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December 13, 2010

CPSC Promulgates Final Rule Regarding Publicly Available Consumer Product Safety Information Database

Bergeson & Campbell, P.C.

On December 9, 2010, the U.S. Consumer Product Safety Commission (CPSC) promulgated the final rule establishing a publicly available consumer product safety information database, as required by Section 212 of the Consumer Product Safety Improvement Act of 2008 (CPSIA). The database must be publicly available, searchable, and accessible through CPSC’s website. CPSC’s final rule interprets various statutory requirements pertaining to the information to include in the database, and establishes provisions regarding submitting reports of harm; providing notice of reports of harm to manufacturers; publishing reports of harm and manufacturer comments in the database; and dealing with confidential and materially inaccurate information. The final rule is effective January 10, 2011. According to CPSC’s website, it will launch the database on March 11, 2011. More information regarding the database is available online.

Under the final rule, to submit a report of harm for inclusion in the database, a consumer must describe the product involved, and at a minimum, include a word or phrase sufficient to distinguish the product as a consumer product, a component part of a consumer product, or a product or substance CPSC regulates. The consumer must identify the manufacturer or private labeler; describe the injury; provide information that will allow CPSC to contact the submitter; affirmatively verify that the report submitted is true; and give CPSC permission to put the report in the database. The final rule states that, “to the extent practicable,” CPSC will transmit a report of harm to the manufacturer or private labeler within five business days of submission of the completed report of harm. The manufacturer has ten business days to comment on the report, or submit a claim that the report contains confidential or materially inaccurate information, before CPSC posts it in the database.

The final rule includes provisions for a manufacturer or private labeler to register with CPSC. Under the final rule, there are several advantages to registration. Those who register may submit comments through a manufacturer portal that CPSC will maintain on its website. CPSC will use the method of transmission and contact information provided during registration to transmit reports of harm to a manufacturer or private labeler. For those who have not registered, CPSC “will send reports of harm through the United States mail to the firm’s principal place of business, unless the Commission selects another equally effective method of transmission.” Since CPSC must receive a request for the designation of confidential information within ten business days after CPSC transmits the report of harm to the manufacturer or private labeler, the method of transmission for reports will be critical. If a request for confidential treatment is submitted in a timely fashion, CPSC will either make a determination on the claim prior to posting on the tenth business day after transmittal or, as a matter of policy, redact the allegedly confidential information from a report of harm before publication in the database, until it makes a determination regarding confidential treatment.

As noted in our earlier memorandum available online, consumer product manufacturers should prepare now to respond to the reports of harm in the database. Manufacturers will need to ensure that reports of harm do not include materially inaccurate or confidential and proprietary information. Manufacturers will also need to weigh whether to prepare comments on the reports of harm for inclusion on the database. As CPSC notes on its website, from December 10, 2010, it is only 91 days until the public database launches.