INSIGHTS On Massachusetts Personal Injury Law

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Is the Consumer Product Safety Commission a National Data Nanny of Vital Consumer Product Information?

Section 6(b) of the Consumer Product Safety Act regulates the release of information by the Consumer Product Safety Commission. Much of the data collected and many of the investigations and actions taken by the Commission cannot be released to the public without notice to the manufacturer and an opportunity to comment and object. This requirement, a part of the original Act passed over 40 year ago, significantly delays and impedes the public access to the Commission’s product safety information. 6(b) requires the Commission not only to notify the manufacturer and allow comment and objection, but also requires that the Commission assure the accuracy and fairness of the information to be released before it is made public.

Recently, the Commission published notice proposing to change rules it had established following 6(b) for the release of information. The changes are an attempt to eliminate some of the more cumbersome procedures while still complying with 6(b) and represent, at best, only minor tweaks. In commenting on these proposed changes, CPSC Commissioner Bob Adler took the opportunity to describe the problems posed by the 6(b) restrictions on the flow of information:

• Section 6(b)’s cumbersome procedures and unnecessary delays put consumers’ lives and limbs at risk by requiring the CPSC to restrict the flow of critical safety information to the public.

• The Commission, unlike any of our sister agencies, must spend hundreds of thousands of dollars a year following wasteful 6(b) procedures – procedures that were visited exclusively on the CPSC 40 years ago and have never been imposed on any other agency since then.

• Section 6(b) has been interpreted by the U.S. Supreme Court to apply to FOIA requests for information in agency files. This means that information that no one would ever think carried the agency’s blessing or imprimatur still must be run through section 6(b) procedures – adding time and expense to the process.

• One particularly bad example: A document that simply lists the names of the 50 firms in an industry must be processed through section 6(b) by sending 50 different notices – each with the other 49 names redacted (especially since the firms likely already know all of the names on the list).

• The Commission cannot post information on its website that has been previously disclosed simply and solely because we have given firms the right to be notified again before it’s released again – especially when most companies don’t even bother to file comments when they’re re-notified.

• The average time to process section 6(b) requests is roughly four times as long as the time to process non-6(b) requests.

• Read literally, section 6(b) prevents CPSC staff from saying even favorable or nice things about manufacturers unless we follow the cumbersome procedures of the Act.

Commissioner Adler’s full comments are at http://goo.gl/qkb3oA

As can be seen from these examples, the 6(b) restrictions hamper the Commission from timely release of important consumer information. Thus, Commissioner Adler’s description of 6(b) as “…inappropriately put[ting] the agency in the role of a national data nanny of vital consumer product safety information….” is particularly apt. While 6(b) as part of the statute is likely to be the law for the foreseeable future, Commissioner Adler is to be lauded for increasing CPSC transparency as much as possible within the 6(b) strictures.