Consumer Reporting Database Goes Live in March 2011

The Consumer Product Safety Improvement Act (passed in 2008) required the development of a publicly available database for safety issues affecting “consumer products.” This includes nearly every type of product consumer product, excepting products regulated through other regulatory schemes (such as automotive products, foods, drugs and medical devices). The database is scheduled to go active in March 2011.

The stated purpose of this database is to provide product safety-related information to consumers. Because of its nature and public accessibility, it will also become a “historical record” of product complaints and safety issues. This database will be available for anyone to record safety problems they encounter. It will also be available for anyone to access and review on the Internet.

Certain information is required before the filing will be published on the database, including product description, manufacturer identification, description of the harm, incident date, category of the submitter (consumer, attorney, etc.), contact information for the person submitting the report, verification of the submitter, and consent of the submitter to have the data published. Contact information for the submitter is not publicly available (including to the manufacturer), unless the submitter consents.

Because of concerns by product manufacturers and others that inaccurate or inappropriate information may have harmful effects, certain safeguards are built into the program that will allow businesses to review and respond to reported information before it is made available to the public. However, these safeguards are limited. For example, businesses will only have a relatively brief period of time (10 business days) to review these reports before they are posted to the database. Since these reports are not pre-screened by CPSC staff, they may contain “material inaccuracies”. It is thus important to take advantage of every opportunity to promptly screen these reports and ensure that only accurate and appropriate information is posted. Because any written response a business makes will be also be posted and available for public review, it is important that all responses be thorough, accurate, and reflect the product’s true “consumer safety story” and history.

Steps for manufacturers:

1. Familiarize Yourself: This is a new program being run by the US Consumer Product Safety Commission, which has established a website at http://www.saferproducts.gov/ Considerable program information is available on this site. For example, information sessions given to consumer interests (January 11, 2011) and to business interests (January 20, 2011) are available for download and viewing. Access to the database itself will be through this site.
2. Register on the Portal. Businesses should consider registering their company on the “Business Portal.” Although not required, registered businesses will be provided with email (rather than first class mail) notice of filings, thus giving a much better opportunity to manufacturers to review and respond to filings. A specific “primary contact” person should be designated as the recipient of all such notices.
3. Promptly screen all filings. All filings should be promptly reviewed to ensure they are accurate (correct manufacturer? Correct product description? Applicable industry standards compliance and testing? Duplicate report?). Manufacturers are not required to respond to any reports, and also have the option of electing to have the response treated as public or available only to the CPSC. If objections raising challenges to filings based on material inaccuracies or public disclosure of confidential or trade secret information are made within the 10-day response window, CPSC must investigate these challenges before publishing the filing.
4. Prepare and file appropriate responses where appropriate. Because manufacturer’s responses are public documents, care should be taken to ensure they are appropriately drafted to respond to the filing, and to make sure the responses accurately reflect the product’s consumer safety and warranty history. Each filing should be reviewed on a case-by-case basis to determine whether a response should be made, and, if so, what information should be provided. Additionally, filings may be made after the 10-day window (such as after an incident is investigated), although these late filings may not be immediately posted.
5. Keep track of reported incidents and filings. Because manufacturers are generally charged with knowledge of all information generally known within their industry, in addition to information specifically reported to the manufacturer, it is important to keep track of product trends, risks, etc. CPSC requires prompt reporting and follow up if product safety issues are potentially implicated.