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Breaking: CPSC Notifies Numerous Companies of Unprecedented, Unauthorized Disclosure of Information

Late this afternoon, the U.S. Consumer Product Safety Commission (CPSC) informed what could turn out to be a very large number of consumer product companies that it recently discovered what appears to be a mass inadvertent disclosure of nonpublic manufacturer and product specific information. Given the type of data CPSC retains in its databases, the information released almost certainly involves safety incidents that are specific to manufacturers and their products. Based on the letter sent to manufacturers from the CPSC’s Office of General Counsel, it also appears that CPSC sent this information to multiple recipients.

In CPSC’s letter, the agency stated: “[W]e recently discovered that nonpublic information identifying your company by name along with product model name and/or model number was released in error to the public without following the procedures in 15 U.S.C. § 2055.”

For those readers unfamiliar with this provision of the law, often referred to as “Section 6(b)," it provides procedures for and restrictions on CPSC’s public disclosure of manufacturer and product specific information. It applies to any information from which the public can readily ascertain the identity of a manufacturer or private labeler of a consumer product. The purpose of 6(b), as originally enacted, was to protect manufacturers from CPSC’s disclosure of potentially inaccurate or misleading information regarding their products.

CPSC’s letter notifying the manufacturers also states that CPSC staff has contacted the recipients of the information and has “requested” that they return the information to the agency or destroy the information and certify the destruction. Furthermore, CPSC informed the recipients that this information cannot be published or further disseminated. Based on the agency’s letter, it does not appear that those who received the data would be breaking the law if they held onto or used the data. The letter is phrased as a “request” for the recipients of the data to return or destroy it and it appears that the agency is not able to compel the recipients to do so.

We obtained a copy of what appears to be CPSC’s correspondence to the recipients of the unauthorized data release. It states: 

“The U.S. Consumer Product Safety Commission (CPSC) staff writes to inform you that we recently discovered that on October 24, 2018 and November 7, 2018 nonpublic information identifying manufacturers by name along with product model name and/or model number was released in error to you without following the procedures in 15 U.S.C. § 2055. We seek immediate action from you by returning the documents containing nonpublic manufacturer specific information to the CPSC or destroying the nonpublic manufacturer specific information you received in error from CPSC staff and certifying destruction of that information. This information cannot be published or further disseminated by you."

Based on this it appears the information could have been released months ago but the agency only just recently discovered the issue and requested that the recipients certify that they returned or destroyed the information. While we do not know the full extent of the disclosure, it appears to be very large, and we believe it is unprecedented in scale. Consumer product manufacturers that have received this notice should start taking steps to determine the extent of the information CPSC released about their products and how it affects their company

Coincidentally, this incident follows Tuesday’s House hearing on oversight of CPSC, at which Section 6(b) and its role in the consumer product regulatory arena was discussed and debated at length. Suffice it to say, today’s notice of this significant unauthorized disclosure of information will only further put Section 6(b) in the spotlight.

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About this Author

Matthew Howarse, Consumer Safety, Attorney, Mintz Levin, Law Firm
Member

Matt is a prominent consumer product safety lawyer who advises manufacturers, retailers, importers, distributors, trade associations, and test laboratories. He has extensive experience with compliance, regulatory enforcement, recalls, and other product safety related issues. He represents clients before the Consumer Product Safety Commission (CPSC), Health Canada, the Federal Trade Commission, Congress, and state agencies. Matt draws on his four-year tenure as the CPSC chief of staff and his many years advising clients in private practice to devise practical and...

202-434-7446
Charles Samuels, Mintz Levin Law Firm, Washington DC, Tax and Environmental Law Attorney
Member

Chuck is engaged in a federal and international regulatory and legislative practice. He has been extensively involved in product safety, environmental, tax, health care, technology, and energy issues, and public finance legislative and regulatory matters for a variety of trade associations, corporations, local governments, and state agencies.

His practice encompasses work before the US Consumer Product Safety Commission, Departments of State, Health and Human Services, Energy, and Treasury, US Trade Representative, Environmental Protection Agency, Federal Trade Commission, the IRS, and other federal and state agencies. He also has extensive experience dealing with Canada, the European Commission, and international bodies.

Chuck also engages in trade association representation and antitrust counseling. As general counsel of the Association of Home Appliance Manufacturers, Chuck negotiated and drafted the amendments to the Consumer Product Safety Act and the National Appliance Energy Conservation Act, and represents the appliance industry at international bodies dealing with safety, energy, ozone depletion, and global warming.

Before joining Mintz Levin, Chuck practiced regulatory law with a law firm in Chicago and then worked in the Executive Office of the President before entering private practice in Washington.

202-434-7311
Shawn Skolky, Mintz Levin Law Firm, Washington DC, Corporate and Litigation Law Attorney
Associate

Shawn advises on many aspects of antitrust and competition law, including antitrust counseling, merger review, and private antitrust litigation, including class actions. His consumer product safety practice focuses on helping companies seeking representation on product safety reporting obligations, recalls, regulatory compliance, product safety investigations, and enforcement matters involving the Consumer Product Safety Act (CPSA) and other federal and state product safety laws.

202-434-7345
Evelyn French Compliance Attorney Mintz Law Firm
Associate

Evelyn focuses her practice on regulatory and compliance matters involving the Consumer Product Safety Act (CPSA) and other federal and state product safety laws. She helps companies seeking representation on product safety reporting obligations, product safety investigations, recalls, and other regulatory and enforcement matters. Evelyn also engages in trade association representation and has an antitrust practice in which she advises on many aspects of antitrust law, including merger review and private antitrust litigation.

Prior to joining...

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