CPSC May Limit Manufacturer Protections on Information Disclosure

The Consumer Product Safety Commission (“CPSC”) is proposing changes to its regulations that will likely minimize manufacturers’ protections relating to information disclosure.  Under Section 15(c) of the CPSA, manufacturers that may have created a defective product must file notice with the CPSC.  This voluntary notice filing is generally followed by a request from the CPSC staff for substantial additional information in preparation for a possible recall.

The success of this system depends entirely on companies’ willingness to participate.  Traditionally, companies believed that it was better for business to volunteer information to the CPSC and initiate product recalls rather than go through the lengthy and expensive process of adjudicating whether a particular product was defective or non-compliant.  Despite this cooperative philosophy, CPSC-coordinated product recalls are often followed requests for information under the Freedom of Information Act (“FOIA”) by class action plaintiff’s counsel looking for their next case.

Under Section 6(b) of the Consumer Public Safety Act (“CPSA”), the CPSC must give a manufacturer at least 15 days’ notice prior to publishing product information that could readily identify the manufacturer.  This time period provides companies with an opportunity to object to the release of information that may be false or baseless.

In late February of 2014, the CPSC released a Notice of Proposed Rulemaking (NPR) concerning Section 6(b) that has the potential to dramatically alter the CPSC’s current information disclosure practices.  If adopted, these proposed changes would limit the circumstances in which business information would be kept confidential.  Specifically, the proposals would shift the burden from the CPSC to the company to show why disclosure is not necessary for fairness.  The proposed changes would also remove the requirement that the CPSC evaluate information for attorney-client privilege and work product prior to disclosure.  Finally, the proposed changes would remove the requirement that the CPSC give notice to manufacturers before releasing information that is “substantially similar” to information in an earlier release.

The CPSC is accepting comments from the public on the proposed changes until Monday, April 28th.   Nicolson Law Group recommends that manufacturers review the proposed rules to evaluate their potential impact.

The information herein is provided for consumer educational purposes only.  The statements contained herein are general statements of law, as of the date stated, and there may be exceptions that are not set forth below, or changes due to later legislative developments and/or newer case law.  The Nicolson Law Group does not suggest that any provision contained herein will or must apply to any specific issue or case.  For legal information and advice for any particular matter, you are encouraged to consult advice from one of Nicolson Group’s licensed attorneys.