SaferProducts.Gov Raises Regulatory and Product Liability Exposure for Marketers and Manufactures27 Feb, 2011 By: Jeffrey D. Knowles, Jill B. Deal
Almost all marketers struggle with the implications of online rating websites, such as Yelp.com. The inability to mitigate baseless, malicious reviews is just one of the obstacles such sites present. On March 11, when the Consumer Product Safety Commission’s (CPSC) SaferProducts.gov database goes live, marketers can look forward to dealing with the same issues consumer sites present in a forum bearing the imprimatur of the federal government.
Designed to provide consumers with early warning of product defects, the new database poses a host of potential problems for manufacturers and private labelers. Among these issues are the broad scope of the database, wide latitude in who may file reports, and short response and publication deadlines.
The database will contain safety information about all products under the CPSC’s jurisdiction, including many products companies may not know are subject to CPSC oversight. This includes products covered by the Consumer Product Safety Act, the Poison Prevention Packaging Act, the Flammable Fabrics Act and the Hazardous Substances Act.
Included in the database will be reports of “harm.” The Commission will depend on its experience to determine whether a risk of “harm” is sufficient for publication to the database, and all indications are that the threshold for publication will be very low.
A broad variety of individuals may file reports, including consumers, relatives, health care and public safety professionals, and observers of the product being used. Competitors and lawyers seeking clients may also submit reports.
The CPSC will notify companies within five business days of the submission of a completed report, and companies have 10 business days to respond before the report is published. Because the consent of the filer is required before the CPSC can share much of the data collected, it will likely be difficult for companies to effectively investigate and respond to a report within the allotted time. If a serious incident is alleged, companies will have to decide, even without full information, whether the report automatically triggers regulatory reporting requirements for other agencies, such as the Food and Drug Administration (FDA).
Although only the manufacturer may comment on the report, any person may claim that a report and/or manufacturer comment contains materially inaccurate information. The CPSC has established an expedited review process for these claims, but participation in the review process will not delay publication of the report.
The risks posed by the database are very real. Before March 11, companies should determine which, if any, of their products and substances are subject to CPSC oversight and, if appropriate, register with the Commission at www.saferproducts.gov to receive reports quickly and maximize response time. Companies may also want to consult with legal counsel to develop standard operating procedures to minimize product liability exposure and ensure compliance with CPSC and other-agency regulatory requirements.
This piece is too brief to address all of the issues of which companies should be aware. Please visit www.Venable.com/CPSC-SaferProducts-Database for a more detailed overview of the database and its requirements.
Jeffrey D. Knowles is a partner at Washington, D.C.-based Venable, where he leads the advertising and marketing law practice. Jill B. Deal is a partner at Venable. They can be reached at (202) 344-4000, or via E-mail at firstname.lastname@example.org and email@example.com.