United States: CPSC Public Database: A 2011 Change To The Procedure For Filing Materially Inaccurate Information Claims Can Easily Be Overlooked

President Obama signed Public Law 112-28 ("PL 112-28") into law on August 12, 2011. PL 112-28 amended numerous provisions of the Consumer Product Safety Improvement Act ("CPSIA"). One such amendment made a notable change to the operation of the CPSC's Saferproducts.gov database with respect to claims that a database report contains materially inaccurate information ("MII Claims"). The new procedure mandates that database reports not be published for an extra five business days if an MII Claim is filed.

While the new process for MII Claims is now reflected in the Consumer Product Safety Act (and it appears that the CPSC is following it), the updated procedure is not well known within the regulated community. Potentially contributing to this general lack of awareness is the fact that the CPSC's database regulation and the agency's guidance posted on Saferproducts.gov have not been updated and reflect the law prior to the enactment of PL 112-28.

As amended, Section 6A(c)(4)(A) of the Consumer Product Safety Act ("CPSA") now states:

"If, prior to making a report . . . available in the database, the Commission receives notice that the information in such report . . . is materially inaccurate, the Commission shall stay the publication of the report on the database . . . for a period of no more than 5 additional days."

This amended language is important because, under the old scheme, the statute required the CPSC to publish a database report on the tenth business day after it was transmitted to a company without exception. This absolute ten day publication deadline created a scenario where an MII Claim could be submitted to the CPSC prior to the tenth day but the CPSC may not have had the opportunity to review and make a determination regarding the claim prior to publication of the underlying report.

Since the enactment of PL 112-28 in 2011, publication of database reports is now stayed up to an additional five business days when companies lodge an MII claim before the ten day publication deadline (for a total of up to fifteen business days before CPSC must publish the report). Even though the timeframe is still short, the additional five days do provide some extra breathing room to companies who wish to dispute a database report as materially inaccurate.

PL 112-28 also amended Section 6A(c)(5)(A) of the CPSA by changing the ten day publication deadline to a fifteen day deadline in instances where the database report is submitted without model or serial number information. The amendment also requires the agency to try and obtain the missing model or serial number (or a picture of the product that is the subject of report) and transmit that information to the product's manufacturer. Although this new procedure appears to have been followed by the CPSC since the enactment of PL 112-28, it is also not explained in agency guidance posted on saferproducts.gov or outlined in the CPSC's database regulation.

Companies dealing with database reports that are missing model/serial number information or that potentially contain materially inaccurate information should be aware of these important changes to the law enacted through PL 112-28. Even though CPSC appears to have internally implemented the new procedures, an update to the database regulation and Saferproducts.gov online guidance would undoubtedly be helpful. Until that happens, companies should make note of and understand the amended statutory deadlines for purposes of responding to a future database report.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Matthew R. Howsare
Charles A. Samuels
 
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