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Monday January 23, 2023

Disclosure Implies Newness, Commissioners Hear on 6(b) Updates

Many of CPSC staff's 6(b) proposals rely on an understanding of disclosure as involving release of new information. For example, commissioners heard at a January 18 briefing that already-public items cannot be newly revealed, so they should not trigger 6(b) (see related story in this issue). However, CPSC attorney Amy Colvin responded to Chairman Alexander Hoehn-Saric that the shift would come with duties for CPSC to ensure fairness to companies, and she assured him that protections of confidential commercial and financial information would remain unaffected.


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One fairness duty that CPSC would impose on itself – to give some level of vetting of the source's reliability – drew a caution from Commissioner Peter Feldman about crossing over into content moderation. He additionally anticipated possible strain between goals of properly contextualizing the information and not characterizing it.


Feldman also urged steps to ensure that information released by CPSC does not morph into being perceived as from CPSC. He pointed as an example to the agency's past mention of beach umbrella tips from a Maryland newspaper, which he said grew into being attributed to CPSC.


Colvin could not immediately answer Feldman's question about who would decide – staffers or commissioners – if a possible new exception applies to a situation. Staffers propose that 6(b) be set aside in extraordinary circumstances. Her example was details about a product danger becoming known on the eve of a holiday during which the product has wide use. (A second proposed exception involves inability of CPSC to contact a company after diligent attempts.)


Commissioner Richard Trumka also focused on the idea of not characterizing, wondering about ambiguity in how the proposal describes that goal and need for clarification.


He also asked about the frequency that companies request that their comments about release not be made public. They often do in Colvin's experience, but she stressed that she did not have data. Protections of commercial/financial information and facts about settlements are typical reasons they cite.


Commissioner Mary Boyle did not ask questions.