Reproduced with permission from Product Safety & Liability Reporter, 42 PSLR 187, 02/24/2014. Copyright 姝2014
by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
PRODUCT SAFETY
CONSUMER PRODUCT SAFETY ACT
Proposed Changes to CPSA Section 6(b) Reduce Protections
Currently Available to Manufacturers and Private Labelers
BYERIN BOSMAN,ELLEN ADLER AND SARA BRADLEY
Section 6(b) of the CPSA establishes procedures for
and restrictions on the CPSC’s public disclosure of
information. It prohibits the CPSC from disclosing
information about a consumer product that identifies a
company unless the CPSC has taken ‘‘reasonable
steps’’ to ensure the information is accurate, disclosure
is fair under the circumstance, and disclosure of the in-
formation is ‘‘reasonably related to effectuating the pur-
poses of the CPSA’’ and other laws administered by the
CPSC.
Before voting on the notice of proposed rulemaking
(NPRM), the three CPSC Commissioners discussed the
proposed amendments with CPSC staff and each other,
as they did during a previous Jan. 24, 2014, open ses-
sion. Both meetings made clear that Chairman Adler
and Commissioner Robinson support amending 6(b),
while Commissioner Buerkle is strongly opposed.
To appease Commissioner Buerkle and show the CP-
SC’s commitment to check the accuracy and fairness of
information released under the proposed rule, Chair-
man Adler and Commissioner Robinson offered several
‘‘substitute’’ amendments to the six initial proposed
changes drafted since the Jan. 24 meeting. The substi-
tute amendments became part of the NPRM after the
vote; all of Commissioner Buerkle’s proposed amend-
ments were rejected, demonstrating the strict partisan
split within the Commission.
Expanding Republication
of Publicly Available Information
The most controversial amendment increases the
kind of information exempt from Section 6(b), meaning
that the CPSC does not need to comply with Section
6(b)’s requirements in order to publish the information.
The information that is proposed to lose Section 6(b)
protection includes (1) information published on the
CPSC’s consumer product safety database; (2) publicly
available information such as news reports, academic
and scientific journal articles, press releases and infor-
mation found on the Internet; and (3) information that
is substantially the same as information the CPSC pre-
viously disclosed in accordance with Section 6(b).
Commissioner Buerkle reiterated her concern that if
the CPSC is allowed to re-publish publicly available in-
formation like newspaper articles or blog posts, then
the CPSC may be viewed as endorsing that information,
even if it is not necessarily accurate or reliable. She ar-
Erin Bosman is a partner in Morrison & Foer-
ster’s San Diego office and serves as chair of
the firm’s Product Liability Practice Group.
Bosman can be reached at EBosman@
mofo.com.
Ellen Adler, an associate in Morrison & Foer-
ster’s San Diego office, can be reached at
EAdler@mofo.com. Sara Bradley is an associ-
ate in the Litigation Department in Morrison
& Foerster’s San Diego office, and is available
at SBradley@mofo.com.
COPYRIGHT 姝2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 0092-7732
Product Safety
& Liability Reporter™
