November 9, 2010
After taking comments from the public, and by that we mean, the remarks of a handful of advocates and consumers and the complaints of 33 trade organization reps and business owners, the U.S. Product Safety Commission is now preparing to vote on a Final Rule to establish a consumer complaint database.
The database represents a sea-change in the accessibility of consumer product information, wresting control from manufacturers, who held sway over the flow of public information for nearly three decades.
SRS President Sean Kane, who testified before the CPSC at a public hearing on the database, urged the agency to build a public database by fusing sufficient detail on the product and problem and public availability of the data in a timely fashion.
“The success of the database to meet the public interest goals and facilitate ease of use requires the agency to balance what is absolutely necessary for a minimal level of information to qualify as a “complaint,” against the detailed information demands of the agency and other stakeholders. Like the NHTSA consumer complaint database, the consumer product database will add to the tools available for surveillance and for educating consumers who often have little viable information on the potential hazards associated with products they purchase,” Kane said in comments to the commission.
The creation of the rule began in May, with a Notice of Proposed Rulemaking. Since then, the CPSC has been striving to maintain the balance between the fears of consumer products manufacturers, the requirements of the Consumer Product Safety Improvement Act (CPSIA), and the suggestions of advocates.
A vote of the full commission is scheduled for Nov. 17.
“This is an important step forward for product safety,” Kane said. “For the first time, consumers are going to have tools, pre- and post-purchase, to evaluate a product’s safety, even in the absence of a recall.”
According to Section 212 of the CPSIA, the database must be available through the CPSC website and presented in a user-friendly format that encourages the public to report injuries and defects. In addition to consumer complaints, the database will include the reports that manufacturers and private-label firms are required to make under Section 15(c) of the CPSA and the actions the agency makes in response to that information.
Manufacturers have been none-too-happy with the way the CPSIA cut the legs out from under 6B—the bane of consumer and safety advocates. Under the Section 6B of the Consumer Product Safety Act, manufacturers controlled what negative information the CPSC could disclose. It required the CPSC to gain prior approval of a manufacturer before releasing any information, it allowed manufacturers 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 to which 6B does not apply, took the gate-keeper role 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. The amendments are nips and tucks to the NPRM, but still keep the database weighted toward the needs of consumers.
For example, some commenters maintained that the minimum information required to
submit a report of harm for inclusion in the Database was not detailed enough for “those reviewing the report to understand the incident adequately, to weed out duplicate reports, and to promote investment in the report and Commission activities by the submitter.” Without meaningful information, a manufacturer couldn’t adequately respond to a complaint, rendering the database information “inaccurate.” Another argued that without complete information, the complaint shouldn’t be included at all.
The staff declined to take up those suggestions.
“Determining why an incident occurred can sometimes be a time-consuming process; yet section 6A of the CPSA, by establishing procedural requirements that are measured in days, requires reports of harm to be posted in the Database quickly. Thus, we cannot refrain from processing or publishing reports of harm to await a final determination of why an incident occurred.”
Instead, the proposed Final Rule added “category of submitter” and “incident date” fields to help users distinguish duplicate reports and provide context about the source of a complaint. It also changed the proposed rule to give manufacturers two more categories in which to dispute a complainant’s account. The original proposal let a manufacturer or private labeler claim inaccuracies based on the description of consumer product; identity of the manufacturer or private labeler; and description of the harm. The proposed Final Rule would also allow manufacturers to claim an inaccuracy in the reported incident date and category of submitter.
According to the staff’s analysis, “no more than an additional five percent of small manufacturers of consumer products will be affected by the Database rule annually. Of the roughly five percent of small manufacturers receiving incident reports, only a very small percentage of the incidents reported would merit a large investigation effort. Based on the CPSC’s Freedom of Information Act (“FOIA”) experience, it is rare that a small firm devotes substantial time and effort responding to incident reports. Thus, while it is possible that a small number of small businesses may experience a “significant” impact in investigating certain incidents, the number of small businesses experiencing such an impact would not be “substantial.”
CPSC Spokesman Scott Wolfson said that all the amendments served one purpose: to make the database as factually accurate as possible, “to ensure the highest value level of trust in the database once it goes live.”
After the Final Rule is passed, the CPSC expects to launch the database in March.
“There is a plan to do some advance testing to assess the industry’s experience and consumers experience with the database,” Wolfson said. “We are on target and on budget.”