The opinion of the court was delivered by: LACEY
This is an application for a temporary restraining order by the plaintiff to restrain the defendant from publishing a certain press release. Because of the emergent nature of the matter, I am placing this opinion in the record.
Defendant, Consumer Product Safety Commission ("CPSC"), intends to distribute immediately a press release, the text of which is as follows:
"FOUR DANARA SQUEEZE TOYS MAY PRESENT CHOKING HAZARD TO INFANTS AND SMALL CHILDREN. WASHINGTON, D.C. -- The Consumer Product Safety Commission today announced that its staff has made a preliminary determination that four squeeze toys distributed by Danara International, Ltd., of South Hackensack, New Jersey, may cause choking and/or suffocation because the handles are small enough to lodge in the throat and obstruct the airway. Although these particular squeeze toys have not been involved in any choking incidents known to CPSC, similar shaped squeeze toys have been involved in choking deaths.
"All four squeeze toys have bulbous shaped ends measuring 3/4" to 1 1/2" in diameter. These toys are described as follows:
"Mickey Mouse head on a yellow handle, 5 1/2" long.
"Mickey Mouse head on a yellow handle, 7" long.
"Donald Duck head on a blue handle, 6 1/2" long.
"Yellow mallet with Mickey Mouse face and 'MICKEY' embossed on handle, 7 1/4" long with bulbous end.
"These toys are made of soft, easily compressed plastic material and are packaged and sold under the brand name 'SAFE-GUARD' and labeled 'WALT DISNEY CHARACTER Squeek-A-Toy.' The Mickey Mouse and Donald Duck toys are labeled 'No. 5523.' The mallet is labeled 'No. 5503.' Stamped below the back of the neck of the Mickey Mouse and Donald Duck toys is 'WALT DISNEY PRODUCTIONS DANARA INTERNATIONAL LTD MADE IN TAIWAN.' Stamped around the squeaker of the mallet is 'WALT DISNEY PROD MADE IN TAIWAN DANARA INTERNATIONAL.'"
[Photographs of products then follow.].
The CPSC purports to be acting pursuant to the authority granted it by Sections 6(b)(1) and 6(b)(2) of the Consumer Product Safety Act, 15 U.S.C. Sections 2055(b)(1), 2055(b)(2), which provide:
"(b)(1) Except as provided by paragraph (2) of this subsection, not less than 30 days prior to its public disclosure of any information obtained under this chapter, or to be disclosed to the public in connection therewith (unless the Commission finds that the public health and safety requires a lesser period of notice and publishes such a finding in the Federal Register), the Commission shall, to the extent practicable, notify and provide a summary of the information to, each manufacturer or private labeler of any consumer product to which such information pertains, if the manner in which such consumer product is to be designated or described in such information will permit the public to ascertain readily the identity of such manufacturer or private labeler, and shall provide such manufacturer or private labeler with a reasonabl opportunity to submit comments to the Commission in regard to such information. The Commission shall take reasonable steps to assure, prior to its public disclosure thereof, that information from which the identity of such manufacturer or private labeler may be readily ascertained is accurate, and that such disclosure is fair in the circumstances and reasonably related to effectuating the purpose of this chapter. 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 summary thereof submitted by such manufacturer or private labeler to the extent permitted by and subject to the requirements of this section.
"(2) If the Commission determines that a document claimed to be inaccurate by a manufacturer or private labeler under paragraph (1) should be disclosed because the Commission believes it has complied with paragraph (1), the Commission shall notify the manufacturer or private labeler that the Commission intends to disclose such document at a date not less that 10 days after the date of the receipt of the notification. The Commission may provide a lesser period of notice to disclose if the Commission finds that the public health and safety requires a lesser period of notice and publishes such finding in the Federal Register."
By letter of May 25, 1982, the Commission informed Plaintiff Danara International, Ltd., ("Danara"), that the Commission had received reports that squeeze toys had been involved in recent choking deaths. The squeeze toys, according to the Commission's letter, were shaped similarly to rattles which were removed from the market upon the issuance of CPSC's Requirements for Rattles, 16 CFR 1510. The letter continued:
"Although squeeze toys are not subject to 16 CFR 1510, we are concerned that some squeeze toys may present the same type of choking and suffocation hazard as those pre-standard rattles. During a recent inspection of a retailer, we collected Squeek-A-Toy No. 5523 (A Mickey Mouse head on a handle in two sizes -- 5 1/2" and 7" long). Also collected at a different location were two Squeek-A-Toys No. 5503. (a wrench with a Donald Duck picture on it and a mallet with a Mickey Mouse picture on it) and Safe-Guard Squeeze Toy No. 611 (Giraffe).
The letter sought the cooperation of Danara in formulating corrective action and assured Danara that, pursuant to the Commission's own statutory scheme, confidential information provided to the Commission pursuant to the requested disclosure would be protected from public dissemination. To obtain the protection from disclosure, however, Danara was instructed to stamp the information "Confidential."
Danara responded through counsel to the letter of the Commission, purportedly in compliance with the request for submission of 16 CFR 1115.13(d) information. The letter (not marked "Confidential") objected to the application of the "Rattle" guidelines to Danara's products without the benefit of a prior hearing and industry-wide regulation on this point. No suggested corrective action was offered by Danara.
Moreover, plaintiff did not ask to review the data and other "similar" products referred to by the CPSC letter of May 26, 1982.
On June 10, 1982, a meeting was held between Danara and a Compliance Officer of the Commission. The Compliance Officer described the chronology of the case and indicated those Danara squeeze toys which the Commission felt were hazardous and should be removed from the market. This meeting was followed by a letter from the Commission to Danara, which stated that "The Commission may issue a press release containing some of the information set forth above [that Danara's squeeze toys presented a choking and/or suffocation hazard] and drawings of the squeeze toys . . . . The Commission may also disseminate this information to appropriate consumer groups and to publishers of baby product-oriented publications." The letter also invited comments from Danara to be included in the press release if Danara felt that ...