Mike Daglio of McGuireWoods'
Product Safety Team conducted a webinar in which McGuireWoods provides tools
for your company to prepare for the release of the public database by the
Consumer Product Safety Commission (CPSC).
Beginning on March 11, 2011, the CPSC will make available to the public a
database intended by Congress to serve as a consumer product early warning
system. Consumers, plaintiffs' lawyers, advocacy groups and others will submit
for publication in the database allegations concerning what they believe are
dangerous consumer products, or components of those products. The database will
be searchable and accessible on-line at
www.SaferProducts.gov. So long as the person or entity submitting a report
satisfies the minimum requirements for publication – a low hurdle – the CPSC
will publish the allegations 10 business days after providing a manufacturer or
private labeler with the opportunity to raise limited objections, or to publish
comments in the database responding to the allegations.
Consumers have been submitting complaints to the CPSC since the early 1970s,
and since that time the CPSC has solicited comments from manufacturers and
others regarding those complaints. Due to the protections afforded by the
Consumer Product Safety Act, the Freedom of Information Act, and other laws, the
vast majority of consumer complaints were not released to the public. The
Consumer Product Safety Improvement Act of 2008, the impetus for the new
database, reverses that outcome. The vast majority of reports submitted on or
after March 11, 2011, by whomever, with whatever motive, will be published in
The database has the potential of damaging the reputations of some companies
and their brands, increasing the cost of doing business, and serving as a tool
for plaintiffs' lawyers in products liability and class action litigation. These
potential risks and costs can be reduced with advanced planning that
incorporates database considerations into your company's existing efforts to
ensure product safety. Is your company prepared? Here are the questions your
company should be asking:
- Will your company register to receive electronic
notification of reports submitted for publication in the database, and if
so, who at the company will receive the notifications?
- Who at your company will be responsible for
overseeing the company's investigations concerning the allegations,
recognizing that some objections must be asserted well before the 10th
business day to prevent the information from being published in the
- After weighing the legal and business
implications, will your company submit comments for publication, and if so,
under what circumstances and using what internal approval process?
- Who at your company will be authorized to submit
comments and objections regarding the reports, recognizing that an
individual will be obligated to verify the truth and accuracy of any
comments submitted, and that any objections are asserted in good faith?
- Companies will be prohibited from using consumer
contact information for any purpose other than verifying a report. Will your
company institute a process to ensure that consumer contact information is
- Retailers will not receive reports in advance of
publication and will not be permitted to comment on reports. If your company
is a retailer, will it monitor the database for references to the company,
raising objections when appropriate?