CPSC: a road map for the trial attorney.

You wouldn't think of going to a national park without a guidebook. You'd want to know what spectacles await you, understand the park's rules, and find out how to get where you want to go. For trial lawyers, the Consumer Product Safety Commission (CPSC) can be a parkland of information, but you should know what paths to follow if your time is to be well spent. Consider this article your road map.

The CPSC was launched in 1973 as a health and safety agency.(1) An outgrowth of the Consumer Product Safety Act (CPSA), the agency has the authority to investigate product hazards, issue standards, and ban consumer products. Its authority preempted state requirements.(2)

Congress also gave the CPSC the power to recall defective or violative products and to inform the public about the relative safety of consumer products.(3) To date, the agency has worked with industry on 1,500 recalls of defective consumer products involving more than 220 million individual units and another 2,300 recalls involving 168 million individual units of products that violate standards or bans.

The CPSA contained unique hazard reporting requirements for industry. Manufacturers, distributors, and retailers must now inform the agency when the! obtain information indicating that their product (1) violates a standard or ban or a voluntary standard relied on by the agency, (2) contains a detect that could create a substantial risk of injury, or (3) creates an unreasonable risk of serious injury or death.(4)

Since 1980, CPSC's staff has been cut by nearly half. Three commissioners do the work formerly done by five while 500 staffers handle a workload once shared by 1,000. Yet the agency continues to address more than 21,000 consumer product-related deaths and 29 million injuries each year. In economic terms, consumer product property damage, product injuries, and deaths cost nearly $200 billion each year.(5)

Data Sources

Agency staffers rely on an extensive consumer product information network to assist them in writing rules and conducting recalls. These resources can be invaluable to trial lawyers once they have a basic understanding of how the network operates.

NEISS. NEISS (pronounced "nice") is the acronym for the National Electronic Injury Surveillance System. NEISS data is supplied by emergency room personnel at the time of treatment. Each year, about 100 representative hospital emergency rooms supply information on about 330,000 consumer product-related injuries and deaths. This information is used by the CPSC's epidemiologists to identify product-related trends.(6)

Because the information supplied to NEISS is input by emergency room personnel, this system rarely has detailed information about the hazard scenario or the specific make and model of the product involved. However, the reports provide valuable insight into the relationship between particular kinds of products and injuries.

MECAP. The CPSC reviews and processes about 2,400 medical examiner and coroner reports each year through a program known as the Medical Examiner and Coroner Alert Project or MECAP. While these reports usually provide detailed information about the cause of death, they do not always contain detailed product identification information.

Consumer complaint system. In 1995, the CPSC received calls from about 400,000 consumers on its toll-free hotline. About 4,000 callers reported product problems, injuries, or deaths.(7) This information, along with letters, news clippings, and other anecdotal information, is stored in a consumer complaint database and examined for trends or evidence of a product defect. Often, these data provide good descriptions of how the injury occurred and detailed product identification information.

The CPSC's information clearinghouse sends reports of complaints to consumers for verification. If they do not verify the complaints, the agency will not release them. The staff routinely sends copies of the complaints to manufacturers and advises them of their reporting obligations under [sections] 15 of the CPSA.

In-depth investigations. The agency's field staffers investigate consumer complaints, NEISS incidents, and selected deaths. Investigations may be conducted to obtain more detailed information about a class of products the CPSC regulates, or to search for product defects. Investigators often visit the site of an incident, take pictures, interview witnesses, and collect police and other relevant reports. Whenever possible, the product is also collected. In-depth investigation reports-also called IDIs-usually provide the most detailed information on individual product incidents. The staff routinely supplies IDIs to manufacturers.

Other commission files. The CPSC Hazard Reduction staff assembles incident information and often conducts special studies to evaluate the need for voluntary or mandatory standards. These studies may range from epidemiological analysis of incident scenarios to exposure studies aimed at learning more about the use of a particular product. Experts in the fields of engineering, human factors, physiology, toxicology, and economics prepare memoranda outlining their analyses and recommendations.

These data and studies may be summarized in a Federal Register notice about a rulemaking, and the studies themselves become part of the rulemaking record. Even if the commission does not pursue rulemaking, studies are generally available to the public and are sometimes published in professional journals.

When conducting investigations of potentially defective products, the Division of Corrective Actions staff collects usage and injury data and coordinates technical analysis of a product. A division file may contain all incidents in the CPSC's databases plus those reported to the manufacturer, retailer, or distributor. The file may also contain technical analyses from the company's engineers and experts, as well as those from all relevant experts at the agency. Information about design and manufacturing changes and other corrective action is usually available.

Information disclosure. Two sets of requirements affect information disclosure by the CPSC: the Freedom of Information Act (FOIA) and [sections] 6 of the CPSA.

FOIA requires agencies to promptly provide information to anyone who requests it.(8) Agencies are required to promulgate regulations governing the timing, procedures, and fees for production.(9) The act allows agencies to withhold information "related solely to the internal personnel rules and practices of an agency," trade secrets and commercial or financial information that is privileged or confidential, certain kinds of interagency or intra-agency memoranda (including attorney-client and work product documents), and investigatory records.(10)

The CPSC promulgated procedural rules for handling FOIAs in 1977. If you want access to records, you must make your request in writing to the Office of the Secretary of the Commission (4330 East West Hwy., Bethesda, MD 20814). Requests must be "reasonably specific."

Although this standard gives a great deal of leeway to the requester, you may be asked to pay for search costs, so it is usually a good idea to work with FOIA staff to focus your request.

The staff must respond to the requester within 10 working days of a FOIA request. As a practical matter, up to 30 percent of the responses will be delayed several months depending on the type and volume of information requested. These delays are discussed below.

Requesters may appeal the denial of any requests to the agency's general counsel within 30 days. The general counsel's decision represents final agency action. Requesters may challenge it in U.S. district court.

Section 6(a) of the CPSA requires the agency to withhold "information [that] contains or relates to a trade secret" or other confidential commercial materials.(11) The section is generally consistent with the trade secret exemption in FOIA regarding the kind of information that may be withheld. However, [sections] 6(a) adds procedural steps not present in FOIA to prevent the agency from releasing the material.

The section requires the CPSC to give manufacturers or private labelers(12) of a product an opportunity to review information before it is disclosed. The review allows the manufacturer or private labeler to designate information it believes should be withheld.

If the agency agrees, the information will be withheld.(13) If the agency disagrees, it must notify the manufacturer or private labeler 10 working days before releasing the information to allow the firm time to challenge the release in U.S. district court. Obviously, this procedure can delay processing of FOIA requests beyond the cited 10-day response period.

Section 6(b) requires the agency to give a manufacturer or private labeler a summary of information the agency plans to disclose to the public if the information "will permit the public to ascertain readily the identity of such manufacturer or private labeler."(14) In most cases, the CPSC will give this notice to the manufacturer or private labeler 30 days before the release of information and allow it 20 days to comment. However, the agency may select a shorter time frame for release when public health and safety requires it.(15)

Section 6(b) also requires that the CPSC "shall take reasonable steps to assure ... [the information] is accurate, and that such disclosure is fair in the circumstances and reasonably related to effectuating the purpose of this Act."(16) The agency must provide a manufacturer or private labeler's comments along with the disclosure if the manufacturer or private labeler requests this.

If the CPSC disagrees with a manufacturer's or private labeler's claim regarding the accuracy of the information to be released, the agency must allow the manufacturer or private labeler 10 days to challenge release in U.S. district court.

Section 6(b)(4) allows the agency to forgo the notice provisions in certain situations (for example, if the agency has filed an action under [sections] 12--an imminent hazard proceeding--or has reason to believe the product violates a CPSC standard or banning requirement). Similarly, the agency may disclose information pertaining to a rulemaking or an adjudicatory proceeding or other administrative proceeding under the CPSA.

Congress amended [sections] 6(b) in 1981. Section 6(b)(5) prohibits the release of information submitted to the CPSC by manufacturers, distributors, or retailers under [sections] 15(b)'s hazard reporting provisions.(17) However, there are significant exceptions. The agency may disclose information if it has issued an administrative complaint under [sections] 15, it has accepted a remedial settlement agreement in writing dealing with the product hazard, or the person who submitted the information consents to its disclosure.

The agency may also disclose information about a product subject to an imminent hazard proceeding or one the CPSC reasonably believes violates [sections] 19, which covers products that violate a ban, rule, reporting obligation, or order. Also, information in the course of, or concerning, a judicial proceeding is exempt from [sections] 6(b).

In its early days, the agency took the position that a response to a FOIA request was not subject to [sections] 6(b) of the CPSA because a FOIA response was not an affirmative disclosure. The Supreme Court rejected this argument in Consumer Product Safety Commission v. GTE Sylvania, Inc.(18) It held that the notice, accuracy, and fairness provisions of [sections] 6(b) applied to FOIA responses as well as to affirmative CPSC disclosures. Since GTE Sylvania, agency procedures have required notice to manufacturers and private labelers when a FOIA response would identify a manufacturer or private labeler's product.

Obviously, this notice process--and any appeals or disagreements with the manufacturer or private labeler--can lengthen the time it takes the agency to respond to a FOIA request. The 6(b) notice process ordinarily takes 30 to 60 days. In about 25 percent of cases, the agency receives comments on accuracy or fairness requiring further analysis and delay. In most of these, the CPSC actually withholds very little data.(19)

Practice Tips

Here are some practical ways to get information from the agency more quickly.

1. Go for the publicly available information first. CPSC standards and bans are published in Title 16 of the Code of Federal Regulations. Advance notices of proposed rulemaking and notices of proposed rulemaking are published in the Federal Register and are available in the CPSC's public reading room.

All press releases are available on request and are accessible on the Internet using the agency's "gopher" service. The agency's Internet address is: cpsc.gov. You may even subscribe and receive press releases when they are issued by sending your request to [e-mail] and entering "sub CPSCINFO-L YourFirstName Your LastName." Similar information is also available from the agency's "fax-on-demand" service at [phone].

Each year, the agency summarizes corrective action plans in its annual reports. These documents are available in the agency's public reading room or by writing to the Office of the Secretary at the East West Highway address listed above.

2. Generally, your FOIA request should be as specific as possible regarding the type of consumer product you are researching. Identify yourself, state why you need the information, and explain how much you are willing to pay. When possible, talk with a FOIA specialist, who can help you hone your information request.

3. If your client was interviewed by the staff as part of a CPSC investigation, you may obtain that investigation report without 6(b) notice to the manufacturer. When requesting information, make clear that is what you want.

4. Asking for product information by product name necessitates 6(b) clearance through the manufacturer. As noted above, this may delay the FOIA response. If you need data at an early stage in your investigation to determine if your client's incident is unique, requesting generic information may be your best bet. For example, you could request all complaints, incident investigations, recalls, and staff studies about widget cord fires that occurred since 1990.

The agency's injury information clearinghouse can quickly provide purged data (information that does not contain the name of the product manufacturer or victim). This approach can still be used even if you need specific product names and models.

For example, let's say you want to obtain specific information on manufacturer X's widgets. One quick way to get it is by requesting nonspecific information on widgets. If the CPSC does not give you a response, you can conclude that the agency has no information about widgets of any kind, including manufacturer X's.

5. If you are already in litigation, discovery may provide a means of obtaining information directly from a manufacturer that the CPSC can give you only after a lengthy clearance process. As noted above, 915(b) reports may not be available from the agency. However, you can obtain the information in discovery, and discovery can be used to obtain other CPSC documents as well.

Remember, when you ask the agency for incident and document information about a product, the staff will send the information to the manufacturer or private labeler for 6(b) clearance. The FOIA office will notify you when the requested information is sent to the manufacturer for comment.

Also remember that if you make a request and the agency sends the information to the manufacturer, it may be discoverable directly from the manufacturer even as the manufacturer objects to the agency releasing the data.

6. If you are already in litigation and time is of the essence, you could also subpoena the information from the CPSC. The agency will submit the requested information to the court along with a letter explaining the agency's requirements and a request that the information be kept under seal pending the outcome of the agency's notification process.

The agency simultaneously sends the requested materials to the manufacturer, initiating the 30-day notice. Frequently, this procedure results in the court providing the information to the requesting party.

The CPSC can and does resist subpoenas for testimony of its employees to prevent interference with their daily functions.(20) However, the agency will certify accident investigation reports and other CPSC documents as official government records.

The agency's FOIA staff is overworked. Your willingness to work with the staff to define your requests will directly affect your success in obtaining information. FOIA staff can be contacted at the Bethesda, Maryland, address listed above or by telephone at [phone].

If you know what paths to take and then follow them, the CPSC can be an important source of information.

Notes

(1) Consumer Product Safety Act, Pub. L. No. 92 573, 86 Stat. 1207 (1972) (codified as amended at 15 U.S.C. [subsections] 2051-2084 (1982)), created the Consumer Product Safety Commission and enumerated its powers. (2) CPSA [sections] 26; U.S.C. [sections] 2075. (3) The CPSC may proceed by administrative hearing against products that create a substantial product hazard or in federal court against imminent and unreasonable risks of injury. CPSA [subsections] 12, 15; 15 U.S.C. [subsections] 2061, 2064. (4) The original CPSA required reports of violations of standards and bans and defective products. The voluntary standard and unreasonable risk reporting requirement were added with passage of the Consumer Product Safety Improvement Act of 1990, Pub. L. 101-608, 104 Stat. 3110 (1990) (codified as amended at 15 U.S.C. [sections] 2604 (b) (Supp. 1996)). (5) Figures from Testimony of Chairman Ann Brown before the Subcomm. on Commerce, Trade & Hazardous Materials, Mar. 29, 1996. (6) Id. (7) Id. (8) Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as amended at 5 U.S.C.A. [sections] 552 ( 1982)). (9) Id. [sections] 552 (a). (10) Id. [sections] 522 (b) (11) 15 U.S.C. [sections] 2055 (a). (12) Under the CPSA a manufacturer is anyone who manufactures, produces, assembles, or imports a consumer product. CPSA [sections] 3(a)(4), (8); 15 U.S.C. [subsections] 2052(a)(4), (8). A private labeler is someone other than the manufacturer who owns a brand or trademark on the product label. CPSA [sections] 3(a)(7); 15 U.S.C. [sections] 2052(a)(7). (13) This information is withholdable under 5 U.S.C. [sections] 552(b)(4) as well as under the express language of CPSA [sections] 6(a). (14) 15 U.S.C. [sections] 2055(b)(1). The CPSC's rules interpreting 56(b) are published at 16 C.F.R pt. 1101 (1996). (15) 16 C.F.R 1101.22-.23. (16) 15 U.S.C. [sections] 2055 (b)(1). 16 C.F.R. 1101.31-34 sets forth steps the CPSC will take to ensure the accuracy and fairness of the information it releases. (17) 15 U.S.C. 92055(b)(5); see CPSA [subsections] 6(e), 37(d); 15 U.S.C. [subsections] 2055(e), 2084(d). (18) 447 U.S. 102 (1980). (19) For a thorough analysis of how [sections] 6(b) works in practice and a critique of its usefulness, see Frances E. Zollers & David Barry, A Regulation in Search of a Rationale: An Empirical Study of the Consumer Product Safety Act Section 6 (6) and Its Effect on Information Disclosure under the Freedom of Information Act, 43 ADMIN. L. REV. 455 (1991). (20) The CPSC's regulations for subpoenas of employee testimony are at 16 C.F.R. 1016. The general counsel must be contacted in these cases.

Eric L. Stone is acting director of the Consumer Product Safety Commission's Division of Administrative Litigation. The views expressed are his own.