Litigation Practice
MARCH 2011
BEIJING CHARLOTTE CHICAGO GENEVA HONG KONG LONDON LOS ANGELES MOSCOW NEW YORK NEWARK PARIS
The Consumer Product Safety Commission’s Publicly Available Database of Consumer Product Safety Information Goes Live Next Week: Are You Prepared? Plaintiffs’ firms seeking to drum up class action litigation against consumer products companies are always on the lookout for information that might lead to an aggrieved consumer who might serve as a willing class representative. In just a few days, a potentially vast source of such information will become readily available and easily accessible to the public. On March 11, 2011, the Consumer Products Safety Commission’s (“CPSC”) new “Publicly Available Consumer Product Safety Information Database” will go live at www.SaferProducts.gov. This database will allow the public to report an injury or illness, or risk of injury or illness, related to the use of any product within the broad jurisdiction of the CPSC. So long as a report meets a few basic requirements, discussed below, it will be published in the database – and therefore made available to the public – fifteen business days after the report is submitted. Reports published in the database will be searchable by date, product name and model, and the name of the manufacturer or private labeler. Because this database has the potential to become a clearinghouse of information for the plaintiffs’ bar, companies that manufacture consumer products – or sell them under a company brand – should take steps to become prepared to respond to a report concerning one or more of their products.
The Process and Requirements for Submitting a Report SAN FRANCISCO SHANGHAI WASHINGTON, D.C.
www.winston.com
Any consumer can file a report about a product. “Consumer” is defined broadly to include not only the person who used or was injured by the product, but also persons who witnessed the incident or observed the product in use, including family members, relatives, friends and agents of the person harmed by the product. In addition, government and public safety agencies, health care professionals and child service providers can also submit reports. Reports can be submitted online, by telephone or facsimile, or by mailing a report to the CPSC. To become published in the database, a report must contain the following information: •
A description of the consumer product;
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The identity of the manufacturer or private labeler;
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A description of the harm (defined as “injury, illness or death; or risk of injury, illness or death”) caused by the product;
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The date of the incident;
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The category of the submitter of the report (e.g., consumer, government agency, health care professional, etc.);
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Contact information of the submitter;
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Verification of the truthfulness and accuracy of the report; and
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Consent to the publication of the report.
Notably, while a submitter of a report is required to verify the truthfulness and accuracy of the report, the CPSC has already disclaimed any guarantee that reports published in the database will be accurate or complete.1 Also, the CPSC will not release the submitter’s contact information to the manufacturer or private labeler without permission by the submitter, and the submitter is not required to make the product or accident scene available for inspection prior to publication of the report. A manufacturer or private labeler does have the ability to respond, however, before the report becomes a matter of public record.
Responding to a Report Once a report is received, the CPSC will transmit the report to the manufacturer (or private labeler) within five business days for review and comment. The manufacturer can submit comments at any time. However, the report will be published in the database ten business days after it has been transmitted to the manufacturer, unless the CPSC determines, prior to publication, that the report contains materially inaccurate information. Also, if the CPSC determines that a report contains confidential information prior to publication, that information will be redacted. It is important to note that simply submitting a claim that a report contains materially inaccurate or confidential information within the ten-day deadline does not guarantee that the information will not be published. The information claimed to be materially inaccurate or confidential will be omitted or redacted from the initially published report only if the CPSC has determined that the information is, in fact, inaccurate or confidential before the ten day deadline expires. Therefore, it is critical for manufacturers to have a procedure in place to immediately review and respond to reports once they are received from the CPSC. The following are five steps your company can take now to be prepared to respond to reports of harm in a timely manner. 1. Become Familiar with www.SaferProducts.gov. This is the website where the database can be accessed by consumers and manufacturers. 2. Register for the Business Portal. Go to www.SaferProducts.gov and click on the blue button on the left-hand side labeled “Business Registration” for step-by-step instructions. Once registered, businesses can receive reports of harm via email and submit responses to reports via this website. 1
See http://www.saferproducts.gov/faqs-consumer.html#accuracy (last visited March 3, 2011).
3. Develop and Implement a Protocol for Responding to Complaints. Determine the sequence of steps your company will take to respond to reports of harm for each category of product you sell. Identify key personnel who can implement these steps within the ten-day period before a report is published. Distribute the protocol to these personnel and arrange for brief training sessions to ensure that each individual understands his or her responsibilities for responding to reports of harm. 4. Create a Strategy for the Message to be Conveyed when Responding to Reports. A company can elect to have its comments to a report published in the database along with the report itself. An inaccurate or poorly worded response that is posted in the database may provide bulletin board material for a plaintiffs’ lawyer looking to commence litigation. Alternatively, a well thought out response may dissuade plaintiffs’ counsel from pursuing a lawsuit. Therefore, the response to any report must be carefully and deliberately worded. Key messages that might be conveyed in a public comment include: (1) expressing appreciation for the comment and emphasizing the importance of product safety to the manufacturer/private labeler; (2) encouraging other consumers with a similar problem to contact the company directly; (3) informing consumers of any pre-existing remedial programs (e.g., warranty extension, repairs, replacement products); and (4) if appropriate, noting that the company lacks access to the product or accident site, is unable to conduct a full investigation within the small timeframe to respond, and/or is unable to rule out product misuse or alteration based on the contents of the submitter’s report. Because a plaintiff may later try to use a public comment against a company in litigation, inhouse or outside legal counsel should be included in the process of preparing a public response. 5. Contact Licensees and Licensors. Many consumer products are licensed products that are manufactured by entities other than the brand owner. This may cause consumers to incorrectly identify manufacturers or private labelers in their reports of harm. If this is the case for your company, contact any relevant licensees and licensors and put in place a formal agreement to contact one another in a timely manner if a report of harm is received.
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It is too early to tell how many consumers and others will submit reports of harm to the CPSC database, and whether plaintiffs’ firms will seek to utilize the database as a means to identify potential new lawsuits and clients. However, preparing a plan for responding to reports of harm now may help reduce the risk of future litigation.
If you have any questions regarding any matters discussed in this briefing, or if you would like to discuss the specific steps your company can take to be prepared in the event you receive a report of harm from the CPSC, contact any of the Winston & Strawn attorneys listed below or your usual Winston & Strawn contact. Washington John Moss
Los Angeles Neal Marder Christian Dodd
[email protected]
(202) 282-5687
[email protected] [email protected]
(213) 615-1728 (213) 615-1717
These materials have been prepared by Winston & Strawn LLP for informational purposes only. These materials do not constitute legal advice and cannot be relied upon by any taxpayer for the purpose of avoiding penalties imposed under the Internal Revenue Code. Receipt of this information does not create an attorney-client relationship. No reproduction or redistribution without written permission of Winston & Strawn LLP. © 2011 Winston & Strawn LLP
