The US Consumer Product Safety Commission (CPSC) published a Final Rule (FR) on November 28, 2008 that amended the information disclosure requirements under the Consumer Product Safety Act (CPSA), as set forth at 16 CFR Part 1101. The FR, which was not subject to Notice and Comment Rulemaking, was promulgated under the authority of the Consumer Product Safety Improvement Act of 2008 (CPSIA). In part, the amendments reduce by half the amount of time during which product manufacturers or private labelers may comment on, or object to, the public disclosure by CPSC of information from which they can be readily identified. Further, the amendments exempt from the disclosure requirements information about a product that CPSC believes is in violation of any consumer product safety rule, or provision in any Act enforced by the Commission. The FR became effective on November 28, 2008. 

Under the FR, CPSC is required only to wait 15 days after providing notice and an opportunity to comment to product manufacturers or private labelers about the proposed release of information to the public in which they can be readily identified, before releasing such information. CPSC was previously required to wait at least 30 days from the date of notice before publicly disclosing such information. The FR also shortens from 20 to 10 days the amount of time manufacturers or private labelers have to submit comments to CPSC in response to a notice on a proposed information release. The FR further shortens from 10 to five days the amount of time CPSC must wait after notifying a company of its intention to disclose information over the company’s objection before publicly disclosing such information.

The FR exempts from the disclosure requirements information about a product that CPSC “has reasonable cause to believe” is in violation of any consumer product safety rule under the CPSA or any other similar rule or provision under the other Acts that CPSC administers. This exemption was limited previously to information in violation of the “prohibited acts” section of acts administered by the Commission. Under the FR, CPSC may also “publish a finding” that the public health and safety requires a shorter information disclosure timeframe than those noted above in order to warn the public quickly of a potential hazard. Moreover, the FR eliminates the requirements to publish such findings in the Federal Register. Instead, CPSC can publish a finding on its Web site to meet the publication requirement noted above. 

Finally, the FR exempts from the definition of the term “public” any “federal, state, local, or foreign government agency” in accordance with section 29(f) of the CPSA. Thus, information in which a product manufacturer or private labeler can be readily identified may now be disclosed to a broader range of federal, state and local agencies, as well as to foreign government agencies. 

Should you have any questions regarding the FR, please contact any of the individuals below. 

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

James R. Ravitz
ravitz.james@arentfox.com
202.857.8903

Scott A. Cohn
cohn.scott@arentfox.com
212.484.3984

Amy S. Colvin
colvin.amy@arentfox.com
202.857.6338

James H. Hartten
hartten.james@arenfox.com
202.857.8983