The Consumer Product Safety Act (CPSA), as amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA) requires the Commission Product Safety Commission (CPSC) to establish and maintain a public database (Database) on the safety of consumer products, and other products or substances regulated by the CPSC. Under the law, the Database must be:
-accessible through internet website of the CPSC
A. What does this mean for manufacturers and consumers? The Database went live this month and will be a clearinghouse for the following consumer product information:
1. Reports of harm, where harm is defined as any injury, illness, or death or risk of injury, illness or death, relating to use of consumer products, and other products or substances regulated by the CPSC;
2. Manufacturer comments regarding reports of harm;
3. Information the CPSC derives from mandatory recall notice and any notice of a voluntary corrective action taken by a manufacturer; and
4. Additional information the CPSC determines is in the public interest.
B. What kind of information will be posted?
The CPSIA provides that the Database will include reports of harm relating to the use of consumer products, and other products or substances regulated by the CPSC that are received from:
-consumers -Federal, state and local government agencies -health care professionals -child service providers -public safety entities
Reports of harm cannot be included in the Database unless they contain the following minimum required information:
Description of the consumer product (or other product or substance regulated by the CPSC);
Identity of the manufacturer or private labeler of the consumer product (or other product or substance regulated by the CPSC);
Description of the harm related to use of the consumer product (or other product or substance regulated by the CPSC);
Contact information for the person submitting the report (not to be disclosed in Database);
Verification by submitter of truth and accuracy of information submitted; and
Consent by submitter to inclusion of such information in the Database.
C. What happens when the CPSC receives a report of harm? The CPSC is required to transmit reports of harm that include the above-referenced minimum required information to the manufacturer/private labeler “to the extent practicable” no later than 5th business day after receipt of the report.
The manufacturer/private labeler may submit a comment on information in a report of harm and request that such comment be included in the Database.
Any reports of harm submitted to the CPSC must be made available in the Database no later than the 10th business day after the date on which the CPSC transmits the report to the manufacturer/private labeler.
The CPSC will not disclose the name and address of submitter of report of harm in the Database, but the agency can disclose that information to the manufacturer/private labeler of a consumer product with the express consent of the person submitting the information. The law provides that consumer information provided to a manufacturer/private labeler may not be used or disseminated to any other party for any purpose other than verifying a report of harm.
D. How can a Manufacturer/Private Labeler Respond? The law provides that a manufacturer/private labeler may request confidential treatment of portions of a report of harm and request that such portions be designated as confidential and redacted from public view.
If the CPSC determines designated information is confidential business or trade secret information, the CPSC must redact the designated information in the report before placing it in Database. If the CPSC determines the designated information is not confidential it must notify manufacturer and include the information in the Database. The manufacturer/private labeler may bring an action in U.S. District Court to seek removal of information from the Database.
E. How will the CPSC address erroneous reports of harm or information in the Database?
If the CPSC determines that the information in a report of harm or a comment from a manufacturer/private labeler is materially inaccurate, the CPSC shall:
-Decline to add the materially inaccurate information to the Database;
-Correct the materially inaccurate information in the report or comment and add it to the Database; or
-Add information to correct inaccurate information in the database.
If after investigation the CPSC determines that information previously made available in the Database is materially inaccurate or duplicative of information in the Database, the CPSC shall, within 7 business days after such determination:
-Remove such information from the Database;
-Correct such information; or
-Add information to correct inaccurate information in the database.
F. What is Materially Inaccurate Information?
The CPSC defines materially inaccurate information in a report of harm or manufacturer comment as “information that is false or misleading and relates to a matter which is so substantial and important as to affect a reasonable consumer’s decision making about the product.
G. Should manufacturers/private labelers register their companies on the Business Portal of the Database web site?
This is an individual company decision. Registration is voluntary. The benefits of registration on the business portal include:
-All reports of harm involving a company’s product and sent to the company’s representative quickly and securely via e-mail.
-An online account allows a company to submit its comments for CPSC’s consideration and receive official CPSC correspondence.
-There can be multiple user accounts for registered companies.
-Registration saves time because the CPSC has a 10 day deadline imposed by law to post a report of harm on the Database.
Important Note: Manufacturers (including importers) and private labelers choosing to use the Business Portal to review and comment on reports of harm must be aware that Database reports and comments do not satisfy the CPSC product safety reporting requirements. If a manufacturer/importer/ private labeler receives information (whether through the Business Portal or with other information such firm has or may later receive) that reasonably supports a conclusion that a product contains a defect which could create a substantial product hazard, or creates an unreasonable risk of death or serious injury, the company must notify the CPSC Office of Compliance and submit a Section 15(b) report to the agency. The Section 15(b) reports will not be included in the Database. (See our prior blog posts on Section 15(b) reporting and product recalls).
There has been significant consternation and uneasiness about the new product safety Database. As with any new system, there will be glitches and potentials for abuse. However, the Database is here to stay and it behooves manufacturers, importers and private label companies to be aware of their on-line profile, including reports of product harm, so they can respond both legally and as may be necessary to as part of the larger enterprise risk management function for their company.
The CPSC Database at http://www.saferproducts.gov/ can be accessed by clicking here:
A copy of the CPSC Database regulations at http://www.cpsc.gov/businfo/frnotices/fr11/database.pdf can be accessed by clicking here:
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