This case involves an attempt by the Consumer Product Safety Commission (CSPC) to post a materially inaccurate report submitted to its new online database of allegedly unsafe products, saferproducts.gov. Before a criticism of a company's product is posted on the website, the CPSC must give the affected company an opportunity to respond. Here, the affected company sued to prevent publication of a materially inadequate report, and the trial court agreed, on 3 separate appeals. The CPSC’s own experts found a lack of association between the risk of harm alleged in the report and the product at issue, which its epidemiological investigation confirmed. After repeated attempts to prevent the CPSC from posing the inaccurate information, the company sued.
The trial court agreed, enjoining the Commission from posting the report, and redacting the company name from public display in the court proceedings. Three consumer groups intervened and appealed, arguing that the company name should be disclosed as public court documents, even though the challenged reports were inaccurate. Media organizations, the AARP, and the ACLU raised similar arguments.
The NAM led a group of associations in filing an amicus brief supporting the court's decisions that the report was inaccurate and should not be posted, and that the company name must continue to be confidential. Disclosure of the name would sacrifice the right the company sought to safeguard by filing suit. The NAM, joined by the American Coatings Association, Association of Home Appliance Manufacturers, Manufacturers Alliance for Productivity and Innovation, Recreational Off-Highway Vehicle Association, and Specialty Vehicle Institute of America explained how certain aspects of the database, as implemented by the CPSC, provide a high risk of submission of erroneous information and allow the potential for misuse. It is important that businesses have a means of addressing false reports before publication without being disclosed, or else their remedy would be useless. If saferproducts.gov includes materially inaccurate reports, it may lose any potential value as a reliable source of product safety information for the public.
We have long fought to prevent the CPSC from providing inaccurate information on its website. Having to disclose the name of a company falsely accused of product safety issues unfairly punishes the company and does nothing to further consumer safety.
On 4/16/14, the Fourth Circuit overturned the trial judge's ruling, holding that it violated the public's "right of access" under the First Amendment. Ordering the case unsealed in its entirety, the appeals court found that the consumer groups had standing to pursue the appeal even though the CPSC did not itself appeal, on the grounds that consumer groups have a public right of access to court proceedings and they advocate on issues relating to the CPSC. That right of access outweighs the desire of a corporation to protect its corporate image, "notwithstanding the negative publicity those documents may shower upon a company." It found no credible evidence supporting the company's fear of reputational or economic injury, particularly since the trial court vindicated the company and its product. One of the judges wrote separately that publication of false and misleading reports could be catastrophic to the company, and the result might be different if it could prove that publication would cause substantial and irreparable economic harm.