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The Product Safety Report©

February, 2011
Law Offices of David H. Baker LLC 
www.dhbakerlaw.com 
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Public Database – www.saferproducts.gov
On March 11th, the CPSC will go live with its new public database for safety complaints about consumer products. The new site, www.saferproducts.gov, had it origins in the Consumer Product Safety Improvement Act of 2008 (“CPSIA”). Public Law 110-314, 122 Stat. 3016 (August 14, 2008). Section 212 of the CPSIA required the CPSC to “…establish and maintain a database on the safety of consumer products, and other products or substances regulated by the Commission.” The database was to be:

(A) Publicly available
(B) Searchable, and
(C) Accessible through the Internet website of the Commission.

Section 212 of CPSIA; New Section 6A(a)(1) of Consumer Product Safety Act (“CPSA”)

Congress delineated that these complaints, or reports of harm, as Congress termed them, should be accepted from:

(i) consumers;
(ii) local, State or Federal government agencies;
(iii) health care professionals;
(iv) child service providers; and
(v) public safety entities.

Section 212 of CPSIA; New Section 6A(b)(1)(A) of CPSA.

The concept was that consumers could submit reports of harm to the new website, the Commission staff would review the reports for accuracy and then would transmit the reports to the manufacturers and private labelers within five business days of receipt. Manufacturers and private labelers (hereinafter “manufacturers”) would then have “an opportunity to submit comments to the Commission on the information contained in such report.” Section 212 of CPSIA; New Section 6A(c)(2)(A) of CPSA.

In a subsequent rulemaking on the database, the CPSC stated that absent a determination that a report was materially inaccurate, it would “…publish reports of harm on the tenth business day after transmitting a report of harm to the manufacturer or private labeler.” 75 Fed. Reg. 76871 (2010)

In a series of webinars (January 11, 2011 and January 20, 2011) and monthly mailings (inserts to Section 6(c) letters to manufacturers and private labelers), the Commission sought to explain what consumers needed to do to file reports of harm, and what manufacturers needed to do to log in and register to receive reports of harm.

The website is now up and operative and is in a test phase. Consumers can post complaints, but they will not ever be made publicly available. Manufacturers should be receiving reports of harm, and can comment, but the comments will not ever be made publicly available. This will all change on March 11th when the website goes “live”.

The establishment of the public database has not been without political acrimony. The final rule on the database, published on December 9, 2010, came about after several contentious public meetings, and only after Republican Commissioners Northup and Nord offered an alternate rule at the last minute. The vote on the final rule was 3 to 2, along party lines.

It appears that the Republican alternate is dead, but Commissioner Northup is seemingly encouraging industry to appeal the final rule on the basis that the Commission failed to adequately consider the alternative rule, citing Chamber of Commerce v. SEC, 412 F. 3d 144 (D.C. Cir. June 21, 2005).

The deadline for appeal will pass on February 9th. I am not aware of any court appeals filed to date. So I think it is safe to assume that no stay will be issued, pending judicial review, and the website will go live on March 11th, as scheduled.

If you have any questions about the new public database, do not hesitate to contact David Baker at [email protected].

David H. Baker
February 8, 2011