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Enforcement Edge
February 27, 2023

CPSC Wading Back into the 6(b) Fray

Enforcement Edge: Shining Light on Government Enforcement

The information-disclosure provisions of Section 6(b) of the Consumer Product Safety Act (CPSA), 15 U.S.C. § 2055(b), long have been one of the most divisive topics in the U.S. Consumer Product Safety Commission (CPSC or the Commission) community. In 2014, the CPSC took initial steps toward revising its 6(b) regulations with a Notice of Proposed Rulemaking (NPR) in 2014. Now, after issuing a fresh Supplemental Notice of Proposed Rulemaking (SNPR) on February 17, the CPSC has re-opened the conversation, and stakeholders have six weeks – until April 3 – to have their say.

Basics of 6(b)

Section 6(b) generally requires the CPSC to:

  1. Provide a manufacturer or private labeler with notice and an opportunity to comment before the agency discloses information about a product from which the public could readily identify that manufacturer or private labeler.
  2. “Take reasonable steps” to assure that CPSC’s disclosure of such product-specific information is “accurate, and that such disclosure is fair in the circumstances and reasonably related to effectuating the purposes of the CPSA.” 15 U.S.C. § 2055(b)(1).

The process generally occurs in two phases — a 10-day period of initial notice of a planned disclosure, 15 U.S.C. § 2055(b)(1), and a five-day notice period when the CPSC lands on its final disclosure, 15 U.S.C. § 2055(b)(2). CPSC can shorten the notice periods if the Commission finds “that the public health and safety requires a lesser period of notice.” 15 U.S.C. § 2055(b)(1), (2). A company can then file a lawsuit seeking to enjoin the CPSC from making the disclosure, 15 U.S.C. § 2055(b)(3), but few companies have taken this course.

Critics of Section 6(b) charge that, despite flexibility in the statute, Section 6(b) delays and potentially precludes the Commission from speaking out. Others argue that a process of reasonable steps to ensure fairness and accuracy is a necessary balance to the CPSC’s broad information-gathering authority and reduces the chance that the agency might unfairly destroy the market for a product and a company’s reputation with a single press release. Further, the CPSC has tools available under existing law to get safety information out quickly, as evidenced by the recent flurry of so-called “unilaterals,” which are press releases that the CPSC issues to warn consumers about a company’s product(s) despite company disagreement.

History of 6(b) Debates

CPSC’s rules implementing Section 6(b) were issued in 1983 and have been substantively amended only once, in 2008. In 2014, the CPSC issued a Notice of Proposed Rulemaking that the agency framed as an effort to “modernize” and “streamline” those rules. But the regulated community felt that the NPR went much further, with some “strongly question[ing the NPR’s] necessity” or its proposition that it would enhance public safety. (Testimony of Jonathan Gold, National Retail Federation). In the face of that debate, the NPR languished, staying technically on the CPSC’s agenda but not moving forward.

Now, CPSC has returned to the Section 6(b) issue.

New 6(b) Regulations?

CPSC’s Fiscal Year 2023 Operating Plan calls for the agency to issue both a Supplemental NPR and a Final Rule before October (see “Mandatory Standards Summary Table” at page OS-30). The Commission has taken the first of those steps by issuing the SNPR.

The SNPR takes 2014’s NPR as its point of departure. Because of Section 6(b)’s prominence in the CPSC stakeholder community, we expect that commenters will have much to say on virtually all points of the SNPR, but a few points seem likely to be the focus of much of the discussion.

Already-public information

One of the provisions of the 2014 NPR that drew the most criticism was the statement that Section 6(b)(1) would not apply to “information that is publicly available or that has been disseminated in a manner intended to reach the public in general, such as news reports; articles in academic and scientific journals; press releases distributed through news or wire services; information that is available on the Internet; or information appearing on [].” 79 Fed. Reg. at 10,721. Commenters expressed concern that “[t]his would allow the Commission to disseminate . . . any information that is available on the internet . . . without notifying the manufacturer or providing an opportunity for the manufacturer to comment on or contest the information’s accuracy or the fairness of its disclosure by CPSC in the circumstances.” Others commented that “[t]he release of information by the CPSC adds credibility to” “publicly available information about companies and their products that is not only [frequently] inaccurate, but often inflammatory.”

The SNPR attempts to address commenters’ concerns by providing that Section 6(b)(1) does not apply to the CPSC’s disclosure of publicly available information “provided the Commission clearly indicates the source of the information and the Commission’s use of the information is accurate and not misleading.” The preamble goes further, stating that “the Commission [may] not characterize the publicly available information or relay new information.”

Comments withheld

Another focus of the 2014 NPR comments that has been reintroduced in the SNPR is the CPSC’s treatment of manufacturers’ comments in response to Section 6(b)(1) notices. The CPSA provides that, “In disclosing any information under this subsection, the Commission may, and upon the request of the manufacturer or private labeler shall, include with the disclosure any comments or other information or a summary thereof submitted by such manufacturer or private labeler.” 15 U.S.C. § 2055(b)(1). Currently, CPSC rules provide that “a request that comments be withheld from disclosure will be honored,” 16 C.F.R. § 1101.21(b)(5). See also 16 C.F.R. § 1101.24(c).

The 2014 NPR flipped this presumption: “If a firm objects to disclosure of its comments or a portion thereof, the firm must notify the Commission of such objection at the time the firm submits its comments, provide a rationale . . . and explain why disclosure of the comments is not necessary.” 79 Fed. Reg. 10,725. And the SNPR holds with this approach, “propos[ing] to delete § 1101.21(b)(5) entirely” and revising § 1101.24(c) to provide that “a manufacturer or private labeler must explain its basis for requesting that the Commission exercise its discretion to not disclose the comments.”

Information about a company but not about a particular product

One element of the 2022 SNPR that was not in the 2014 NPR is the provision that CPSC will interpret Section 6(b)(1) as not applying to disclosures of “information about manufacturers or private labelers, provided such information does not designate or describe a consumer product.” This language would appear to provide a company with no notice if the CPSC or one of its officers or employees intended to make comments about the company, so long as those comments do not identify any particular products. We expect this proposed interpretation will generate significant interest from commenters.

Open for Comment

Those who wish to comment on the CPSC’s proposed changes to its interpretation of the Commission’s obligations under Section 6(b) of the CPSA should do so through or not later than April 3, 2023.

Understanding the protections available under Section 6(b) – including the limitations of those protections – is important for companies faced with what they feel are inaccurate or unfair disclosures by the CPSC. The authors, each of whom are members of Arnold & Porter’s Consumer Product Safety team, are available to guide companies through these difficult and often urgent situations and to answer any questions about this post or other CPSC issues.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.