An unnamed company has taken the first step in challenging the Consumer Product Safety Commission's (CPSC) online complaint database. No information is currently listed in Pacer, the federal court filing system, but the Washington Post reported that a complaint was filed Monday in Maryland District Court. The company that filed the suit is listed as "Company Doe" to protect its name – the exact reason that it filed the complaint in the first place.
On August 14, 2008, the Consumer Product Safety Improvement Act became law and mandated that the CPSC create an online portal for customers to post complaints about products that can either injure children or pose fire, electrical, chemical, or mechanical hazards. The Act sought to provide consumers with timely information about potentially unsafe products, so consumers would not have to wait for a recall to get the information. However, the database has been criticized because of accuracy issues and the burden it places on manufacturers.
Anyone can file a report in the database, found at www.SaferProducts.gov. , but a report is not eligible for publication unless it contains: (1) a description of the product; (2) the name of the manufacturer; (3) a description of the injury or risk of injury caused by the product; (4) the date that the incident occurred or risk of injury was discovered; (5) the type of reporter (consumer, agency, child service provider, etc.); (6) the reporter's name and address (this is not published); (7) the reporter's acknowledgement that the report is true and accurate; and (8) whether or not the reporter wants the information published.
Once a report is filed online, the CPSC has five days to review it before sending it to the manufacturer. However, the CPSC's "review" only entails ensuring that the minimum publication requirements have been met; the CPSC does not conduct any type of fact-finding investigation. Instead, the burden is placed on the manufacturer to prove that the report is untrue, and it has just ten days to prove it. If a report ends up being published, manufacturers can have their comments published with the report, but the CPSC does not always process comments in time to publish them the same day the report is published, and posting a comment is little consolation if a report is untrue.
Since its inception, the database has been criticized for not requiring more information to reduce inaccuracies, such as a product serial number. And the fact that manufacturers have to conduct all of the fact-finding and essentially prove themselves innocent seems a bit backwards considering anyone with access to a computer can file a report.
Given these circumstances, it was only a matter of time before a company stepped up and challenged the system. Consistent with argument that the database needlessly harms the reputation of manufacturers, the company has filed the lawsuit anonymously. Whether or not the court will allow the company to remain "Company Doe" presents another question altogether. But either way, this case could have major consequences for the CPSC database, and is definitely one to watch.
William F. Auther is a partner with an active trial practice in product liability and business litigation and Kelly M. McInroy is a law clerk in the Phoenix office of Bowman and Brooke LLP.