Earlier this week a friend told me that unfair and misleading information had been put on his Wikipedia page without his knowledge. While I have no idea how things get posted on Wikipedia, I do know that, with greater frequency, Wikipedia posts are being cited as fact. And I could not help but think about how the process of morphing disinformation into “factual” information would be accelerated if the federal government could cite, use, and repost information found on the internet without making efforts to verify the validity of that information.
Unfortunately, that is exactly what the CPSC is suggesting it be able to do in a proposed rule that would “modernize” its regulations dealing with information disclosure. The law requires that the public disclosure of any information obtained by the agency that identifies a manufacturer or product be accurate and fair. The current regulations set out a process for checking with the product manufacturer to verify the accuracy and fairness of the information proposed to be disclosed. The agency now proposed to substantially change the rules with respect to how it carries out its responsibility to assure the accuracy of the product-specific information it publicly discloses.
Among other things, the agency wants to republish with impunity information about a product that has already been made public, including information on the internet. The agency would have no obligation to go back to the manufacturer to verify the accuracy of the information it proposes to republish. Apparently checking the validity of such information is just too much of a burden. And publishing unverified information by the federal government lends credence to that information, regardless of its accuracy.
While I leave to others to opine on whether this comports with the letter of the law, it certainly violates the law’s spirit. My friend discovered that, on the web, anyone can say anything about you. But is it right that this behavior be condoned and promoted by the federal government?
There are a number of other troublesome changes being proposed by the CPSC’s proposed rule on information disclosure. Comments on the proposal (Docket No. CPSC-2014-0005) are due on April 28. Anyone concerned about agency fairness should read the proposal, go to regulations.gov and submit comments.
The Side Effects of Tweaking
Published January 16, 2014 Comment Request , CPSC , Information Disclosure , Recalls Leave a CommentTags: CPSC, Information Sharing, Recalls
Much has been written here and in other publications about the substantive impacts of the CPSC’s proposed changes to the rules dealing with voluntary recalls. The substantive nature of the proposed amendments cannot be discounted even though certain commissioners persist in describing them as only “tweaks.”
As commenters analyze the impacts of the proposed changes, it is important to look at how these changes impact other rules that stakeholders and the commission operate under, specifically those dealing with submission of information under §15(b) and disclosure of information under §6(b) of the Consumer Product Safety Act. Former CPSC general counsel Cheryl Falvey has written an interesting piece that discusses that interrelationship. It is worth reading and thinking about.
Information submitted to the agency under §15(b) is exempt from disclosure except under limited circumstances as described in §6(b)(5). This protection is to provide incentive for companies to fully report information the agency needs to analyze a risk without having to worry that sensitive product information is made public unfairly or prematurely. One of the exemptions to this protection is when the Commission has accepted in writing a “remedial settlement agreement” (see §6(b)(5)(B)).
Here is the question: is the voluntary recall (or specifically the recall’s corrective action plan) a remedial settlement agreement? The regulations currently say that the recall agreement is not enforceable. The agency now proposes to make the recall agreement enforceable. Is the effect of that to make any information submitted under §15(b) subject to disclosure where it otherwise would not have been?
What is the Commission’s current position on this issue? Reading the NPR or listening to the debate does not provide any answers. But one thing is clear: with all this tweaking, some transparency is called for.