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Tuesday, October 23, 2012

Ruling Raises Questions About List of Unsafe Consumer Products

Consumer groups said Tuesday that a federal court decision could threaten the effectiveness of saferproducts.gov, a relatively new federal database of unsafe products.

The ruling, by Judge Alexander Williams Jr. of United States District Court in Maryland, sided with a manufacturer who sued to keep its name out of the database, arguing that the complaint against it was confusing and contradictory and therefore should not be published.

The manufacturer, whose name and product remain anonymous, submitted medical data to the Consumer Products Safety Commission, which maintains the database, showing that the information in the database was “materially misleading.” The commission staff agreed, but the manufacturer argued that the corrected reports perpetuated the errors, and it filed a lawsuit.

Judge Williams, in a decision dated July 31 but made public on Monday, ruled that the safety commission's decision to publish the complaint was “arbitrary and cap ricious” and that it could influence a consumer's behavior, despite a disclaimer stating that the safety commission doesn't endorse the findings.

On Tuesday, several consumer groups filed an appeal of the judge's decision to keep some files sealed, as well as parts of the judge's ruling. They also contested the judge's decision to allow the manufacturer to proceed under the pseudonym “Company Doe.”

“The price that we pay for secrecy in cases like this is it can open the door to lots of litigants,” said Scott Michelman, an attorney for Public Citizen, one of the groups filing the appeal. “I do not expect this to be the last time that a company tries to keep a report of one of its products out of the database.”

In a prepared statement, the safety commission said, “The decision published yesterday concerning one incident reported to the saferproducts.gov consumer database does nothing to change the agency's statut ory mandate and enduring commitment to provide the public with a timely and searchable database of incidents involving consumer products. Consistent with the decision, the Commission did not post the individual report.”

Judge Williams dismissed allegations that the decision would set off a flood of lawsuits by companies trying to stay off the database. “The prospect of successful challenges to the database does not threaten to categorically compromise the Commission's consumer safety mission,” the judge wrote. “In sum, there is ample middle ground between the foundation this opinion lays and the apocalypse the Commission predicts.”

The database is the result of 2008 legislation that gave the safety commission more money and authority after numerous product recalls, including children's toys from China.

The database, which went online in March, allows consumers, and others, to file complaints of injury, or potential harm, for all types of products except for food, drugs, cosmetics, cars and guns. More than 11,000 reports have been filed to the database so far. Before incident reports are posted, manufacturers are given a chance to respond, and if they can show that the entire report or part of it is not accurate, the report is supposed to be redacted or not posted on the database.