On February 8, 2023, a majority of commissioners of the Consumer Product Safety Commission (CPSC or Commission) voted to issue a supplemental notice of proposed rulemaking (SNPR) on the CPSC’s procedures for disclosing information to the public under Section 6(b) of the Consumer Product Safety Act (CPSA). The notice follows the publication of a briefing package on January 11, 2023, that indicated the Commission was preparing to vote on a proposed rulemaking in regard to Section 6(b). This is the second time the Commission has sought to revise 16 CFR § 1110, the rule interpreting Section 6(b) (6(b) Rule), since the rule’s promulgation in 1983. In 2014, the CPSC issued its first notice of proposed rulemaking regarding the 6(b) Rule, which was staunchly criticized by industry for proposing to erode important confidentiality and fairness safeguards critical to encouraging businesses to report potential safety issues to CPSC. The 6(b) Rule has remained unchanged since then.
Section 6(b) governs how the CPSC informs the public about product recalls. Under the 6(b) Rule, the CPSC must give manufacturers or private labelers advance notice and opportunity to comment on information the Commission proposes to release if the public can readily ascertain the identity of the firm from the information. The rule specifies that the CPSC must take certain steps “to assure, prior to public disclosure of product-specific information, that the information is accurate; disclosure of the information is fair in the circumstances; and that disclosure of the information is reasonably related to effectuating the purposes of the statutes the Commission administers.” For example, the process gives companies 15 days to comment on a potential recall before the CPSC releases any recall information to the public.
Arguing for 6(b)’s repeal, Chair Alexander Hoehn-Saric said in a statement, “Section 6(b) often prevents the CPSC from issuing timely warnings about dangerous consumer products when the Commission must negotiate with the manufacturer to make any relevant information public.” But businesses point out that the 6(b) Rule ensures that CPSC gathers relevant information from all sides before going public with information that could have serious repercussions for companies. Commissioner Peter Feldman, while voting yes, registered some reservations about the proposed rulemaking, stating, “Our public information sharing must provide consumers with timely, actionable information about safety. At the same time, our process must ensure accuracy and fairness. I hope that the final rule will strike the appropriate balance between these two objectives.” Specifically, Commissioner Feldman urged the public to comment on the third-party content evaluation and selective release of information that the SNPR proposes the CPSC engage in. The lone vote against Commissioner Richard Trumka, stated he was voting no because he felt that the SNPR did not go far enough in removing all restraints to public disclosure.
The proposal includes many changes to the current interpretation of 6(b) that are of importance to all consumer product companies. It is worth noting that Section 6(b)(5) provides an exemption to limits in public disclosure where the CPSC has issued imminent hazard findings under Section 12 of CSPA, as amended by the Consumer Product Safety Improvement Act (CPSIA), so Section 6(b) does not serve as a “gag rule” that prevents the agency from notifying the public about imminent hazards. Additionally, Congress adopted the confidentiality protection of 6(b) to encourage companies to report on potential issues under the provisions of Section 15b of the statute. Without scrutinizing and modifying Rule 15b reporting requirements, significant changes to the 6(b) Rule will disturb the careful balance Congress crafted between giving the public access to important product safety information and safeguarding important confidential business information.
The comment period is 45 days from publication of the SNPR in the Federal Register (which has not yet occurred as of the date of this writing). Businesses that manufacture, import, or sell consumer products should consider sharing their views on this important proceeding.