CPSC Poised to Implement Online Product Hazard Database

Manufacturers have become accustomed to “reviews” of their products online. Whether on Web sites such as Amazon.com or retailer sites such as BestBuy.com, consumers scroll through comments on everything from the quality of the product to the level of customer service. They also take such reviews with a grain of salt. The reviews are usually anonymous and the motives of the poster unknown. Was it truly a stellar product or is the poster someone who would gain from increased sales? Was there a real problem with the product or did it break due to misuse? Was the customer genuinely dissatisfied or is the poster a disgruntled former employee or a competitor seeking to bring down the company?

Now, the Consumer Product Safety Commission (CPSC) is posed to unveil its own online reporting system and public database of actual and potential product hazards. However, unlike private retailer Web sites with reviews, the public places a great deal of reliance on information disseminated by the CPSC, particularly with respect to product defects and recalls. A case in point is the massive crib recall, which has led millions of parents and caregivers to seek a replacement for the popular drop-side design. When the CPSC speaks, people listen. And this official government database will provide the public with particularly serious information: whether a product caused or poses a risk of injury or death.

Potential Problems

Unless the CPSC implements adequate safeguards, information disseminated through the new online database may be wholly unverified. Posting inaccurate information, with a seal of government approval, would not only provide a disservice to consumers and cause irreparable damage to responsible manufacturers, but it would also harm the reputation of the CPSC and the level of confidence placed in reports issued by the consumer watchdog agency.

As the Commission develops the database, there are three important questions yet to be answered. First, what tools will the CPSC provide to manufacturers to identify inaccurate information? Second, what measures will the Commission take to keep potentially inaccurate information from appearing on the Web site and, after it is posted, how will it remove such information? Finally, how will the CPSC cull inappropriate information from reports?

Fortunately, there are mechanisms that the CPSC can and should put in place to ensure that the new database serves its intended purpose: to provide accurate information on product hazards so that consumers can protect themselves and make informed decisions, and so that manufacturers and retailers can promptly remove hazardous products from the market.

Database Basics

In 2008, Congress passed the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), Pub. L. No. 110-314. The legislation revitalized the CPSC, providing it with substantial new powers, penalties, and resources. Among its provisions is Section 212, which requires the CPSC to implement a publicly accessible, searchable, online database of consumer product incident reports.

The database will permit consumers, government agencies, health care professionals, child service providers, and public entities to submit reports of harm relating to the use of products regulated by the CPSC. The CPSIA requires that a report include, at minimum: 1) a description of the product; 2) identification of the manufacturer or private labelers; 3) a description of the harm; 4) contact information for the person submitting the report; and 5) a verification by the person submitting the information that the information “is true and accurate to the best of the person's knowledge.” Contact information of individuals submitting information to the database is confidential and will only be shared with the manufacturer if the individual submitting the report provides his or her express written consent. The CPSIA does not include a sanction for submitting false information.

Within five days of receiving a report, the Commission must, to the extent practicable, transmit the report to the manufacturer of the product at issue. According to a recent CPSC report to Congress, the agency plans to implement mechanisms that will provide near instantaneous notice to manufacturers and retailers that have registered their contact of reports involving their products. The manufacturer will then have an opportunity to submit comments to the Commission that state the company's position and request that its comments appear in the database alongside the report. The manufacturer also will have an opportunity to identify any confidential information that appears in the report and request that the Commission redact such material before it appears online. The CPSIA states, however, that the CPSC must post the report online within ten days of sending it to the manufacturer. This provides a very short window for the manufacturer to investigate and comment on the report. If a manufacturer submits a comment after the CPSC has published the report online, then the CPSIA states that the comment is to appear “as soon as practicable thereafter.”

Feedback

The Commission is currently in the process of gathering feedback from stakeholders regarding implementation of the database. On Nov. 10, 2009, the CPSC held its first hearing on the issue. Discussions will continue over the next several months with manufacturers, retailers, trade associations, consumer and other advocacy groups, state and local governments, and individual consumers. The database, tentatively to be located at “SaferProducts.gov,” is to go live no later than March 11, 2011 in accordance with the deadline set in the CPSIA.

Danger of Inaccurate Information

In the age of the Internet and 24-hour news coverage, information can spread in a moment's time around the world. There is a danger that inaccurate information regarding a consumer product can irreversibly damage the reputation of a company and the sales of its product. Inaccurate reports also provide a disservice to consumers, who may become concerned about a product they have purchased that actually poses no danger or who are misled in their purchasing decisions by such reports.

There are various reasons why inaccurate reports or inappropriate information may be posted on the CPSC's new database. First, the ease and informality of submitting an online report may result in careless submissions. For example, a consumer might experience an issue with a product at home, but then fill out an online report the next day while conveniently at his or her work computer. In such a situation, the risk that the customer might misidentify the manufacturer or the product model is high. We all have had the experience of quickly drafting an e-mail and hitting “send,” only to attempt to “recall” an error or inappropriate comment contained therein.

Second, users of the online database may submit reports regarding products that are outside of the scope of CPSC's jurisdiction. This includes, for example, reports regarding food or medicine. Online submissions may also include inappropriate information that is not related to product hazards at all, but the consumer's view on the product's quality, address warranty issues, or pertain to the manufacturer or retailer's customer service. Such information would detract from the purpose of the database: to focus on reports of serious bodily injury.

Third, individuals with ulterior motives may post inaccurate information to tarnish the reputation of a company or its products. For instance, individuals affiliated with a competing product manufacturer could submit a false report to gain an advantage over a competitor. A former employee with an axe to grind might let loose a torrent of reports to place the company in a bad light. Finally, personal injury lawyers and their surrogates may use the database to tarnish the reputation of a company for the purposes of pressuring it into an unfair settlement in product-related litigation. Unsubstantiated database reports may permit plaintiffs' lawyers to launch “fishing expeditions” against manufacturers in discovery and give rise to consumer protection or product liability lawsuits based on rumor and designed solely to extort settlement funds. These superfluous costs, in addition to unjustly harming the product manufacturer, may inflate product prices for consumers.

Whatever its source, as the CPSC develops its online public database, it is essential that it implement safeguards and procedures for promptly identifying and limiting the posting of inaccurate information and for promptly removing inaccurate information should it be released to the public.

Incorporating Safeguards

The CPSC's Sept. 10, 2009 report to Congress on the Implementation of a Searchable Consumer Product Safety Incident Database recognizes that “[m]anufacturers have a strong interest in verifying the accuracy of consumer complaints, protecting proprietary information and other trade secrets, and in rapidly responding to product incident reports.” It is imperative that the CPSC proactively prevent inaccurate information from reaching the public and, if posted, to promptly remove such material from the database.

The CPSIA provides that the public database must include a “clear and conspicuous” notice that the CPSC “does not guarantee the accuracy, completeness, or adequacy of the contents of the database.” Although the mockup of the Web site in the CPSC's report to Congress states that is only designated to highlight possible features, it does not display any such notice. The CPSC should place the mandatory disclaimer language in bold eye-catching letters on every page and report generated by the Web site so as to warn consumers that reports do not represent the views of the agency, but represent unverified information. From the dialogue at a recent Commission hearing on the matter, the CPSC seems likely to at least take this minimal step. Even if it does so, however, these reports will appear on the Web site of a federal agency in an official “product safety incident database” and, regardless of disclaimer, they are likely to be considered and relied upon by many in the public as absolutely valid. As the mock up of the Web site reads, the database is, after all, a “service of the Consumer Product Safety Commission.” Thus, the disclaimer provides only a starting point and is not a substitute to safeguards necessary to ensure that the database provides useful and accurate information on product hazards to the public.

How Will the Commission Identify Inaccurate Information?

If a report submitted to the Commission includes confidential material, such as trade secrets, the CPSIA explicitly provides a means for a manufacturer to designate information as such. This designation triggers the need for a Commission determination as to whether the information qualifies as confidential before posting the report online. If the report contains confidential material, then the Commission may not include the report in the public database until it has redacted the confidential information. While the CPSIA provides this mechanism for confidential information, and includes a means for a manufacturer to generally comment on a report, it does not specifically provide a means for a manufacturer to identify inaccurate material and request a correction or deletion.

As the Commission develops its “industry portal” to the database, where manufacturers will be able to login and submit comments on reports, it should provide a means for a manufacturer to flag information in a report as inaccurate, similar to the way that a manufacturer will be able to designate information as confidential. In addition, through the industry portal, manufacturers should have the ability to flag past reports as containing inaccurate information.

For instance, information the manufacturer believes is inaccurate might be highlighted with a yellow flag, while proprietary information might be highlighted with a red flag. The Commission has authority to provide such a mechanism based on its obligation not to post inaccurate information in the database and through the manufacturer's ability to comment on reports.

What Action Will the CPSC Take Once a Manufacturer Identifies Potentially Inaccurate Information?

There are lingering questions as to the extent of the CPSC's responsibility verify the accuracy of reports submitted to the public database. Some members of consumer groups argue, for instance, that including a prominent disclaimer that the CPSC has not verified reports and providing manufacturers with the ability to respond publicly to reports through online comments, is sufficient. They may also observe that the CPSIA requires the Commission to remove information that it determines is “materially” inaccurate and note that it would likely be impossible for the Commission's current staff to proactively verify each and every report. In addition, some members of the Commission have questioned whether they have discretion to hold reports that are flagged as including potentially inaccurate information, given the ten-day period in which the CPSIA provides that the Commission is to post reports.

The Act provides, and sound public policy suggests, that the CPSC has an obligation to protect the integrity of the database. It is a well-worn and valid expression in the law of defamation that no matter how one tries, “the truth rarely catches up with a lie.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 n.9 (1974). For this reason, it is essential that the Commission address how it will identify and correct inaccurate information before it is posted online. Indeed, the CPSIA provides that if the Commission determines information in a report (or comment) is inaccurate, it can decline to add the information to the database, correct the materially inaccurate information, or add information to correct the inaccurate information. This provision should be viewed as providing the Commission with sufficient authority to investigate a report on which there is a legitimate question raised regarding its accuracy, and make any necessary changes, before it is publicly posted online.

It is also important that the Commission develop a means to remove or correct inaccurate information promptly after it has posted the report online. Given the short time frame for manufacturers to comment on reports prior to publication, and the confidentiality of the source of the information, it is inevitable that information uploaded to the public database may only be revealed as inaccurate long after its publication. The CPSIA provides that the Commission must remove or correct inaccurate reports within seven days after it determines the information is inaccurate. The new law, however, does not provide a specific time period for the Commission to initiate and complete an investigation of whether or not challenged information is indeed inaccurate and to reach such a determination. Information of questionable accuracy should be temporarily removed from the Web site pending a Commission determination of its accuracy. Unless the information is removed pending investigation, it is possible that inaccurate information will remain online indefinitely. Alternatively, if material challenged as inaccurate remains online, then it is imperative that the Commission adopt a reasonable, but limited, time period for completing its investigation and reaching a determination on its accuracy.

How Will the Commission Filter Out Inappropriate Material?

In addition to the danger that that inaccurate information could harm the integrity of the database, inappropriate information not related to safety issues could have a similar effect. The product hazard database is limited to: 1) products within the CPSC's jurisdiction; and 2) reports of harm. Should reports reach beyond these bounds, important product safety information may be lost in the mix. As it develops the online reporting form, the CPSC should incorporate mechanisms that effectively discourage users from submitting inappropriate information.

The CPSC's jurisdiction is broad, but it generally does not apply to products that are regulated by other government agencies. Among these products are aircraft, alcohol, automobiles, boats, car seats, cosmetics, drugs, food, medical devices, pesticides, tires, and tobacco. It also does not have jurisdiction to address general dissatisfaction or allegedly unfair or deceptive business practices, which fall under the Federal Trade Commission (FTC) and state consumer protection agencies. In essence, the CPSC has gap-filler jurisdiction. A reportable “harm” under the CPSIA is defined by the Act as “injury, illness, or death” of the risk thereof.

Drop-down menus or checkboxes on the online reporting form may discourage users from submitting inappropriate information. For instance, at the outset of the process of submitting a report, users should be required to indicate the type of product involved. If the user selects a category of product that is outside of the CPSC's jurisdiction, then the Web site should direct the consumer to the appropriate federal agency, such as the Food and Drug Administration or National Highway Transportation Safety Administration. Next, the Web site should require the user to identify the basis of the report with the only permissible choices as “injury,” “illness,” “death,” “risk of injury, illness, or death,” or “not involving physical injury.” If a user chooses the final option, then the Web site should indicate that issues related to customer satisfaction or service, product quality, warranties, repairs, or unfair or deceptive practices should be directed to the manufacturer, the FTC, state or local consumer agencies, or a better business bureau or other organization. These mechanisms can help reduce the quantity of reports containing inappropriate information. Nevertheless, it is still possible, and perhaps likely, that reports related to actual or potential product harms will be intermingled with comments on the manufacturer that are outside of the purpose of the database. In such instances, the manufacturer should be able to flag such material for removal by the Commission.

Conclusion

The database concept is intended to protect the public and be a positive instrument for product safety. But like any other instrument, it should be tailored to do public good and not unfair and irreparable harm to manufacturers, consumers, or public confidence in the CPSC.

Victor E. Schwartz, a member of this newsletter's Board of Editors, is a senior partner in the Washington, DC, office of Shook, Hardy & Bacon L.L.P., where he is chair of the Public Policy Group. Cary Silverman is Of Counsel with the firm and testified before the CPSC on behalf of the U.S. Chamber of Commerce's Institute of Legal Reform regarding implementation of the public database.

Manufacturers have become accustomed to “reviews” of their products online. Whether on Web sites such as Amazon.com or retailer sites such as BestBuy.com, consumers scroll through comments on everything from the quality of the product to the level of customer service. They also take such reviews with a grain of salt. The reviews are usually anonymous and the motives of the poster unknown. Was it truly a stellar product or is the poster someone who would gain from increased sales? Was there a real problem with the product or did it break due to misuse? Was the customer genuinely dissatisfied or is the poster a disgruntled former employee or a competitor seeking to bring down the company?

Now, the Consumer Product Safety Commission (CPSC) is posed to unveil its own online reporting system and public database of actual and potential product hazards. However, unlike private retailer Web sites with reviews, the public places a great deal of reliance on information disseminated by the CPSC, particularly with respect to product defects and recalls. A case in point is the massive crib recall, which has led millions of parents and caregivers to seek a replacement for the popular drop-side design. When the CPSC speaks, people listen. And this official government database will provide the public with particularly serious information: whether a product caused or poses a risk of injury or death.

Potential Problems

Unless the CPSC implements adequate safeguards, information disseminated through the new online database may be wholly unverified. Posting inaccurate information, with a seal of government approval, would not only provide a disservice to consumers and cause irreparable damage to responsible manufacturers, but it would also harm the reputation of the CPSC and the level of confidence placed in reports issued by the consumer watchdog agency.

As the Commission develops the database, there are three important questions yet to be answered. First, what tools will the CPSC provide to manufacturers to identify inaccurate information? Second, what measures will the Commission take to keep potentially inaccurate information from appearing on the Web site and, after it is posted, how will it remove such information? Finally, how will the CPSC cull inappropriate information from reports?

Fortunately, there are mechanisms that the CPSC can and should put in place to ensure that the new database serves its intended purpose: to provide accurate information on product hazards so that consumers can protect themselves and make informed decisions, and so that manufacturers and retailers can promptly remove hazardous products from the market.

Database Basics

In 2008, Congress passed the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), Pub. L. No. 110-314. The legislation revitalized the CPSC, providing it with substantial new powers, penalties, and resources. Among its provisions is Section 212, which requires the CPSC to implement a publicly accessible, searchable, online database of consumer product incident reports.

The database will permit consumers, government agencies, health care professionals, child service providers, and public entities to submit reports of harm relating to the use of products regulated by the CPSC. The CPSIA requires that a report include, at minimum: 1) a description of the product; 2) identification of the manufacturer or private labelers; 3) a description of the harm; 4) contact information for the person submitting the report; and 5) a verification by the person submitting the information that the information “is true and accurate to the best of the person's knowledge.” Contact information of individuals submitting information to the database is confidential and will only be shared with the manufacturer if the individual submitting the report provides his or her express written consent. The CPSIA does not include a sanction for submitting false information.

Within five days of receiving a report, the Commission must, to the extent practicable, transmit the report to the manufacturer of the product at issue. According to a recent CPSC report to Congress, the agency plans to implement mechanisms that will provide near instantaneous notice to manufacturers and retailers that have registered their contact of reports involving their products. The manufacturer will then have an opportunity to submit comments to the Commission that state the company's position and request that its comments appear in the database alongside the report. The manufacturer also will have an opportunity to identify any confidential information that appears in the report and request that the Commission redact such material before it appears online. The CPSIA states, however, that the CPSC must post the report online within ten days of sending it to the manufacturer. This provides a very short window for the manufacturer to investigate and comment on the report. If a manufacturer submits a comment after the CPSC has published the report online, then the CPSIA states that the comment is to appear “as soon as practicable thereafter.”

Feedback

The Commission is currently in the process of gathering feedback from stakeholders regarding implementation of the database. On Nov. 10, 2009, the CPSC held its first hearing on the issue. Discussions will continue over the next several months with manufacturers, retailers, trade associations, consumer and other advocacy groups, state and local governments, and individual consumers. The database, tentatively to be located at “SaferProducts.gov,” is to go live no later than March 11, 2011 in accordance with the deadline set in the CPSIA.

Danger of Inaccurate Information

In the age of the Internet and 24-hour news coverage, information can spread in a moment's time around the world. There is a danger that inaccurate information regarding a consumer product can irreversibly damage the reputation of a company and the sales of its product. Inaccurate reports also provide a disservice to consumers, who may become concerned about a product they have purchased that actually poses no danger or who are misled in their purchasing decisions by such reports.

There are various reasons why inaccurate reports or inappropriate information may be posted on the CPSC's new database. First, the ease and informality of submitting an online report may result in careless submissions. For example, a consumer might experience an issue with a product at home, but then fill out an online report the next day while conveniently at his or her work computer. In such a situation, the risk that the customer might misidentify the manufacturer or the product model is high. We all have had the experience of quickly drafting an e-mail and hitting “send,” only to attempt to “recall” an error or inappropriate comment contained therein.

Second, users of the online database may submit reports regarding products that are outside of the scope of CPSC's jurisdiction. This includes, for example, reports regarding food or medicine. Online submissions may also include inappropriate information that is not related to product hazards at all, but the consumer's view on the product's quality, address warranty issues, or pertain to the manufacturer or retailer's customer service. Such information would detract from the purpose of the database: to focus on reports of serious bodily injury.

Third, individuals with ulterior motives may post inaccurate information to tarnish the reputation of a company or its products. For instance, individuals affiliated with a competing product manufacturer could submit a false report to gain an advantage over a competitor. A former employee with an axe to grind might let loose a torrent of reports to place the company in a bad light. Finally, personal injury lawyers and their surrogates may use the database to tarnish the reputation of a company for the purposes of pressuring it into an unfair settlement in product-related litigation. Unsubstantiated database reports may permit plaintiffs' lawyers to launch “fishing expeditions” against manufacturers in discovery and give rise to consumer protection or product liability lawsuits based on rumor and designed solely to extort settlement funds. These superfluous costs, in addition to unjustly harming the product manufacturer, may inflate product prices for consumers.

Whatever its source, as the CPSC develops its online public database, it is essential that it implement safeguards and procedures for promptly identifying and limiting the posting of inaccurate information and for promptly removing inaccurate information should it be released to the public.

Incorporating Safeguards

The CPSC's Sept. 10, 2009 report to Congress on the Implementation of a Searchable Consumer Product Safety Incident Database recognizes that “[m]anufacturers have a strong interest in verifying the accuracy of consumer complaints, protecting proprietary information and other trade secrets, and in rapidly responding to product incident reports.” It is imperative that the CPSC proactively prevent inaccurate information from reaching the public and, if posted, to promptly remove such material from the database.

The CPSIA provides that the public database must include a “clear and conspicuous” notice that the CPSC “does not guarantee the accuracy, completeness, or adequacy of the contents of the database.” Although the mockup of the Web site in the CPSC's report to Congress states that is only designated to highlight possible features, it does not display any such notice. The CPSC should place the mandatory disclaimer language in bold eye-catching letters on every page and report generated by the Web site so as to warn consumers that reports do not represent the views of the agency, but represent unverified information. From the dialogue at a recent Commission hearing on the matter, the CPSC seems likely to at least take this minimal step. Even if it does so, however, these reports will appear on the Web site of a federal agency in an official “product safety incident database” and, regardless of disclaimer, they are likely to be considered and relied upon by many in the public as absolutely valid. As the mock up of the Web site reads, the database is, after all, a “service of the Consumer Product Safety Commission.” Thus, the disclaimer provides only a starting point and is not a substitute to safeguards necessary to ensure that the database provides useful and accurate information on product hazards to the public.

How Will the Commission Identify Inaccurate Information?

If a report submitted to the Commission includes confidential material, such as trade secrets, the CPSIA explicitly provides a means for a manufacturer to designate information as such. This designation triggers the need for a Commission determination as to whether the information qualifies as confidential before posting the report online. If the report contains confidential material, then the Commission may not include the report in the public database until it has redacted the confidential information. While the CPSIA provides this mechanism for confidential information, and includes a means for a manufacturer to generally comment on a report, it does not specifically provide a means for a manufacturer to identify inaccurate material and request a correction or deletion.

As the Commission develops its “industry portal” to the database, where manufacturers will be able to login and submit comments on reports, it should provide a means for a manufacturer to flag information in a report as inaccurate, similar to the way that a manufacturer will be able to designate information as confidential. In addition, through the industry portal, manufacturers should have the ability to flag past reports as containing inaccurate information.

For instance, information the manufacturer believes is inaccurate might be highlighted with a yellow flag, while proprietary information might be highlighted with a red flag. The Commission has authority to provide such a mechanism based on its obligation not to post inaccurate information in the database and through the manufacturer's ability to comment on reports.

What Action Will the CPSC Take Once a Manufacturer Identifies Potentially Inaccurate Information?

There are lingering questions as to the extent of the CPSC's responsibility verify the accuracy of reports submitted to the public database. Some members of consumer groups argue, for instance, that including a prominent disclaimer that the CPSC has not verified reports and providing manufacturers with the ability to respond publicly to reports through online comments, is sufficient. They may also observe that the CPSIA requires the Commission to remove information that it determines is “materially” inaccurate and note that it would likely be impossible for the Commission's current staff to proactively verify each and every report. In addition, some members of the Commission have questioned whether they have discretion to hold reports that are flagged as including potentially inaccurate information, given the ten-day period in which the CPSIA provides that the Commission is to post reports.

The Act provides, and sound public policy suggests, that the CPSC has an obligation to protect the integrity of the database. It is a well-worn and valid expression in the law of defamation that no matter how one tries, “the truth rarely catches up with a lie.” Gertz v. Robert Welch, Inc. , 418 U.S. 323, 344 n.9 (1974). For this reason, it is essential that the Commission address how it will identify and correct inaccurate information before it is posted online. Indeed, the CPSIA provides that if the Commission determines information in a report (or comment) is inaccurate, it can decline to add the information to the database, correct the materially inaccurate information, or add information to correct the inaccurate information. This provision should be viewed as providing the Commission with sufficient authority to investigate a report on which there is a legitimate question raised regarding its accuracy, and make any necessary changes, before it is publicly posted online.

It is also important that the Commission develop a means to remove or correct inaccurate information promptly after it has posted the report online. Given the short time frame for manufacturers to comment on reports prior to publication, and the confidentiality of the source of the information, it is inevitable that information uploaded to the public database may only be revealed as inaccurate long after its publication. The CPSIA provides that the Commission must remove or correct inaccurate reports within seven days after it determines the information is inaccurate. The new law, however, does not provide a specific time period for the Commission to initiate and complete an investigation of whether or not challenged information is indeed inaccurate and to reach such a determination. Information of questionable accuracy should be temporarily removed from the Web site pending a Commission determination of its accuracy. Unless the information is removed pending investigation, it is possible that inaccurate information will remain online indefinitely. Alternatively, if material challenged as inaccurate remains online, then it is imperative that the Commission adopt a reasonable, but limited, time period for completing its investigation and reaching a determination on its accuracy.

How Will the Commission Filter Out Inappropriate Material?

In addition to the danger that that inaccurate information could harm the integrity of the database, inappropriate information not related to safety issues could have a similar effect. The product hazard database is limited to: 1) products within the CPSC's jurisdiction; and 2) reports of harm. Should reports reach beyond these bounds, important product safety information may be lost in the mix. As it develops the online reporting form, the CPSC should incorporate mechanisms that effectively discourage users from submitting inappropriate information.

The CPSC's jurisdiction is broad, but it generally does not apply to products that are regulated by other government agencies. Among these products are aircraft, alcohol, automobiles, boats, car seats, cosmetics, drugs, food, medical devices, pesticides, tires, and tobacco. It also does not have jurisdiction to address general dissatisfaction or allegedly unfair or deceptive business practices, which fall under the Federal Trade Commission (FTC) and state consumer protection agencies. In essence, the CPSC has gap-filler jurisdiction. A reportable “harm” under the CPSIA is defined by the Act as “injury, illness, or death” of the risk thereof.

Drop-down menus or checkboxes on the online reporting form may discourage users from submitting inappropriate information. For instance, at the outset of the process of submitting a report, users should be required to indicate the type of product involved. If the user selects a category of product that is outside of the CPSC's jurisdiction, then the Web site should direct the consumer to the appropriate federal agency, such as the Food and Drug Administration or National Highway Transportation Safety Administration. Next, the Web site should require the user to identify the basis of the report with the only permissible choices as “injury,” “illness,” “death,” “risk of injury, illness, or death,” or “not involving physical injury.” If a user chooses the final option, then the Web site should indicate that issues related to customer satisfaction or service, product quality, warranties, repairs, or unfair or deceptive practices should be directed to the manufacturer, the FTC, state or local consumer agencies, or a better business bureau or other organization. These mechanisms can help reduce the quantity of reports containing inappropriate information. Nevertheless, it is still possible, and perhaps likely, that reports related to actual or potential product harms will be intermingled with comments on the manufacturer that are outside of the purpose of the database. In such instances, the manufacturer should be able to flag such material for removal by the Commission.

Conclusion

The database concept is intended to protect the public and be a positive instrument for product safety. But like any other instrument, it should be tailored to do public good and not unfair and irreparable harm to manufacturers, consumers, or public confidence in the CPSC.

Victor E. Schwartz, a member of this newsletter's Board of Editors, is a senior partner in the Washington, DC, office of Shook, Hardy & Bacon L.L.P., where he is chair of the Public Policy Group. Cary Silverman is Of Counsel with the firm and testified before the CPSC on behalf of the U.S. Chamber of Commerce's Institute of Legal Reform regarding implementation of the public database.