A major battle is building over the right of the Consumer Product Safety Commission to release information about products blamed by consumers for causing injuries and perhaps even deaths.
The agency has formally asked Congress to amend the current law so that consumer complaint information can be dispensed more easily and cheaply. Industry groups, meantime, are pushing for more restrictions on the agency to make the disclosure of product information more difficult.
The disagreement so far has been relatively low-keyed, with differences of opinions expressed in private meetings, letters and informal conversations. But the controversy will burst into public view when Congress holds the reauthorization hearings on the CPSC. The first will be Feb. 25 in the Senate, the second, in the House, probably in March, although no specific date has been set.
Rep. Henry A. Waxman (D-Calif.), chairman of the House subcommittee on health and the environment, which has oversight over the CPSC, sums up the problem this way:
"The disclosure rules now in effect for the CPSC are too complex.
"We don't want the agency to be so hampered by complex restrictions that it can't inform the public of dangerous products in a timely fashion. On the other hand, we don't want the CPSC to release information that would injure business."
Neither does the business community.
To prevent that, representatives of the National Association of Manufacturers, the U.S. Chamber of Commerce, Procter & Gamble and General Electric have formed an "information and contact" task force to talk to members of Congress and their staffs and to help come up with legislation restricting disclosure of product information by the CPSC.
"Disclosure is one of the key issues in reauthorization," said Jan Amundson, NAM's deputy general counsel, who believes that the agency's present authority to disclose product information is "fairly frightening."
"Somebody could get hold of something [product information], put it in a news article and have a potentially damaging effect on a product in the marketplace -- and later it could turn out to be wrong," she said. "But by that time, the damage would be done already. Apologies, retractions often are too late."
Meantime, the CPSC has mounted its own offensive, including sending a letter to Waxman citing amendment of the disclosure section as an area of critical concern to the commission as it approaches reauthorization.
In the letter, Edward D. Harrill, CPSC director of congressional relations, pointed out that CPSC is the only federal agency with a statutory provision restricting the way that FOIA requests are processed.
Harrill also said that internal CPSC procedures adequately safeguard manufacturers and private labelers.
The agency has proposed amendments to the disclosure procedure, Harrill said, that would ensure "that the requestor has the information necessary to evaluate the credibility of the material without making the commission a guarantor of accuracy. This procedure would allow the commission to expeeditiously respond to FOIA requests, conserve limited resources and, we believer, be consistent with the intent of the statute."
At the heart of the controversy are the letters and telephone calls from consumers who contact the CPSC to compain about particular products by name and the health and safety problems they have had with those products.
"The typical complaint is from someone who says that he went to turn on his television seet, there was a puff of smoke and it started burning," explained one agency official. "Or from someone who says, 'I turned on my toaster and it started melting.' Or 'I turned on my gas oven and it exploded' -- those kinds of incidents that happened to them personally."
Current law now restricts the manner in which the agency can release the consumer complaint letters and phone calls containing product names and manufacturers. The restrictions were part of Section 6(b) of the Consumer Product Safety Act, which established the agency in 1972, but court rulings and congressional actions in the past two to three years have toughened Section 6(b) to the extent that virtually no consumer complaint information containing product and company names is being released by the CPSC in response to FOIA requests, agency officials say.
"We now are releasing consumer complaints with product names and companies only when we have detailed documentation supporting the complaint," said one agency official. "That means we don't give out consumer complaint information."
A proposal has been published in the Federal Register to establish a second and more flexible system for complying with the current restrictions. Under that proposal, the agency would take a series of prescribed steps to guard against inaccuracy in consumer complaints before releasing them. The steps would require that the CPSC, before complying with an FOIA request for consumer complaints, mail the complaints to the manufacturer, allow him two weeks to review them and comment on their accuracy and fairness. The CPSC staff, when it received the manufacturer's comments, would then analyze them and make a final judgment on whether the consumer complaints were accurate and fair and decide if they should be released.
The CPSC estimates that it takes two hours of staff time to process an FOIA request for general information -- compared to the 31 staff hours that would be necessary to process an FOIA request for consumer complaint information under the proposed system.