July 12, 2011

The Consumer Product Safety Database: Why You Should Care

Reprinted with permission from the June/July 2011 edition of Bicycle Dealer Magazine

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By Steven W. Hansen

In August 2008 President Bush signed into the law the Consumer Product Safety “Improvement” Act (the so-called CPSIA). The law was a response to what the general media described as a “flurry” of recalls of children’s toys from China that contained “dangerous levels” of lead. So Congress wrote a law that very few in the recreational products industry were paying much attention to. Only after the bill was passed and the Consumer Product Safety Commission (CPSC) was handed the bill to implement did things start getting testy. By that time it was too late to “fix” the law without new Congressional action. The CPSC argued it could not do much about preventing the effect of the law and did very little to offset its harsh effects.

The bicycle and recreational products industry was especially hard hit as the law really should have only been for specific types of products that were likely to end up in a child’s mouth. But Congress ended up virtually banning all lead in all bicycles and motorcycles. So much so that it’s become virtually impossible to make a metal product that complies. Now we all know that children are not likely to put motorcycles or bicycles in their mouths…but they could.

Meanwhile, there were some rather unnoticed provisions in the 2008 law that had a rather long “implementation period”. It was the so-called consumer product safety database (the CPSC “database”). It was set to go into effect in December 2010 after the CPSC created a new web portal and database to handle the “requirements” of the Congressional mandate in the August 2008 law.

I and a number of others looked into the May 2010 proposed regulations (which became final in December 2010) that the CPSC drafted that it was proposing to implement the new law and we did not like what we saw. For one thing, the database was much broader in scope than the majority of the other parts of the act: it pertained to ALL consumer products (not just those intended for children) and encompassed any problem with the product, not just those involving lead or that were a violation of any CPSC laws or regulations.

The primary problem was that this was going to be an “open” database, meaning that consumers could post complaints or injuries (or “near” injuries) related to a product and they would be posted on the Internet for all to see and search. Now we have all lived with Google for a few years now and know that, quite frankly, you can find just about anything negative you want to find about a product. It seems that more than half of what we read on the web about products is complaints, not praise.

The CPSC database will only magnify this problem, not improve it. As you may well know already, typing a product name followed by “recall” usually brings up the CPSC website in the first 5-10 search results, on average. We know that the CPSC database will enjoy the same Google “preference”. The CPSC database will also be filled only with negative reports -- nothing positive. In addition, it will likely be given great respect and deemed trustworthy by parents and other consumers as it’s a government website. The information will appear to be “vetted” because it only provides information on “unsafe” products, not just those that consumers “don’t like”. But the real question is, should it be deemed trustworthy?

Another problem with the site is that, as the industry and its proponents like me argued, the data should be entered by consumers that actually own or have used the products and were harmed, not merely onlookers, or neighbors and other “interested persons”. Currently, virtually anyone can enter information. This, then, gives rise to another problem. That of “accuracy”. If the person inputting the data was not the user of the product and was not involved in the incident, its going to be very hard to get accurate information about the product, the accident and the specific causation issues that are relevant. Worse, other “interested persons” such as personal injury attorneys, may have a financial interest in reporting information that is not accurate.

One of the problems that is going to plague the bicycle industry is vagueness in the reports with respect to model years and which models and, more important, if the issue is with a component or a complete bike. Typically, if something goes “wrong” with a bike, its related to a component, not the bike brand or model name. This is yet another headache for manufacturers and distributors to be watchful for. This will lead to further consumer confusion with the database information and its accuracy.

In the “old” days, the CPSC would mail incident reports to manufacturers or product distributors who could then comment on the accuracy of the report. If the “reporting party” posts vague information and refuses to allow the CPSC to release his name or other information, there will be no way for the manufacturer to determine if the report is in fact accurate. And this all has to be done in nine calendar days from the time the manufacturer receives the report. Otherwise, it’s published as-is.

Suffice it to say that within a year, this database will likely be filled with very negative reports about many perfectly safe recreational products (when used as directed). But what will consumers and plaintiff’s attorneys do with the database? The argument has essentially been: “Its better to have inaccurate information out there than none at all." Nothing could be further from the truth.

So what should independent bicycle dealers do about the database? Although there is no legal reason to check the database, you should become familiar with it. It’s accessible to anyone at www.saferproducts.gov . More important, if you are the sole retail outlet for a particular product in the US and the manufacturer and / or distributor is outside the USA, then you really do need pay particular attention to the database and might even consider registering so that reports regarding the product come to you. It may also become very important to retailers if the distributor or manufacturer goes out of business.

Even if you are not the sole retailer, you should keep abreast of what consumers are saying about the products you sell and what their complaints are. It could tip you off to a potential recall of the product or a claim being made that involves your store. Again, provided that there are enough “accurate” reports that you can read from which to draw a reliable conclusion.

You also need to be prepared for consumers coming into your store with complaints about the product armed with similar complaints they found on-line in the database. They will argue that these “reports” legitimize their need for a return. Also, if you sense that problems are escalating via the database, make sure you alert the distributor and manufacturer of the issue as they may not be watching the site or even registered at the site.

The site might also be of interest to you in planning next year’s purchases, but you will need to take all of it with a grain of salt and use it primarily for comparison between different products. It’s important to keep in mind that any products listed are likely not recalled. They could be at some later time but, as I am aware, the complain database and the recall database are not tied together.

The database is still very much in its infancy. We have no idea how this site will be used by consumers or attorney or manufacturers or if it really will result in safer products. It’s too early to know. But five years from now there are likely going be millions of complaints in the database (which presumably will remain posted forever). And the headaches are only going to get worse for people like me who represent product manufacturers, distributors and retailers.

Steven W. Hansen served as Secretary to the ASTM Subcommittee on Bicycles and is an attorney who defends recreational product manufacturers, distributors and retailers in product liability lawsuits as well as various persons and entities participating in and promoting recreational sports. The information in this column is subject to change and may not be applicable in your state. It is intended as a thought-provoking discussion of general legal principles and does not constitute legal advice. Any opinions expressed herein are solely those of the author.

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