October 24, 2012
For now, Company Doe – the first to launch a court challenge against the publication of a complaint in saferproducts.gov, the publicly accessible database mandated under the 2008 Consumer Product Safety Improvement Act, will remain anonymous. A July ruling by a U.S. District Court judge, made public yesterday, maintains the seal on any records that identify the company, the product or the facts of the dispute.
The lawsuit centers on an unidentified incident filed by a local government agency, linking Company Doe’s product to an injury. The company objected strenuously to the report, claiming that it was inaccurate – a manufacturer’s main defense against the public release of any negative information about it. The CPSC staff, which opened an epidemiological investigation into the claim, tried to address the accuracy issue with the company. According to unredacted portions of the ruling, in determining that the report should go into the database, the CPSC relied on the representations of a staff engineering psychologist – a human factors expert who focuses on the interactions between humans and machines. The report was revised four times. But Company Doe called the report confusing and submitted medical evidence to rebut the complaint’s claims. At its heart, Company Doe’s argument was: the CPSC failed to link the alleged harm to the use of the product.
U.S. District Judge Alexander Williams Jr. agreed. He called the report materially inaccurate, injurious to Plaintiff’s reputation, and harmful to its economic interests. Williams partially granted Company Doe’s motion to seal the court records – to any part of a document identifying the complainant, the product or what happened – and he did so with pointed rhetoric.
“Acting otherwise would reduce Plaintiff’s first Amendment interest in petitioning the Court for redress of its grievances to a Hobson’s choice, a figurative fork that would fly in the face of fundamental notions of fairness,” Williams wrote in his decision.
The CPSC released a statement, affirming that one ruling would not shake the foundations of the database:
“With more than 11,000 reports of harm or potential harm publicly posted to date, the SaferProducts.gov consumer database continues to serve as a vital safety tool for use by parents, doctors, emergency responders, and consumers across the country to alert the public to potentially hazardous products.
The decision published yesterday concerning one incident reported to the saferproducts.gov consumer database does nothing to change the agency’s statutory mandate and enduring commitment to provide the public with a timely and searchable database containing reports of harm relating to the use of consumer products. Consistent with the decision, the Commission did not post the individual report.
The creation and operation of SaferProducts.gov since March of 2011 fulfills CPSC’s congressional mandate to establish and maintain a publicly available database on the safety of consumer products. We encourage consumers to continue to use the website to file reports of harm or potential harm with consumer products and to search for product incident reports and recall information.”
The legal battle played out publicly a year ago, into early January. Public Citizen, Consumer federation of America, and Consumers Union filed motions to oppose sealing the record as overbroad, antithetical to legal precedent and too restrictive of the public’s access to consumer product safety information. Then the case went underground – until yesterday, when the redacted case documents, including the judge’s decision, were released. The three consumer groups vowed to appeal the ruling.
“Adjudicating this first-ever challenge to the consumer product safety database in secret, based on secret evidence, and with a secret plaintiff, is at odds with the First Amendment and our tradition of open judicial proceedings,” said Scott Michelman, the Public Citizen attorney representing the three organizations in a press release. “The public has a strong interest in the outcome of this lawsuit and a correspondingly strong right to learn who is involved and the factual basis for the court’s decision to exempt a product report from the database.”
“The court blocked the CPSC from publishing a report of harm, but the facts underlying the decision are entirely blacked out,” said Rachel Weintraub, director of product safety and senior counsel for Consumer Federation of America. “The court’s seal prevents the public from assessing the court’s reasoning, and understanding its impact on the integrity of the CPSC database.”
In December 2010, the U.S. Consumer Product Safety Commission published a Final Rule that established a publicly accessible consumer product safety complaint database. For the first time since the commission was created, manufacturers would no longer control the flow of information about their products. Last March, the database went live.
This represented a sea-change for manufacturers, who have controlled the flow of public information for nearly three decades. Under the Section 6B of the Consumer Product Safety Act, manufacturers had veto power over what negative information the CPSC could disclose. It required the CPSC to gain prior approval from a manufacturer before releasing any information, allowed a manufacturer to prevent the release of any information it deemed “inaccurate,” and allowed a manufacturer to sue the agency to prevent the release of such information.
The consumer database, the agency’s first initiative in which 6b did not apply, took much of that control away from manufacturers, who lobbied hard to either make the reporting process more cumbersome for consumers or to create a counterbalance to negative reports about their products.
Rick Woldenburg, the head of an educational toy company, and a vociferous critic of the CPSIA, warned that the database could become “a breeding ground” for litigation and touch off a “feeding frenzy” at the plaintiff’s bar. In August 2011, Woldenburg retired his jihad:
“This exhausting journey came to a crashing end because I concluded that I am not able to engineer further relief from this terrible law. Congress, having finally passed a CPSIA amendment (HR 2715) after three frustrating years of our begging for help, is finished with this issue for good. They put an end to the lingering issues by cutting loose all the politically sensitive groups affected by the CPSIA (ATVs, bikes, books, resale goods). Those of us with working memories will recall the many words spoken over the last three years about the lead ‘dangers’ presented by these goods to justify their inclusion in the law in the first place. I guess Congress decided lead risks wear off for certain kinds of products. Interesting . . . .” he wrote in shutting down his anti-CPSIA website.
He declined to respond to an SRS question about whether the consequences he had envisioned had come to pass.
Vehicle owners have long had access to complaints filed to the National Highway Traffic Safety Administration. The public can search by make, model, model year and component, and read the unvarnished commentary of other owners. Automakers have no editorial powers, and NHTSA does not assess the accuracy of a report, unless it is prospecting the database for specific defect investigations.
Meanwhile, the General Accounting Office, as mandated by Congress, is now in the midst of an audit of Saferproducts.gov. The report, due out in March, will cover the CPSC’s outreach and marketing of the website, consumers’ perceptions of its usefulness, and who is using it.
“At this point, given the wide number of products covered, it’s still a fairly small sampling of data,” said SRS President Sean Kane, who testified before the CPSC about the creation of the consumer product database. “The database didn’t cause any major disruption to industry. We haven’t seen the sky falling in as many predicted. If anything, the complaint numbers are underwhelming. It would be helpful do additional outreach to professionals in the field – health care workers, first-responders, attorneys – people who are seeing firsthand the serious injuries and fatalities to give the CPSC better surveillance on more serious problems that are emerging.”