Archive for November, 2010

“Materially Inaccurate” Majority


During last week’s debate over the public database, my colleagues claimed the need to do an end run around a provision in the Consumer Product Safety Act known as section 6(b).  The majority’s official statement specifically  asserts that the database “is a dramatic and positive change from the current system (commonly known as ‘section 6(b) procedure’), where the Commission is required to consult with manufacturers before warning the public about critical product safety hazards, and seek their approval before releasing the name of the potentially dangerous item.”  The majority suggests that information cannot be released without approval of the manufacturer, but this is materially inaccurate.  Whether the majority lacks understanding how the law reads or intentionally seeks to confuse the issue, the result is the same: the public is misled. 

Section 6 (b) of the Consumer Product Safety Act states that before we release information that identifies a product or manufacturer, the agency must take reasonable steps to assure the accuracy of the information, including giving the manufacturer 15 days notice of a proposed release of information.  If we decide to release the information over the objection of the manufacturer, we must notify the manufacturer of our decision five days before our release.  In theory, the manufacturer then can go to court to block it.  In the last twenty years at the commission, we have released much information on countless occasions and I am aware of only two attempts to block release;  neither succeeded.  Additionally, if we determine that public safety warrants, we may release the information immediately without providing 15 day notice. 

The majority’s misstatements have now been picked up in the media where I have read several stories that make the inaccurate assertion that information will not be released without manufacturer approval.  For example, in a Bloomberg story last week, an incorrect statement, attributed to a fellow Commissioner, said  “The agency has been required to get company permission to make such information public. . .”. Though the publication may not be well-versed in our intricate laws, my fellow Commissioner should be.

Press reports misstating the law tend to be repeated as absolute fact.  Of course this example of turning fiction into fact is the same concern that has been expressed about the database itself.  Once information is published on a federally-sanctioned web site, it becomes “true” regardless of the actual facts.  The majority knows this.  Accidental or intentional, a misstatement is a misstatement nevertheless.  And nevertheless, it is now repeated as fact.   A bit more fact checking would do all of us good; most of all, the consumer.

Here’s Your Turkey, Early

Unfortunately, today the Commission voted to approve a highly flawed final rule to establish a public database of consumer complaints. While, on its face, this seems like a worthy project, once you get into the details of what will and will not be posted, the problems with the majority’s proposal are like ingredients in a bad holiday recipe. In addition, the lack of any effort by the majority to reach out and come to a consensus on the issues Commissioner Northup and I raised in our substitute proposal is glaring.

Instead of limiting the people who can post a complaint to those with first-hand information about the incident, anyone can post a complaint–trial lawyers trolling for clients, unscrupulous competitors looking to damage a business or its reputation, or the gossiping neighbor down the street who heard the story “through the grapevine.”

Instead of requiring submitters to at least put the location of the incident or the model number of the product, complaints could be filled with only sketchy information that is of little use to anyone.

Instead of verifying that the information posted to the database is correct, CPSC is under no obligation to confirm the accuracy of information submitted, even when the accuracy is challenged. And while it is clear the CPSC will not investigate most of these claims, when we do, we are not planning on telling consumers the results. It appears once the complaint’s there—accurate or not, it’s there indefinitely.

We had the chance to make the database a helpful tool for consumers, but instead it will potentially become just another sink hole for complaints, but with the apparent ‘seal of approval’ that comes from being on a federal government website. We had the opportunity to get it right but instead have chosen to spend taxpayers dollars (approximately $29 million of them) to construct something that could well mislead consumers and undermine our safety mission. Consumer safety is not advanced by such a result.

This expensive bird is burnt, dried out and not fit for serving the consumer.

Here’s my official statement  on the issue.

A Wrong Way and A Right Way—Which Will We Choose?

On November 17, the agency will vote on the rule finalizing the blueprint for the public database of consumer complaints mandated by the CPSIA.

Everyone seems to agree that the purpose of the database is to assist consumers in understanding risks, and in making well-informed choices about products they buy and use.  Indeed, in a recent article, an advocate for the database argued that folks should stop fighting about it and that “time would be better spent in ensuring it is as accurate and useful as possible.”  At last, something we can all agree on! 

My colleague, Commissioner Northup, and I agree that the database will be a useful tool for consumers only if it is accurate.  We have spent hours debating this point with the other commissioners.  On November 17, we will once again make the point that the database will not serve its purpose if it is a “garbage in/garbage out” grab bag of unsubstantiated complaints from any source. 

With respect to the database, there is a right way to do it and a wrong way to do it.  Unfortunately, so far a majority of my colleagues have not chosen the right way.  This is unfortunate because the approach insisted upon by the majority will not allow the database to achieve its objective.  While there are a number of objectionable provisions in the draft final rule, here are two issues that are especially problematic:

  • Who can submit complaints—Congress provided us with a list of those whose complaints should go up on the public database.  We have contorted the plain language Congress used into definitions that have no meaning.  For example, Congress told us to accept complaints from “consumers.”  The majority has determined that since everyone consumes something, we need to accept complaints from everyone—no need for any relationship to the product, harm or incident.  Think plaintiff lawyers trolling for clients or unscrupulous competitors wishing to harm a product’s reputation. 
  • Treatment of inaccurate information—Consumers are not served, and could be harmed, by a database with inaccurate information.  While Congress seemed to suggest a process for correcting inaccuracies, the rule has been written so that the agency is under no obligation to address such misinformation.  There is a real chance this could be a “post it and forget it” exercise.    

Since Congress has been clear in its direction to establish a public database, let’s try to do it right.  Commissioner Northup and I have redrafted the proposed rule to try to address the many issues that were raised in the comments the agency received.  If you click here, you will be directed to that redrafted rule.  Time is of the essence since the vote is in a little more than a week.  Please quickly send back your reaction to this draft. Help us get it right.  We intend to offer it as a substitute when the commission takes up this matter on November 17.  Please send me your reaction to the proposal either post it here on the blog or email it to me at

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