The CPSC Product Safety Database – Who Can You Trust?

Posted: January 30, 2013

Everybody on the Internet knows that you have to be careful about where you get your information, particularly when you are trying to figure out what products are worth purchasing.  But what happens when the government posts information about specific consumer products?  How accurate is that information?

One of the most controversial aspects of the Consumer Product Safety Improvement Act of 2008 (CPSIA), a sweeping federal law effecting consumer product safety standards and modernizing the Consumer Product Safety Commission (CPSC), is its requirement that the CPSC establish and maintain an online searchable consumer product safety database.  The CPSIA requires that the database include “[r]eports of harm relating to the use of consumer products” that are received from consumers, government agencies, health care professionals, child service providers, and “public safety entities.”  15 U.S.C. § 2055a(b)(1)(A).  The database, accessible at www.SaferProducts.gov, currently contains approximately 9,000 reports of safety incidents submitted to the CPSC, concerning products as various as washing machines, mountain bikes, cribs, and superhero action figures.  Even before the database went live in March 2011, it was nicknamed the “Database of Doom,” with many critics predicting that it would raise unfounded fears about many consumer products and also lead to a boom in product liability lawsuits by enterprising plaintiffs lawyers who could now research potential cases in one neatly organized website.  A recent federal district court decision, however, could help reduce the possibility of inaccurate information being published.

In Company Doe v. Tenenbaum, Civil Action No. 8:11-cv-02958-AW (D. Md. Oct. 22, 2012), Judge Alexander Williams Jr. addressed the first legal challenge filed against the CPSC based on content to be published in the database. The case was brought by a company whose name and product have remained anonymous and who had been notified by the CPSC that a “report of harm” would be published.  Companies whose products are the subject of reports of harm receive advance notice that the report will be published and can object to publication on the ground that the report is materially inaccurate, although the discretion on whether to publish the report resides with the CPSC. Judge Williams issued a blistering 73-page opinion ruling against the CPSC, enjoining the agency from publishing the report about Company Doe’s product in the database and finding that its intention to publish a materially inaccurate report would violate the Administrative Procedures Act because its actions were both “arbitrary and capricious” and an abuse of discretion.  While the opinion, in its heavily redacted form, provides no details as to what exactly made the report materially inaccurate, it will likely provide helpful guidance as to when a report should not be published.

Company Doe objected that the report was materially inaccurate because medical evidence showed that the harm alleged in the report could not be linked to Company Doe’s product.  In fact, on multiple occasions, the CPSC even acknowledged that the report contained certain inaccuracies and proposed publishing the report in a revised form.  Company Doe maintained that the report was still baseless and inflammatory and would irreparably harm its reputation and financial well-being.  Judge Williams agreed with Company Doe that the CPSC’s actions were contrary to the CPSIA and the agency’s own regulations in that the report was not “related to” the consumer product.  The court found that the CPSC’s decision “to publish the report bears no sensible relation to the purpose the CPSIA aims to advance: to enhance the Commission’s capacity to disseminate information to consumers regarding unsafe products.”  The court further criticized the weakness of the report, calling it “rank speculation” and opining that the odds that Company Doe’s product was involved in the alleged harm were “significantly lower than a coin flip.”

Judge Williams further found that the report was materially inaccurate under the CPSC’s regulations because it was misleading, based on the false impression it created that Company Doe’s product played in the alleged harm, and because the information in the report was “so substantial and important as to affect a reasonable consumer’s decision making about the product.”  The court noted that, “the report bears the Government’s stamp of approval through its publication on an official website that, by its terms, is a repository of reports regarding ‘unsafe product[s].’”  One of the chief criticisms of the database is that it lends the imprimatur of government approval to claims about products that are not always investigated in depth, or at all, and that the public will believe that products are defective and dangerous when they are not.  In Company Doe, the CPSC pointed to the disclaimer posted on the website, which states: “CPSC does not guarantee the accuracy, completeness, or adequacy of the contents of the Publicly Available Consumer Product Safety Information Database on SaferProducts.gov, particularly with respect to information submitted by people outside of CPSC.”  The court, however, did not find the disclaimer compelling and stated that it was “boilerplate and would not interest an ordinary consumer.”  The CPSC also could not rely on the fact that companies who are the subject of reports can post a response to appear below the report on the database.  Judge Williams determined that “ordinary consumers would likely dismiss this measure as disingenuous damage control.”

It is too soon to say exactly to what extent Company Doe will cause the CPSC to refrain from publishing reports of harm on the database when questions are raised concerning their accuracy.  Although the CPSC recently dropped its appeal in Company Doe, its public statements have not indicated that it was changing any of its policies in response to the case.  As a practical matter, businesses who seek to avoid publication of reports about their products will surely hope that the CPSC exercises its discretion properly because of the relative high cost of bringing a challenge in court. Nevertheless, Judge Williams’ rebuke in Company Doe case should give the agency pause before publishing reports of harm that seem to dubiously link a consumer product to the alleged harm.

For more information, please contact Eric Unis or John Hutchins.