Testifying at a House hearing Thursday, Vice President Wayne Morris of the Association of Home Appliance Manufacturers (AHAM) did an able job reporting the concerns of manufacturers about a new product safety complaint database being launched by the Consumer Product Safety Improvement Act.

Morris was a witness at the House Energy and Commerce Subcommittee on Manufacturing and Trade’s hearing, “A Review of CPSIA and CPSC Resources.” (His prepared statement is here.) As AHAM’s news release summarizes:

AHAM’s testimony supports the creation of a public database and supports the funding necessary to properly execute this undertaking. However, it also AHAM’s viewpoint that the current design and operation of the web site decreases the quality and accuracy of information that will keep consumers safe, places unreasonable burdens on manufacturers, and does not require timely resolution of good faith material inaccuracy claims.

Manufacturers have proposed many ways to fix the database, Saferproducts.gov, as Morris made specific recommendations:

• Information should not be added to the public database while there is a pending claim of material inaccuracy.
• Eligible reporters to the database should be limited to those with first-hand information about the harm or with a relationship to the consumer – which, AHAM pointed out, was Congress’s intent.
• Registration of model or other descriptor information should be required where available. AHAM acknowledged that such information would be difficult to determine for some consumer products (such as rubber balls).

In her prepared statement, CPSC Commissioner Anne Northup called for Congress to enact two major changes to the way the commission does business, including modifications to improve the value of the product safety database. She testified that Congress, through the appropriations process, could immediately:

(1) prohibit the Commission from expending any funds for the purpose of undertaking any further regulatory action without first performing a full cost-benefit analysis and making a finding that the cost of the action is justified by its expected benefits; and
(2) prohibit the Commission from expending any funds for the purpose of launching the Public Database until the Commission’s regulations ensure that the information contained in a report of harm submitted to the Database is verifiable, and the Commission has established an effective procedure for resolving a claim of material inaccuracy before a report of harm is put on the Database.

Rep. Mike Pompeo (R-KS) has proposed an amendment that would halt funding for the database until the Congressional review were conducted.

UPDATE (12:05 p.m.): The NAM sent the following letter to the House Thursday supporting the Pompeo amendment.

Dear Representative:

On behalf of the National Association of Manufacturers (NAM), the nation’s largest industrial trade association representing small and large manufacturers in every industrial sector, I urge you to support amendment #545 to H.R. 1 offered by Representative Mike Pompeo (R-KS) to temporarily delay implementation of the Consumer Product Safety Commission’s (CPSC) database.

In 2008, Congress passed and the President signed the Consumer Product Safety Improvement Act (CPSIA), which, among other provisions, directed the CPSC to produce a product safety database that would provide consumers with a meaningful tool to research product safety information that is accurate and includes first-hand reports from consumers and public safety entities. Significant debate took place in Congress on the appropriate types of individuals who could file complaints in the database. The final CPSC rule, however, recognized that Congress provided an exhaustive list of filers but expanded the definitions of those filers including consumers and public safety entities beyond their clear public meaning and the intent of the drafters of the legislation. The rule redefined the terms “consumer” to include trial attorneys and “public safety entities” to include consumer advocacy organizations. As a result, the database could be filled with bogus reports inspired by motives other than safety.

Congress also struck an appropriate balance between the speed of publication of reports and the desire for accuracy as well as the protection of confidential business information. The final implementing regulation provides for no such balance and creates a default for immediate publication before any meritorious claims regarding trade secrets or material inaccuracy are resolved. The Commission was unwilling to direct staff to make determinations about such claims prior to posting the reports to the database. Once a trade secret is posted within a report, for example, no remedy is available to undo the damage. These claims as well as claims of inaccuracy, impossibility, or product misidentification must be resolved before the information is made public if the database is to provide helpful information to the public.

If the challenges with the database are not addressed, then the credibility of the database and its usefulness to consumers will have been severely damaged. For these reasons I urge your support of the amendment.

Sincerely,

Rosario Palmieri
Vice President, Infrastructure, Legal & Regulatory Policy
National Association of Manufacturers

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