Consumer Products Safety Commission Proposes Changes to Information Disclosure

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The Consumer Products Safety Commission is seeking public comment on its proposal to change the disclosure of information about manufacturers of products.

The commission voted 2-1 in favor of putting the proposed rules out for public comment. The dissenting commissioner said her colleagues were acting beyond their statutory authority.

The commission directed its staff to update the rules under 16 CFR § 1101 with the goals, among others, of moderating the regulations in light of information technology advances, minimizing Freedom of Information Act backlogs, and removing “extra-statutory requirements.”

Section 6(b) of the Consumer Product Safety Act requires the commission to ensure that disclosure of information about manufacturers or private labels of products is accurate, fair in the circumstances and reasonably related to carrying out the purpose of the law.

During the meeting to authorize putting the proposed rule out for comment, Chairman Robert S. Adler said that any information requested under FOIA must be run through a vetting process, even if companies have not asked to be notified. The proposed rules would avoid having to notify companies again when information is being re-released, he said.Section 6(b) has required the commission to “to act as a product safety censor, as a product safety data nanny. People who believe in the marketplace of ideas would be offended,” Adler said.

Commissioner Marietta S. Robinson said one piece of misinformation out there is that the rule would alter the commission's obligation to notify companies before releasing information.“

Re-notification of substantially similar information is simply not required” under statute, Robinson said.

Another piece of misinformation, Robinson said, is that Section 15(b) reports would be publicly revealed even though a determination has not been made as to whether a product should be recalled. Section 15(b) reports require manufacturers, retailers, importers and distributors to report their conclusions a product does not comply with a safety rule, could create a substantial risk of injury to the public or present an unreasonable risk of serious injury or death.

Dissenting Commissioner Ann Marie Buerkle said that the proposed rules no longer ensure that firms can be candid with the commission without worrying about sensitive information being disclosed. One problem is that the commission would no longer guarantee that the requests of firms not to publish their comments will be honored, she said.

“While overarching goal of the CPSC is to protect the consumer from unreasonable harm it must not be ignored that Congress' inclusion of 6(b) directs this commission … to take reasonable steps to ensure that information is accurate and such disclosure is fair,” Buerkle said. “6(b) exists to provide balance between the public's access to information” with minimizing a product being unnecessarily maligned or disparaged.