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Controversial CPSC Proposal Would Ease Restrictions on Information Disclosure

Wednesday, February 26, 2014
Sandler, Travis & Rosenberg Trade Report

The Consumer Product Safety Commission is accepting public comments through April 28 on a proposed rule that would ease restrictions on its ability to make information about a product public without first notifying the item’s manufacturer. A article says this proposal is controversial because businesses worry that it “would allow plaintiffs’ attorneys to seek the information under the Freedom of Information Act without their knowledge and then blindside them with injury suits.”

Under section 6(b) of the Consumer Product Safety Act, the CPSC is required to notify manufacturers or private labelers when disclosing information about a consumer product that will permit the public to readily ascertain their identity. This law also requires the CPSC to take reasonable steps to assure that the information to be disclosed is accurate and that its disclosure is fair and reasonably related to effectuating the purposes of the CPSA.

The Consumer Product Safety Improvement Act of 2008 made several amendments to section 6. The time period for manufacturers and private labelers to receive advance notice of, and have an opportunity to comment on, any disclosure to the public of product-specific information was shortened from 30 days to 15; the requirement that the CPSC publish a Federal Register notice when it makes a finding that public health and safety necessitates public disclosure within a lesser period of notice was eliminated; and the statutory exceptions to the notification requirement were broadened.

The CPSC is now proposing to modify its regulations to reflect these amendments. Specific changes would include the following.

- clarifying that the notification requirement does not apply to a report of harm posted on the publicly available consumer product safety information database or to information that is publicly available or has been disseminated in a manner intended to reach the public in general (e.g., news reports, articles in academic and scientific journals, press releases)

- excluding from the notification requirement information that is substantially the same as information the CPSC previously disclosed and stating that if the Commission intends to disclose such information it is not obligated to take any additional steps to assure accuracy unless it has reason to question the accuracy of the information

- indicating that the CPSC intends to err in favor of providing notice to manufacturers and private labelers if there is a question as to whether the public could readily ascertain their identity through the information to be disclosed

- directing the use of electronic means to provide notification whenever possible and encouraging the use of electronic communication with the CPSC

- requiring firms objecting to the disclosure of their comments to provide a rationale to support that request and an explanation of why disclosure of the comments is not necessary to assure that the disclosure of the information that is the subject of the comments is fair

- removing a provision listing the work-product of attorneys employed by a firm and information subject to attorney/client privilege as an example of information that would not be disclosed because it generally would not be considered fair in the circumstances (the CPSC believes firms waive these privileges when they submit such information and notes that firms rarely claim that information proposed for disclosure contains information subject to the attorney/client privilege or the work-product doctrine)

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