We have recently written about the U.S. Consumer Product Safety Commission’s (CPSC) mistaken disclosure of sensitive information and the CPSC’s current data-protection processes and their limits. In the weeks and months ahead, we anticipate a determined challenge to those limited but vital protections. Here, we make the case for why CPSC stakeholders who appreciate their value should prepare to defend them.

More than a decade has passed since Congress has made major changes to the Consumer Product Safety Act (CPSA), so a near-term reform effort seems likely. Repeal of Section 6(b) is likely to be a central issue. Critics – including NGOs, commissioners, and members of Congress – have sought to eliminate 6(b) since the CPSA was originally enacted.  They got halfway there in 2008 amid strident industry opposition, ultimately settling on a compromise that cut the statutory notice periods in half and a public database that lives outside of 6(b). Now, 6(b) supporters should be ready once again to vocally defend the provision’s moderate but vital protections.

Critics of 6(b) generally make one of three arguments:  1) that 6(b) silences the agency; 2) that its procedures are too burdensome; and 3) that it is an anomaly among health and safety statutes. All three arguments are misplaced.

6(b) Is Not a “Gag Order”

First, 6(b) does not silence the agency.

Instead, 6(b) provides only for a limited, moderate process of notice and review. And that process is ultimately optional, as the agency has a variety of options if it must communicate urgent hazards. It can file an action to force a recall. It can short-cut the process and issue a unilateral statement. Or it can circumvent 6(b) altogether by discussing a product category rather than an individual product.

6(b) Is Not a High Price to Pay for Fairness and Accuracy

Second, 6(b)’s procedures are not burdensome. The statute asks that the CPSC “take reasonable steps to assure” the fairness and accuracy of its disclosures. These steps include giving notice and an opportunity to comment, but the agency can shorten the default notice periods and can ultimately disclose over any objections.

Rather than focus on 6(b)’s ordinary process, however, critics highlight something that almost never happens: injunctions. Under 6(b), companies can try to enjoin a CPSC disclosure. But litigating against the agency in court is daunting, and companies typically try to negotiate a more agreeable version or respond in the press, not in court.

With litigation rare and its procedures’ brief pause properly understood, the added assurance of fairness and accuracy 6(b) provides is a bargain.

We Should Not Upset a Delicate Balance

Finally, while other agencies may not be restricted by a regulation like 6(b), they do not have the same access to the same information that the CPSC does.

Critics highlight, for example, the fact that National Highway Traffic Safety Administration (NHTSA) does not have similar restrictions on disclosure of information. That makes sense, though, because vehicle manufacturers must notify NHTSA only after they have identified a safety-related defect. CPSC-regulated companies must report any “information which reasonably supports the conclusion” that a defect exists.¹ If the company and the agency later determine that there is no defect or hazard – or that the information was fraudulent – that may obviate a recall, but the company’s reporting duty is unchanged.

A unanimous U.S. Supreme Court recognized that the need for balance for the CPSC is unique, writing that 6(b) represents Congress’ attempt to balance the CPSC’s information-handling responsibilities with its extraordinary information-gathering authorities.²

Repealing 6(b) would upset this balance, creating the risk that the CPSC could, despite its good faith,  pass on bad information to the public.  It is unclear how any repeal would benefit consumers, who are already inundated with information sources they aren’t sure they can trust. One of the sources they do generally trust is government, particularly health and safety agencies. If the CPSC repeats – under a government logo – faulty information, consumers may feel misled and may lose their trust in the agency.

While the timeline here is uncertain, a debate over 6(b)’s future is coming, and those who value the confidence it gives companies and consumers should ensure their voices are heard. Stay tuned: the Senate will likely hold an oversight hearing in the next few weeks.

[1] 15 U.S.C. § 2064(b)(3).

[2] Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 111-12 (1980).