On August 14, 2008, President Bush signed into law The Consumer Product Safety Improvement Act of 2008. The bill, which was presented and passed due in large part to the rash of children's toy recalls, received almost unanimous bipartisan support in both houses of Congress, and represents the most extensive overhaul of the Consumer Product Safety Commission's (CPSC) powers since the Commission was established in 1972. The changes to the CPSC will directly impact all industries that produce or sell any of consumer products under the CPSC's jurisdiction.

One of the most notable changes to the CPSC's duties is the directive that the CPSC must create a publicly available, searchable "database on the safety of consumer products" that must be accessible through the CPSC's website. The CPSC must submit to Congress within 180 days of the passage of The Consumer Product Safety Improvement Act, or by approximately February 14, 2009, a comprehensive plan for establishing such a database.

The database must be established within 18 months after submission of the plan to Congress for the creation of such a database. The database will include reports received from consumers, health care professionals, child service providers, public safety entities and local, state or federal government agencies regarding product-related incidents. Importantly, the CPSC is not permitted to disclose the contact information of the person or entity who reported the consumer product incident unless the consumer or entity expressly consents to the disclosure of such information to the manufacturer. The statute does contain procedures which can be employed by product manufacturers to review the incident reports; however, these procedures only allow 10 business days for a company to receive, review, investigate and comment upon these incident reports. Additionally, there are very few grounds for objection to the inclusion of these reports in the CPSC's searchable database, which include objections based on the inaccuracy of the report or an objection to the inclusion of trade secret or confidential information contained in the report.

What It Means to You

The Consumer Product Safety Commission's database presents a challenge to all industries who manufacture or sell products within the CPSC's jurisdiction to ensure that incorrect, misleading and prejudicial information is kept off of the CPSC's website. This will be no easy task as companies will only be given 10 days to receive, review, investigate and comment upon any and all incident reports. Further, there are very limited bases upon which to object to the inclusion of an incident report in the database. It is, therefore, imperative that all industries who manufacture or sell products within the jurisdiction of the CPSC spend these next 18 months putting in place a committee responsible for processing the incident reports that will be included in the CPSC's database. This preemptive action will serve to cut down on the misinformation included on the CPSC's website, and will also serve to prevent frivolous product liability litigation that will likely stem from such a database. The attorneys at Cipriani & Werner are available to discuss your questions about this important change in consumer protection law.