In advance of a significant revision of the rules that govern the public disclosure of information about a retail product, the Consumer Product and Safety Commission (CPSC) is now soliciting counsel from any interested parties.
The rule in question is contained within section 6(b) of the Consumer Product Safety Act, originally designed in 1983. According to the rule as currently articulated, the CPSC is mandated to expeditiously notify either manufacturers or “private labelers” whenever it releases information to the public regarding a product that could impact a consumer’s decision to purchase it. The same provision also specifies standards regarding the nature of that disclosure, assuring that the information dispensed is fair, accurate and not unduly prejudicial to the consumer public.
The CPSC is now proposing that certain revisions to 6(b) be effected to accommodate ‘for the significant improvements in information technology that have occurred since the regulation’s adoption.” In other words, since information is now more readily available to the public without a mediating governmental agency, the strictures on CPSC disclosures will be loosened to account for the ease with which product information can be accessed.
There are many amendments proposed to 6(b) but the general thread that unites them is that the built-in presumption, whenever there is any ambiguity regarding the public’s knowledge of a product, to communicate more rather than less will be significantly curtailed. For example, those categories of information that are deemed publicly available on the internet will no longer fall under the 6(b)’s strictures. Also, the CPSC will only communicate that information to the public directly “obtained, generated, or received” by the agency avoiding the dispensation of redundant notifications. Additionally, nearly all communications dispatched from the agency to the public will now be done so via electronic media, streamlining the process and reducing costs.
Still, there are also ways in which manufacturers will be freighted with even further restrictions as well. For example, all firms will now be compelled to submit a “rationale” defending their objection to any disclosure of information initiated by the CPSC. Also, the CPSC wants to weaken the protections law firms have in shielding information from public disclosure on the grounds that such information counts as “work product,” and is, therefore, protected by client-attorney privilege.
Maybe the most controversial aspect of the new proposal is what was quietly excluded. The CPSC chose not to reinstate a hotly debated provision that automatically suspended 6(b) in the instance that a full investigation of a product was underway. In other words, if the CPSC initiated an independent investigation into a product, it could disclose information about that product as it prudentially saw fit, insulated from the objections of manufacturers. When this particular rule was introduced in 2012, manufacturers responded with angry indignation, calling it arbitrary and unfair, leaving them defenseless against the disclosure of unconfirmed and potentially damaging information. The National Association of Manufacturers, together with thirty-nine other trade organizations, sent the CPSC a public letter denouncing the rule.
Experts say that, for the most part, the revisions of 6(b) are minor and leave the core requirements unchanged. Still, since the legal stakes are so high, a lively debate will likely ensue. To follow the exchange between the CPSC and manufacturers, click here to be directed to a CPSC website.