This week, the Consumer Product Safety Commission (CPSC) issued a proposal to amend regulation 16 C.F.R. Part 1101, which controls the agency’s implementation of Section 6(b) of the Consumer Product Safety Act, 15 U.S.C. § 2055(b). The proposed revisions, if approved, would limit the safeguards presently protecting manufacturers and label makers (collectively, manufacturers) from CPSC disclosures regarding their products.
Section 6(b) regulates the manner by which the CPSC makes disclosures regarding consumer products when those disclosures contain sufficient information to identify the product’s manufacturer. In May of last year, the CPSC staff was tasked with revising 16 C.F.R. Part 1101 so that it better reflected recent technological advancements and more closely conformed with Section 6(b).
First, the proposal would limit the applicability of Section 6(b)’s notice and comment requirements. The rule currently affords manufacturers the benefit of prior notice of and an opportunity to comment on a planned disclosure by the CPSC regarding that manufacturer’s product. The revision would allow the CPSC to disclose information obtained from publicly available sources, individual reports made on the CPSC’s database, and information previously disclosed by the CPSC to the public without providing notice or comment opportunities to the relevant manufacturer.
This change is noteworthy because it would render manufacturers unable to check the accuracy of the information found through these sources, which may be outdated or simply wrong.
Second, the present regulation allows manufacturers to decide whether their comments can be disclosed by the CPSC. Under the proposed revision, rather than simply indicating that certain information should remain confidential, manufacturers would be required to “provide a rationale, such as an applicable statutory or regulatory basis or provision, for why the comments should not be disclosed, and explain why disclosure of the comments is not necessary to assure that the disclosure of the information that is subject to the comments is fair in the circumstances.” This change may result in less cooperation between the CPSC and manufacturers fearing the risk of disclosure. It also needlessly complicates a commentary process that was working well.
Third, the revision changes the CPSC’s authority to disclose documents provided by manufacturers, which had been designated attorney work product or subject to the attorney client privilege. While the current version of the regulation prohibits the CPSC from disclosing such material, the revision empowers the agency to make such disclosures. This change will likely further chill communication between manufacturers and the CPSC.
The deadline for comments to this proposal is April 28, 2014. Vigorous opposition from industry is expected.