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Improving the CPSC Consumer Product Safety Database: Your Feedback Wanted

The Consumer Product Safety Commission (CPSC) will hold a public hearing next month to solicit ways to improve www.saferproducts.gov, the agency’s public consumer product information database. Mandated by Congress and not meaningfully altered since its launch nearly eight years ago, the database provides a centralized location for consumers and stakeholders to report potential product-safety incidents and conduct searches for product-safety reports or recalls. Its current form was approved on a party-line commission vote after heated debate.

Debate Over the Database 

The arguments for and against largely turned on one key factor: The database is not subject to the information-disclosure requirements contained in Section 6(b) of the Consumer Product Safety Act (CPSA). Section 6(b) gives companies an opportunity to review product-related information CPSC intends to release and to seek an injunction if they believe the release would be unfair or inaccurate.

Database proponents – who had long argued and still argue that 6(b) is excessively restrictive and tips the information balance too far toward companies and away from safety – touted it as not only a way for CPSC to more quickly disseminate reports of harm, but an opportunity for consumers to more readily provide those reports. Critics raised concerns about the quantity and quality of information that would be published and the protocols CPSC would use to ensure fairness and accuracy, the central thrusts of the 6(b) protection the database would lack.

Overall, the database has been neither as revolutionary as its advocates hoped nor as disastrous as its opponents warned. It can be a useful tool for consumers and does provide CPSC with a more real-time data stream that is more regularized than are calls or letters, but the published reports can be vague or disjointed, and the notices that companies receive are often incomplete, irrelevant, or even about other companies’ products.

Issues Likely to Come Up in the Hearing

The hearing notice asks for public written or oral comment on the database in general, but also on a series of specific questions. Most relate to the mechanics of using the site, for both consumers and businesses, and do not likely signal any potential policy changes. One, however, may raise eyebrows, particularly among privacy advocates.

The database currently allows submitters to give CPSC permission to publish their reports, but by default that permission is withheld; consent to publish is “opt-in.” Per question 11 of the notice, “CPSC is considering whether to move to a pre-checked [permission] box;” consent would then be “opt-out.” Advocates have argued that opt in models are more protective of consumer privacy, as consumers can only consent to information collection or disclosure by affirmatively acting to do so.

The CPSC is expressly forbidden from publishing “the name, address, or other contact information” of submitters, so, even with this change, the database will not turn into a phonebook. However, particularly for reports of serious injuries or fatalities that would likely generate media coverage, submitters can often be readily identified and may well be reluctant to have any public notice or attention. This would force them to affirmatively withhold consent for publication rather than affirmatively grant it, which is a significant change.

A well-functioning database populated with accurate, relevant information may be a net positive for CPSC’s information-gathering mission, but CPSC can and should take steps to make it both more user-friendly and more reliable. Let’s hope for a robust public hearing that provides the agency a wealth of ideas for how to do so.

The hearing will be Wednesday, March 6, at 10:00 a.m. ET at the CPSC’s Bethesda headquarters. If you are interested in attending or participating, you can email the CPSC Secretariat no later than February 20 at cpsc-os@cpsc.govwith the Subject: Improvements to SaferProducts.gov. You can submit written comments at www.regulations.gov and view the hearing notice in the Federal Register.

© 2019 Schiff Hardin LLP

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About this Author

Mike Gentine, Schiff Hardin, Product liability lawyer
Counsel

With experience spanning federal government, private practice, and in-house roles, Mike advises clients on legal and regulatory matters particularly in the area of consumer goods and product safety.

Mike has held multiple positions at the U.S. Consumer Product Safety Commission (CPSC). He served as senior counsel for the Office of CPSC Commissioner Joseph P. Mohorovic from 2014-2017, where he advised on various policy, enforcement, and ethics issues. He led several efforts to reform rules and regulations, including an initiative to reduce the paperwork burden on CPSC-regulated...

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