Consider This: New CPSC Complaint Database Is Trap for the Unwary

Manufacturers should gear up for this new system or face significant risks.

No matter how extensive your design process may be, it is almost impossible to foresee all product failure modes and eliminate them. Consumers think up new ways to use and abuse products that you never anticipate. And then there is the irritating intervention of physics -- no matter what you do, in some cases, glass will break, electrical connections will corrode and overheat, and water will leak.

Most information on product failures comes from consumers. Most manufacturers have a toll-free hotline staffed by call takers who can diagnose consumer problems and arrange for service if necessary.

Consumers can also complain to the Better Business Bureau, the local TV station or the countless blogs and websites that collect consumer complaints.

Now Congress has created a new public repository of consumer product complaints. The law passed in 2008 to respond to excessive lead in children's toys contained a requirement that the Consumer Product Safety Commission (CPSC) implement a searchable electronic database of consumer complaints by March 2011.

Significant Change

Consumers have always been able to register complaints about products with the CPSC, and the CPSC has always been required to make them available pursuant to the Freedom of Information Act. Is the database a significant change from the existing process?

You bet it is. Currently, anyone can file a request with the CPSC for the release of documents. CPSC staffers must search their records each time a request is made, leading to inconsistent responses to identical requests. Before the documents can be released, the CPSC is required to give the manufacturer of each product included in a complaint 15 days to review the documents identified by the CPSC staff and correct any errorssuch as the inclusion of the wrong product complaints or documents that are confidential and cannot be released. This 15-day deadline is tight, but the CPSC has been reasonable about extensions if needed and has taken the time to review comments carefully.

The new database will eliminate the role of the CPSC as the reviewer and compiler of data. The requester will perform the search using normal database search techniques. The search will be free, and the requester can print as many copies as it likes, immediately upon completion of the search.

What's not to like? Strict time limits imposed by Congress will significantly limit the ability of manufacturers to review proposed releases to correct mistakes or errors, thereby decreasing the reliability of the information and increasing the potential for harm to manufacturers.

The new law states that consumer reports should be sent to manufacturers within five days of filing with the CPSC and that the reports must be put in the database within 10 days after that, unless the CPSC agrees that the report is inaccurate. Even if the manufacturer has reviewed the reports and sent objections to the CPSC in time, there is no legal obligation for the CPSC staff to resolve the issues raised by the comments before the report is included in the database. If the CPSC has not completed its analysis, or if it disagrees with the manufacturer, the complaint goes public.

Incomplete or inaccurate consumer reports remaining in the database present significant risks to manufacturers. It will be very difficult for you to comment effectively within the time allowed, so even obviously incorrect reports are likely to be included in the database and available to consumers, reporters or advocacy groups. Complaints in the database also will be reviewed by the CPSC staff, and unless they are refuted by hard data, the CPSC could perform compilations that may lead it to believe that a substantial hazard is presented by your product. Finally, plaintiff's attorneys will use these complaints to prepare class action petitions, which will require significant resources to derail or defeat.

What Should You Do?

Clearly, the deck has been stacked against the manufacturer. What should you do about it? Here are two things you should do right now.

Tell the CPSC who should receive complaints about your products
Much of the delay in reviewing documents currently is due to delays in getting the complaints to your company in the first place. Frequently, CPSC sends the records to the wrong office, and considerable time is wasted getting the documents to the experts who can review them for accuracy. Fix that now. Find out who in your company is receiving these reports and tell CPSC to change the addressee to a person you select.

Respond quickly and carefully to inaccurate reports of harm
Obviously, you should respond quickly when you find a report to be inaccurate, misleading or wrong. But respond carefully as well. Given the extremely short time frame allowed to comment and for the commission to make a determination (10 days total), you should direct your comments to objective errors of fact and clearly demonstrable improper comments. Follow the first rule of parenting: Save it for the big stuff.

Object if the complaint involved is not your product, and you can show it conclusively. Object strenuously if the "report of harm" is not a report of harm at all, but rather is a generalized attack on your product. The new database can include pictures or video: Object if the pictures are doctored or staged. Don't argue that the consumer was mistaken in his observation (unless you have service records that support your claim) or made too much of a minor issue. You will never win these arguments, and all you will do is add a document to the database that someone else (plaintiff's lawyer, for example), may obtain and use later against you.

March seems like a long time away, but it's not. You have to find knowledgeable reviewers and create business systems that will execute quickly. If you need new software systems of your own, you are probably already too late. Time to get serious about thisyour company's reputation is at stake.

Lee Bishop is counsel with Miles & Stockbridge's Products Liability Practice Group. Previously, he was senior counsel for Product Safety and Regulatory Compliance for General Electric Co.'s consumer products, lighting and electrical industrial equipment businesses.

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