The Right Way and the Wrong Way



On the eve of a vote on a Final Rule to establish the new database, U.S. Consumer Product Safety Commissioners Anne Northup and Nancy Nord, have proposed an alternative to newly mandated consumer product safety database from that recommended by the staff. In a recent blog post entitled, “A Wrong Way and a Right Way – Which Will We Choose?” Commissioner Nord details the specific aspects of the database rule that prompted this Hail Mary pass: who can submit complaints and inaccurate information.

“Congress provided us with a list of those whose complaints should go up on the public database.  We have contorted the plain language Congress used into definitions that have no meaning.  For example, Congress told us to accept complaints from “consumers.”  The majority has determined that since everyone consumes something, we need to accept complaints from everyone—no need for any relationship to the product, harm or incident.  Think plaintiff lawyers trolling for clients or unscrupulous competitors wishing to harm a product’s reputation,” Nord writes.

The corrections include a specific list who can submit a report of harm that excludes categories of submitters included in the Final Rule draft. (Hint: trial lawyers and competitors are not on it.) Nord and Northrup also nixed “investigators, professional engineers, agents of a user of a consumer product, and observers of the consumer products being used,” as well as “consumer advocates or individuals who work for nongovernmental organizations, consumer advocacy organizations, and trade associations, so long as they have a public safety purpose.”

As for solving the inaccuracy conundrum, the commissioners proposed changes that would add a lot more hurdles to submitting reports – including the first and last name of the harmed consumer, along with a complete mailing address, telephone number and e-mail address. (In the rush to get this out, they must have forgotten to ask for the consumer’s Facebook friends.)

Sorry, we’re going to have to file this one under: Sky, Not Falling.

By the by, are we looking at some kind of violation of the Administrative Procedures Act? As far we know, the Commission is five days away from a vote on a Final Rule and the comment period is closed. We believe that means that all trial balloons are – for the moment – grounded.