Product Manufacturer Retains Anonymity While Challenging CPSC Report

In 1972, Congress created the Consumer Product Safety Commission. The CPSC was charged with drafting and enforcing guidelines to protect the public from unsafe products. Congress passed the Consumer Product Safety Improvements Act of 2008, in part, to require the CPSC to maintain an online database of reports of harm relating to the use of consumer products received from government agencies. A manufacturer may challenge a report regarding its product by establishing that the product contains a “material inaccuracy.”

Recently, an anonymous company succeeded in challenging the publication of such a report. The manufacturer submitted evidence to the agency that its product identified in a report was not the source of the consumer’s harm, asserting that the report contained a material inaccuracy. The CPSC attempted multiple revisions of the report but ultimately concluded that the revised report should be published, despite the statement still reflecting an association between the manufacturer’s product and the harm experienced by the consumer.

The product manufacturer filed an action in the United States District Court for the District of Maryland seeking to enjoin publication of the report. Judge Alexander Williams, Jr. ruled that the agency was only authorized to publish reports where the product was “connected or associated with” the harm described in the report and emphasized that the manufacturer had submitted evidence showing that there was no connection between the harm and its product. Given CPSC’s past decisions not to publish reports where the product was found not to be the source of the harm, the Court found that CPSC acted arbitrarily and capriciously and abused its discretion in seeking to publish this report.

The Court emphasized that the report contained a material inaccuracy. A material inaccuracy contains two elements: first, information in a report that is false or misleading and second, information which is so substantial and important as to affect a reasonable consumer’s decision-making about the product. See 16 CFR § 1102.26(a)(1). The Court noted that customers would likely infer causation even in reports that did not include a connection between the product and the harm. Therefore, the Court concluded that the manufacturer’s evidence combined with this probable reaction from consumers required the CPSC to refrain from publishing the report.

The Court also granted product manufacturer’s request to seal parts of the case identifying the manufacturer or product. The Court reasoned that the public’s knowledge of the report, despite its falsity, would cause irreparable harm to the company’s reputation and financial well-being. Unfortunately, much of the Court’s application of the law to the facts has been redacted, limiting the guidance this case can provide to other manufacturers. For more information, the Court’s opinion, although heavily redacted, can be found at Company Doe v. Tennenbaum, No. 8:11-cv-02958-AW, 2012 WL 5245523 (Oct. 9, 2012).