 business days of the filing of a Report of Harm. The CPSC is required to publish the Report of Harm on the database just 10 business days after it has been sent by the CPSC to the manufacturer. Manufacturers have an opportunity to submit a response to Reports of Harm relating to their products and may request that the response also be published on the database.  If the manufacturer’s response is received within the 10-business day period and the CPSC has sufficient time to review it, it will be published at the same time as the Report of Harm.  Comments can be submitted at any time to be published on the database, but a prudent manufacturer will work to submit comments quickly so they will appear at the same time the Report of Harm is first published (or shortly thereafter).  Hopefully, the manufacturer’s response will be read as mitigating any damage caused by a Report of Harm.  Manufacturers must comply with the page limitations and other rules relating to manufacturer responses.

Database or erratabase?

Manufacturers may request that confidential information (such as trade secrets) and materially inaccurate information (e.g., the Report incorrectly identifies a product not manufactured by the manufacturer) not be published on the database. The burden of proof is on the manufacturer to demonstrate why information should not be published.  Note that as a result of the 10-business day publication requirement, it is likely that some published Reports of Harm will include materially inaccurate information because the CPSC has not had sufficient time to evaluate the manufacturer’s objection.  The CPSC has stated that it will not wait to publish a Report of Harm until it determines whether the Report contains materially inaccurate information, and there are no time constraints imposed on the CPSC to make this determination. As a result, there is concern that the database will become a “black hole” for inaccurate claims.

Steps a manufacturer can take

ØRegister with the CPSC.  Because of the aggressive timeline for publishing Reports of Harm on the database, it is vital that manufacturers receive Reports of Harm relating to their products as soon as possible so they can try to control the damage and prevent confidential information and/or materially inaccurate information from being published.  Manufacturers should register with the CPSC via the Safer Products Business Portal (go to www.saferproducts.gov and click on the tab “Business Register and Respond”) so that they receive email notification of Reports of Harm.

Ø Implement Procedures.  Manufacturers should develop and implement procedures to investigate and respond to consumer complaints (including Reports of Harm), together with training protocols for the individuals responsible for those tasks.  This process should include maintaining information that can be readily accessed to refute a Report of Harm (e.g., lists of products manufactured, dates of manufacture, etc.).

ØMonitor and Track Reports of Harm.  Reports of Harm may trigger other reporting obligations to the CPSC because the manufacturer will then have knowledge of risks of harm relating to its product.  Under Section 15(b) of the Consumer Product Safety Act, manufacturers and certain other parties have an obligation to report to the CPSC within 24 hours of obtaining information that reasonably supports a conclusion that a product: (1) does not comply with applicable consumer product safety rules or any other rule, standard or ban enforced by the CPSC; or (2) contains a defect that could create a substantial risk of injury to the public or creates an unreasonable risk of serious injury or death.

ØDevelop a Comprehensive Risk Management Program.  Manufacturers should develop a comprehensive risk management program to address claims arising from the consumer database, such as recalls and product liability lawsuits, as well as a public relations strategy to limit the effects on the business’s reputation and brand value.

 If you have any questions, please feel free to contact Joanne M. Murray, Esq. at jmurray@ammlaw.com or (215) 230-7500 ext. 15.