Public Database of Product Complaints Will Require Action by Manufacturers
Product Liability Law Update 12/20/10 Michael J. Gonring, Lars E. Gulbrandsen, Eric W. Matzke
Manufacturers and private labelers of consumer products already need to be aware of the various regulations of the Consumer Product Safety Act ("CPSA"), especially the reporting requirements of Section 15. And for those who sell children's products, the relatively recent (2008) Consumer Product Safety Improvement Act ("CPSIA") has created all sorts of new obligations.
Another provision of the CPSIA soon will create new considerations for all manufacturers and private labelers of consumer products.
On March 11, 2011, the Consumer Product Safety Commission ("CPSC") will launch a new searchable public database, which creates an open forum for the general public to report and research safety incidents involving consumer products.
It is not difficult to find sites on the internet now, so-called "gripe sites," where allegations of product defect are made and where plaintiff's lawyers mine for possible claimants. The world of social networking also has opened up new forums for commentary on products.
However, the new public database - at www.SaferProducts.gov - will have the aura of reliability brought by the CPSC, and literally anyone will be able to post a report of injury on the database without an investigation by the CPSC. The result will be an information free-for-all that will require an informed and aggressive response by those who sell consumer products.
How Does the Database Work?
The public database will collect so-called "reports of harm," which are defined as information regarding "injury, illness or death, or any risk of injury, illness or death . . . relating to the use of a consumer product." The reports may be filed not only by the product user or owner, but by family members, friends, observers of the use of a product, attorneys, investigators, engineers, government agencies, health care providers, consumer advocate organizations and so on; in other words, anyone may file.
To become part of the database available to the public, the report need include only a description of the product, the identity of the manufacturer or private labeler, a description of the harm caused by the product, an approximation of the incident date, and the category of the person or entity who submits the information. No contact information of the submitter will be available in the database or sent to the manufacturer without express consent of the submitter.
The CPSC does not plan to investigate every report of harm; but, it retains the ability to do so, and there is no plan to punish those who make false reports. However, the database will contain a disclaimer that the CPSC does not guarantee the accuracy of the contents of the database.
The CPSC will send reports of harm to the manufacturer within five days of receipt and will publish reports of harm in the database no later than 10 days after they are sent to the manufacturer.
What Can Manufacturers Do?
As an initial step starting in January 2011, manufacturers may register with the CPSC's online portal at www.SaferProducts.gov to receive electronic notice of reports of harm. This will give the manufacturers the full
10 days to conduct an investigation and comment.
There are three main tools available to manufacturers in response to a report of harm:
- Manufacturers may comment on the reports of harm, and those comments will be published in the database. The comments have to be specific to the product and the report of harm, and contain a verification that the comments are accurate, as well as an affirmation that the manufacturer wants the comments published. Although comments also may be submitted after a report of harm is published, it is clearly important to submit initial comments as close as possible to the 10-day period.
- Manufacturers may seek to exclude the report of harm based on claims of trade secret or confidentiality. It is difficult to imagine a circumstance when a report of harm contains this type of information, especially given the bare-bones requirements of the reports, unless the submitter of the report has that information because of his or her relationship with the manufacturer.
- Manufacturers may challenge a report of harm that contains materially inaccurate information, which is defined as "false and misleading" and "so substantial and important as to affect a reasonable consumer's decision making about the product." The types of information that may be challenged are identification of the product and of the manufacturer or private labeler of the product, the harm or risk of harm related to the product or the date on which the incident occurred. The basis for the claim of material accuracy must be stated, and evidence must be provided to show that the information is inaccurate.
Advice for the Manufacturer
It is important to remember that the CPSC has been collecting consumer product incident reports for decades. Often they have been provided to manufacturers with an opportunity to comment, but release to the general public has been restricted and the CPSC has taken its own steps to make sure the information was accurate before release.
With the CPSC public database, the reports - in unverified fashion - will be available to the world. Significantly, they will be available to plaintiff's lawyers who actually will have the opportunity to create the reports themselves and surf the database for clients.
As indicated above, the CPSC has not given manufacturers much in the way of ammunition against the reports. However, there are steps that manufacturers should be ready to take.
- Register to receive electronic notice of reports of harm and identify a process and persons within the Company to investigate reports as they are received. Investigation may be difficult because of the lack of information received with the reports, but all possible sources must be used. Also, the report must be analyzed for possible objection as to trade secret or confidential information, and material inaccuracy.
- Consider standard comments that should be made in response to reports. Even if there is little information that can be investigated or confirmed, manufacturers should be ready to submit comments that "defend" the product, keeping in mind that comments will be available for use in litigation.
- Some products may be the subject of multiple reports; others may be one-timers. Consider "categories" of comments for both.
- Remember that notice of a possible product defect from any source, including a public database report of harm, starts the clock ticking for a possible report under Section 15 of the CPSA.
Quarles & Brady LLP stands ready to assist as you navigate any CPSC regulations or requirements. For
more information, contact Mike Gonring at (414) 277-5359 / [email protected], Lars Gulbrandsen at
(414) 277-5137 / [email protected], Eric Matzke at (414) 277-5335 / [email protected] or your Quarles & Brady attorney.