PhotoThe U.S. Consumer Product Safety Commission's (CPSC) public complaints database is facing its first major legal challenge -- and the fight is being carried out behind closed doors.

The non-profit, tax-exempt groups that look the other way when private publishers face similar legal challenges are rushing to the defense of the government-published site, which attracts a minuscule audience and receives only a relative handful of submissions.

A company -- whose identity is being protected by the court -- is objecting to a complaint filed at www.saferproducts.gov.  And the consumer groups that lobbied for creation of the database are not pleased.

Public Citizen, Consumer Federation of America and Consumers Union have asked a federal court to deny a company’s motion to seal all papers filed in its lawsuit against the CPSC. 

The consumer groups’ objection to the motion to seal explains that keeping the case hidden from the public would violate a right of public access to court records, recognized under both the First Amendment and common law.

In addition, the underlying case is of significant public interest because if the company is successful in keeping the consumer’s report from the public, the existence of the CPSC database and other federal agency databases used to provide consumers with information about potentially hazardous products could be jeopardized, the consumer groups said.

“A challenge to an important product safety law should not proceed in secret just because the company wants to avoid bad publicity about one of its products,” said Scott Michelman, the Public Citizen attorney representing the three organizations. “The public has a strong interest in the outcome of this lawsuit and a correspondingly strong right to learn who is involved, what arguments the company makes and the basis for the court’s decision.”

Dangerous products

SaferProducts.gov was launched with great fanfare at public expense in March to provide consumers with information about potentially dangerous products. Congress called for its creation in the Consumer Product Safety Improvement Act of 2008, which was passed in the wake of a spate of recalls of millions of children’s products.

It trailed by ten years or more the development of privately-financed consumer-driven review sites, including ConsumerAffairs.com, Ripoffreport.com and Yelp.com.  

About 3,300 reports have been filed in the database about kitchen appliances, nursery equipment, clothing, toys, electronics and more. The site has received about than 305,000 visits.  Yelp.com, by contrast, recorded about 17 million visits in the last 30 days.  ConsumerAffairs.com and Ripoffreport.com received several million each, according to publicly-available rating services, and have databases containing millions of submissions.

All of the major privately-operated consumer review sites have faced numerous legal challenges and have defended their operations -- and the public's right to speak publicly about matters of public interest -- at their own expense and with no help from any of the consumer organizations or the government.

Leaving the current controversy aside for a moment, there are those who suggest the government should not be in the publishing business.

"There is a vibrant and vigorous collection of privately-operated, tax-paying sites that publish consumer complaints, reviews and information without spending taxpayers' money," said Zac Carman, CEO of ConsumerAffairs.com.

"The framers of the Constitution did not intend for the federal government to be in the publishing business and the CPSC's clumsy attempt to mount a product already provided by private-sector companies not only wastes taxpayers' money but -- as we now see -- provides an additional opportunity for companies to attempt to stifle free expression.

"Private sites have vigorously and successfully defended their right to publish information of public importance.  The government's entry into the publishing arena muddies the water and accomplishes little," Carman said.  "The federal government should go back to doing what it does best ... whatever that is."

Identity withheld

On Oct. 17, the company, whose identity is not publicly known, filed its suit in the U.S. District Court for the District of Maryland. In an unusual move, the company asked the court to seal all proceedings in the case – which would mean that the company’s name, the facts of the case and the legal arguments would not be made public.

The case remains under seal while the court considers the motion to seal. The consumer complaint at issue in the case has not yet been put in the database.

The CPSC database is modeled after databases on the websites of the National Highway Traffic Safety Administration, created in 1996 to provide access to consumer complaints about automobiles, and the Food and Drug Administration, also available since 1996 to provide information about adverse events related to drugs and medical devices.

The CPSC is required by law to post consumer complaints within 20 business days of receiving them. Before complaints are posted, the product manufacturers are notified and given a chance to respond. If the information submitted is shown to be untrue, the complaint is corrected or removed from the database.

“This database was created because people were in the dark about potentially lethal product hazards that manufacturers and sometimes the government were aware of,” said Rachel Weintraub, director of product safety and senior counsel for Consumer Federation of America. “Consumers were unwittingly using and allowing their children to play with these dangerous products. We should not turn the clock back on this important consumer protection.”

Added Ami Gadhia, senior policy counsel for Consumers Union, “This database is a critical tool for consumers to read and report safety complaints about the products we buy. We’re opposed to any effort that could jeopardize this database and lead to unsafe products being kept secret from the public.”

Because the entire case is under seal pending the judge’s decision on the motion, the groups’ objection was required to be filed under seal. Therefore, although the objection is based on publicly available information and research, the groups cannot share it publicly at this time.


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