Last week a federal district appeals court issued a decision that is a victory for scientific integrity, transparency, and consumer protection.
The court refused to permit a company to be basically treated like a rape victim—to have its lawsuit against the Consumer Product Safety Commission (CPSC)—to be conducted entirely in secret. The company, called only “Company Doe” in its complaint, sued CPSC in October 2011 asking the court to block the agency from posting a complaint about one of its products on the agency’s public online consumer complaint database. The company said the report was inaccurate, but CPSC disagreed. This was the first legal challenge to the database.
This complaint was not trivial. It was a report that linked the death of an infant to a product made and sold by the company. Nevertheless, the court case went on in secret, and Company Doe won; the court ruled that the complaint could not be posted on the public database. Even the court’s decision was heavily redacted.
Public Citizen, along with Consumer Federation of America and Consumers Union, sued to open the court proceedings and identify Company Doe. On April 16, the public won. In a unanimous decision, the Fourth Circuit Court of Appeals held that “the district court’s sealing order violates the public’s right of access under the First Amendment.” The court found that the district court “abused its discretion” in permitting Company Doe to “litigate pseudonymously.” The appellate court ordered the district court to “unseal the case in its entirety.” The public, finally, will get to know the identity of Company Doe.
The decision not only protects American families from being harmed by defective products, it also advances scientific integrity at the agency.
A major victory
To understand why the decision is so important, you have to know the story of how the consumer complaint database became part of Congress’s groundbreaking effort to strengthen the CPSC in 2008.
The law that created CPSC has a provision that prevents the agency from warning the public about potential harms from a consumer product until it has gone through a delicate dance with the product maker. CPSC has to negotiate even its press release announcing the harm. Needless to say, these negotiations take time, putting thousands of consumers at risk. Compounding the problem a decade or so ago was an agency that for years had been vulnerable to political and corporate interference and denied the resources to do its job. There have been tragic stories of toddlers who have died or been seriously injured because the warnings and the recalls happened months after the product caused harm.
Congress could have simply taken these restrictions out of the law, but politically there was too much pushback from corporate America. So it opted for the next best thing: CPSC would create a public consumer complaint database. The online database was part of the sweeping Consumer Product Safety Improvement Act, which strengthened the agency, required higher standards for dangers to children, and gave the cash-starved agency more financial support.
The database would require specific information about the product—cribs, toys, lawnmowers, you name it. It would take complaints from consumers, first responders and health care providers. CPSC would give companies a heads up about these reports, and the opportunity to respond to them, and challenge their accuracy. And the database would state emphatically and clearly that this was a publicly accessible forum for listing consumer concerns, but not an official CPSC assessment of the product.
The concept of publicly posted consumer complaints is hardly revolutionary. Hotels, computers, hair stylists, restaurants, handymen—you name it, and likely you can find consumer reviews. Commerce has not stopped in its tracks because of these public forums.
But that didn’t stop companies from launching a massive lobbying effort to block or weaken the complaint database. They warned that trial lawyers would roam the database looking for potential litigants, that the agency would be swamped with tens of thousands of complaints, many of them bogus, and that consumers would not be smart enough to read the disclaimer that this was not CPSC’s official assessment.
Our Scientific Integrity program joined with consumer and public interest groups to support the CPSC reform law, and to protect the database. We had heard from former and current CPSC scientists who had told us that their efforts to warn the public through their studies of products, such as All-Terrain Vehicles, had often been blocked by senior officials at the agency. We knew that one way to help the science emerge was for the public to help the agency track emerging safety hazards. We knew that the delays that kept product dangers out of the public eye had caused deaths and serious harm, often to children.
Under the leadership of Inez Tenenbaum, who ran the agency from June 2009 until November 30, 2013, CPSC responded to the complaints, carefully and thoroughly, and created its database.
This thing is working
All the warnings about chaos did not materialize. In June 2011, Rep. Henry Waxman (D-CA) released an analysis of the database’s first three months of operation. The database received 1,624 reports of defective or harmful products, one-third of them about products that caused death or injury. Only 202—or less than 13 percent—of the reports were challenged by companies for accuracy. Of that number only 154 were deemed by the CPSC to be inaccurate. The agency either corrected information on the database or removed the posted complaint altogether. Currently, the database contains more than 18,000 reports.
And the database is providing information to the public. During its first quarter, it got 305,000 visits and visitors conducted 1.8 million product searches. It was helping the CPSC identify emerging hazards. It was offering companies the opportunity to respond to and correct complaints. In short, it was working.
But if Company Doe’s gambit had succeeded, it would have inspired many other companies to try the same thing. The time and resources CPSC would devote to fighting these lawsuits would be substantial. And if a company could keep its lawsuit secret, there was no downside to trying. Even if it lost, it could effectively delay news about product defects, for months, even years.
Company Doe may appeal the decision. But at least for now, it’s time to celebrate. Sometimes, the good guys do win.
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