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September 3, 2009
The CPSIA Database: Five Steps for Implementation in the Public Interest
By Nancy A. Cowles
One of the provisions of the Consumer Product Safety Act of 2008 (CPSIA) likely to have a positive long term impact on consumer safety is the public database created by and required by this important new law. Consumers look for information about consumer products they seek to purchase all the time. Before making a purchase of a new stroller, parents look to see if others have reported problems. After a family member sustains an injury, they look to see if others reported anything similar -- was it something in the product or just a freak accident? Unfortunately today, consumers wouldn't get many answers. Due to provisions in the Consumer Product Safety Act, CPSC will almost always withhold that type of information from them if they call. Lawsuit records and settlements are often sealed and manufacturers are known for telling customers they are the first to complain of a problem -- even if they have a file full of similar complaints.
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To read more stories, see the archives | As the recalls and injuries in 2007 led Congress to discuss product safety in-depth, consumer advocates often pointed to the chilling effect of Section 6(b) of the Consumer Product Safety Act. This provision, unprecedented among safety agencies, requires CPSC to get prior approval from manufacturers before they release any information about their products to the public. While technically CPSC can overrule the company's veto of the release of data, in reality, the threat of a lawsuit against the cash-strapped and understaffed agency has always been enough to stop CPSC from releasing information. That, coupled with CPSC's need to cajole companies into recalls, leads to long delays between when CPSC knows a product may be deadly and when they alert consumers to that danger, if ever. Consumers operate under a veil of ignorance- missing vital safety information that manufacturers and CPSC may have. The public database will serve to lift that veil and allow consumers to make informed decisions -- with access to adequate information on safety.
In her November 6, 2007 testimony before Congress, Consumer Federation of America's Director of Product Safety and Senior Counsel Rachel Weintraub gave dramatic details of one such safety cover-up.
. . . even more troubling, is the CPSC's knowledge of numerous, serious and well documented harms caused by Stand 'n Seal, a spray-on waterproofing sealant for tile grout. According to an October 8, 2007 article in the New York Times, after a new ingredient was added to Stand 'n Seal in the spring of 2005, "calls from customers, emergency rooms and doctors started to pour into poison control centers and, initially in smaller numbers, to the Consumer Product Safety Commission's own hot line1 One child, stopping to talk to his father who was using the sealer, suffered damage to 80 percent of the surface area of his lungs.2 With complaints mounting, the manufacturer's chief executive told staff answering the companies' consumer hotline not to tell customers that others had reported similar complaints because doing so "may cause unnecessary public concern."3 "Nearly three months passed between the time [the manufacturer] first received a report of an illness and the official recall by the Consumer Product Safety Commission, a period during which dozens were sickened."4 The CPSC officially recalled the product on August 31, 2005. In the press release, CPSC acknowledged, "88 reports from consumers who have had adverse reactions after using the aerosol product, including 28 confirmed reports of overexposure resulting in respiratory symptoms for which medical attention was sought for coughing, irritation, difficulty breathing, dizziness and disorientation. Thirteen individuals required medical treatment, including overnight hospitalization."5 The Commission did not disclose critical safety information to the public and used 6(b) as a shield to maintain the secrecy of these severe health effects.
Consumers operate in the dark: missing vital safety information that manufacturers and CPSC may have. The public database will enable consumers to make informed decisions -- with adequate information on safety.
But even with the push for comprehensive legislation, this secrecy clause was not removed from the Act. During the drafting and debate over the CPSIA last year, when it became clear that industry would block any attempt to remove the gag order that is section 6(b) in the Consumer Product Safety Act, suggestions to include instead a consumer database -- collecting in one place all the hazard and safety reports that come in from anything other than a report from a manufacturer or private labeler -- began to take shape. This public database would provide government, consumers, advocates, business and the media with information on product hazards.
The CPSIA is very clear about what will be required. First, the database must be publicly available, searchable, and accessible through the CPSC website. This requires CPSC to develop a user friendly format that will encourage submissions and inquiries rather than stymie attempts to share information.
The database will include reports of injury or product defects from consumers: local, state, or federal government agencies; health care professionals; child service providers; and public safety entities as well as reports under Section 15(c) of the CPSA and comments received from manufacturers or private labelers in response to the reports. Section 15(c) includes actions CPSC takes based on product hazards reported to them by companies.
As to what information should be collected, again the law is clear: details of the incident, details of the product and contact information for the reporter, including a verification of the information and anything else CPSC deems in the public interest. The database should be searchable by date of report, the name of the product as well as model and other names given by the manufacturer and anything else CPSC deems in the public interest.
Below are suggestions for content and features that are in the "public interest" and which should provide assistance to CPSC as the agency develops the database:
- CPSC should make the entry form or phone script for callers clear and easy to follow. Every effort should be made to encourage as many details as possible in the report.
- But lack of any specific information -- say a model number -- shouldn't stop the process. The manufacturer name might be different from the name on the product -- with many licensing agreements, especially in children' products, consumers will have to be detectives in some cases to find the correct manufacturer name, along with the brand name it is sold under. The form and/or phone script should give detailed instructions on possible places to look for this sometimes hidden information.
- Once detailed information is collected, CPSC has five business days to report to the manufacturer to give them the ability to refute or correct information in the report. This should not be dragged out as it often is in the 6(b) process currently for FOIA requests. The law requires CPSC to post the information within 10 days of reporting it to the manufacturer, it is imperative they meet that timeline for the database to be effective.
- After entry, the information must be organized in such a way that consumers and others can find answers easily. Parents shopping for a stroller will need to search by product type to compare all stroller reports. Consumers considering a used gas grill on Craigslist should be able to search by model number or name. And a broader study of burn injuries in children will require a search by injury type. These are just a few examples of the many ways the database will be used. CPSC must build in functionality to allow these and other uses.
- CPSC should also link other relevant information. If the product in question has already been recalled, CPSC should note that and link to the recall notice. If it is recalled as a result of the complaint or at a later date, that information should also be added. Consumers shouldn't have to look in two places -- one for reported hazards and one for recall information.
CPSC has already missed the deadline for getting an implementation plan to Congress within 180 days of the bill's passage (that would have been back in February 2009). At first, funding was cited as the reason for the delay -- although the plan certainly didn't require the full funding for the database. Now that funding has been released, the reason for the delay is unclear and we understand that the Commission is prioritizing this and working on it expeditiously.
Public access to information is vital to safety. Simply allowing consumers access to the safety record of products will increase safety and encourage the speedy removal or redesign of unsafe products.
Nancy A. Cowles is executive director of Kids In Danger (KID), a nonprofit organization dedicated to protecting children by improving children’s product safety. KID’s mission is to promote the development of safer children’s products, advocate for children and educate the public, especially parents and caregivers, about dangerous children’s products. Contact her at (312) 595-0649, nancy@kidsindanger.org.
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