New Consumer Product Safety Commission Database Sharply Raises Regulatory Risks and Product Liability Exposure for a Surprisingly Broad Range of Products and Substances

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Many manufacturers and private label distributors who do not regularly monitor developments at the Consumer Product Safety Commission ("CPSC") may find themselves doing an abrupt about-face on March 11, 2011, when SaferProducts.gov, a publicly available, searchable database created by new regulations promulgated by the CPSC, begins operations.1 The database will contain safety information about all products under CPSC's jurisdiction, including many products that companies may not be aware fall under CPSC’s jurisdiction. For example, CPSC has jurisdiction to impose poison prevention packaging on foods (including dietary supplements), drugs and cosmetics under the Poison Prevention Packaging Act (and already does so for certain of these products).2 Likewise, the CPSC has jurisdiction over consumer products and children's products under the Consumer Product Safety Act3 and all kinds of fabrics and fabric products pursuant to the Flammable Fabrics Act.4 Hazardous substances, defined as any substances or mixtures that are toxic, corrosive, irritants, strong sensitizers, flammable or combustible, or that generate pressure through decomposition, heat or other means, and that may cause substantial personal injury or illness, are regulated by CPSC under the Hazardous Substances Act.5 Early indications are that CPSC intends to interpret its jurisdiction liberally in determining what products its database should capture. For example, in response to objections from a commenter during rulemaking about including reports for over-the-counter drugs and dietary supplements in the database, the CPSC responded, "We have no intention of including reports of harm solely involving products or substances not within our jurisdiction, but will include all products and substances that do fall within our jurisdiction, including complaints about drug product labeling."

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