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Product safety

This section contains:


Introduction
Definitions
General safety requirement
Obligation on producers to provide information
Obligations on distributors
Obligations on producers and distributors
Enforcement
  Civil enforcement
  Criminal enforcement

Introduction

The Consumer Protection Act 1987 (Part II) formerly contained the general safety requirement applicable to all goods irrespective of whether specific safety regulations had been made in respect of them. However, this legislation was replaced by the General Product Safety Regulations 2005 (SI 2005 No 1803) (GPSR) which implement Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (OJ No L11, 15/1/2002 p 4).

Further reading: see the Business Companion Guide - Product Safety

Definitions

The GPSR contains certain special definitions including:

* ‘Distributor’: a professional in the supply chain whose activity does not affect the safety properties of a product;

* ‘Member State’: an EU member state, Norway, Iceland or Liechtenstein;

* ‘Producer’: the manufacturer of a product, when he is established in a Member State and any other person presenting himself as the manufacturer by affixing to the product his name, trade mark or other distinctive mark, or the person who reconditions the product.
When the manufacturer is not established in a Member State, a representative of the producer who is established in a Member State.
In any other case, the importer of the product from a state that is not a Member State into a Member State.
Other professionals in the supply chain may be treated as producers, insofar as their activities may affect the safety properties of a product.

* ‘Product’: a product which is intended for consumers or likely, under reasonably foreseeable conditions, to be used by consumers even if not intended for them and which is supplied or made available, whether for consideration or not, in the course of a commercial activity and whether it is new, used or reconditioned and includes a product that is supplied or made available to consumers for their own use in the context of providing a service.
‘Product’ does not include equipment used by service providers themselves to supply a service to consumers, in particular equipment on which consumers ride or travel which is operated by a service provider.

* ‘Safe product’: a product which, under normal or reasonably foreseeable conditions of use including duration and, where applicable, putting into service, installation and maintenance requirements, does not present any risk or only the minimum risks compatible with the product's use, considered to be acceptable and consistent with a high level of protection for the safety and health of persons. In determining the safety of a product. there must be taken into account:

  * the characteristics of the product, including its composition, packaging, instructions for assembly and, where applicable, instructions for installation and maintenance;
* the effect of the product on other products, where it is reasonably foreseeable that it will be used with other products;
* the presentation of the product, the labelling, any warnings and instructions for its use and disposal and any other indication or information regarding the product; and
* the categories of consumers at risk when using the product, in particular children and the elderly.

The Regulations apply to a product in so far as there are no specific provisions with the same objective in rules of EU law governing the safety of the product.

General safety requirement

No producer may supply or place a product on the market unless the product is a safe product. (reg.5 GPSR).

In the absence of specific provisions in rules of EU law governing the safety of a product, if the product conforms to the specific rules of the law of part of the UK laying down the health and safety requirements which the product must satisfy in order to be marketed in the UK, the product is deemed safe so far as concerns the aspects covered by such rules (reg.6 GPSR).

If a product conforms to a voluntary national standard of the UK giving effect to a European standard the reference of which has been published in the Official Journal of the European Union, the product is presumed to be a safe product so far as concerns the risks and categories of risk covered by that national standard.(ibid.)

Obligation on producers to provide information

Within the limits of his activities, a producer must provide consumers with the relevant information to enable them:

* to assess the risks inherent in a product throughout the normal or reasonably foreseeable period of its use, where such risks are not immediately obvious without adequate warnings, and

* to take precautions against those risks.(reg.7 GPSR)

Within the limits of his activities, a producer must adopt measures commensurate with the characteristics of the products which he supplies to enable him to:

* be informed of the risks which the products might pose, and

* take appropriate action including, where necessary to avoid such risks, withdrawal, adequately and effectively warning consumers as to the risks or, as a last resort, recall.
The measures referred to include:

* except where it is not reasonable to do so, an indication by means of the product or its packaging of the name and address of the producer, and the product reference or where applicable the batch of products to which it belongs; and

* where and to the extent that it is reasonable to do so, sample testing of marketed products, investigating and if necessary keeping a register of complaints concerning the safety of the product, and keeping distributors informed of the results of such monitoring where a product presents a risk or may present a risk.(ibid.)

Obligations on distributors

A distributor must act with due care in order to help ensure compliance with the applicable safety requirements and in particular he:

* must not expose or possess for supply or offer or agree to supply, or supply, a product to any person which he knows or should have presumed, on the basis of the information in his possession and as a professional, is a dangerous product; and

* must, within the limits of his activities, participate in monitoring the safety of a product placed on the market, in particular by passing on information on the risks posed by the product, keeping the documentation necessary for tracing the origin of the product and producing the documentation necessary for tracing the origin of the product, and cooperating in action taken by a producer or an enforcement authority to avoid the risks. (reg.8 GPSR)

Obligations on producers and distributors

If a producer or a distributor knows that a product he has placed on the market or supplied poses risks to the consumer that are incompatible with the general safety requirement, he must forthwith notify an enforcement authority in writing of:

* that information;

* the action taken to prevent risk to the consumer; and

* where the product is being or has been marketed or otherwise supplied to consumers outside the United Kingdom, of the identity of each Member State in which, to the best of his knowledge, it is being or has been so marketed or supplied.

This does not apply:

* in the case of a second-hand product supplied as an antique or as a product to be repaired or reconditioned prior to being used, provided the supplier clearly informed the person to whom he supplied the product to that effect; and

* in conditions concerning isolated circumstances or products.

In the event of a serious risk the notification must include certain additional information enabling a precise identification of the product or batch of products in question. (reg.9 GPSR)

Enforcement

Civil enforcement

Local authorities in general in the UK are charged with the duty to enforce the GPSR. An enforcement authority is required in enforcing the Regulations to act in a manner proportionate to the seriousness of the risk and must take due account of the precautionary principle. It must encourage and promote voluntary action by producers and distributors.

Suspension notices: where an enforcement authority has reasonable grounds for suspecting that a requirement of the Regulations has been contravened in relation to a product, the authority may, for the period needed to organise appropriate safety evaluations, checks and controls, serve a suspension notice prohibiting the person on whom it is served from supplying or placing the product on the market.

Requirements to mark: where an enforcement authority has reasonable grounds for believing that a product is a dangerous product in that it could pose risks in certain conditions, the authority may serve a requirement to mark notice requiring the person on whom the notice is served at his own expense to ensure that the product is marked in accordance with requirements specified in the notice with warnings as to the risks it may present, and to make the marketing of the product subject to prior conditions as specified in the notice so as to ensure the product is a safe product.

Requirements to warn: where an enforcement authority has reasonable grounds for believing that a product is a dangerous product in that it could pose risks for certain persons, the authority may serve a requirement to warn notice requiring the person on whom the notice is served at his own expense to:

* (to the extent it is practicable to do so) ensure that any person who could be subject to such risks and who has been supplied with the product be given warning of the risks in good time and in a form specified in the notice;

* publish a warning of the risks in such form and manner as is likely to bring those risks to the attention of any such person;

* ensure that the product carries a warning of the risks in a form specified in the notice.

Withdrawal notices: where an enforcement authority has reasonable grounds for believing that a product is a dangerous product, the authority may serve a withdrawal notice prohibiting the person on whom it is served from supplying or placing the product on the market. A withdrawal notice may require the person on whom it is served to take action to alert consumers to the risks that the product presents.
In relation to a product that is already on the market, a withdrawal notice may only be served by an enforcement authority where the action being undertaken by the producer or the distributor concerned in fulfilment of his obligations under the Regulations is unsatisfactory or insufficient to prevent the risks concerned to the health and safety of persons.
A withdrawal notice need not be served in the case of a product posing a serious risk requiring, in the view of the enforcement authority, urgent action.

Recall notices: where an enforcement authority has reasonable grounds for believing that a product is a dangerous product and that it has already been supplied or made available to consumers, the authority may serve a recall notice requiring the person on whom it is served to use his reasonable endeavours to organise the return of the product from consumers to that person or to such other person as is specified in the notice.
A recall notice may require the recall to be effected in accordance with a code of practice applicable to the product concerned, or the recipient of the recall notice to:

* contact consumers who have purchased the product in order to inform them of the recall, where and to the extent it is practicable to do so;

* publish a notice in such form and such manner as is likely to bring to the attention of purchasers of the product the risk the product poses and the fact of the recall; or

* make arrangements for the collection or return of the product from consumers who have purchased it or for its disposal.
A recall notice may only be issued by an enforcement authority where:

* other action which it may require under the Regulations would not suffice to prevent the risks concerned to the health and safety of persons;

* the action being undertaken by the producer or the distributor concerned in fulfilment of his obligations under the Regulations is unsatisfactory or insufficient to prevent the risks concerned to the health and safety of persons; and

* the authority has given not less than ten days’ notice to the person on whom the recall notice is to be served of its intention to serve such a notice.
The requirement to serve a recall notice does not apply in the case of a product posing a serious risk requiring, in the view of the enforcement authority, urgent action.

General requirements relating to safety notices: whenever feasible, prior to serving any notice as referred to above (a safety notice), the authority must give an opportunity to the person on whom the notice is to be served to submit his views to the authority.
A safety notice must:

* describe the product in a manner sufficient to identify it;

* state the reasons on which the notice is based;

* indicate the rights available to the recipient of the notice under these Regulations and (where applicable) the time limits applying to their exercise; and

* in the case of a suspension notice, state the period of time for which it applies.

Appeals: there is a right of appeal against a safety notice to the magistrates’ court or (in Scotland) to the Sheriff.
There is provision for the award of compensation in certain circumstances, if in fact the person did not contravene any requirement of the Regulations and the exercise by the authority of the power to serve the suspension notice was not attributable to any neglect or default by that person.

Forfeiture orders: an enforcement authority has power to apply to the court for a forfeiture order on the grounds that a product is dangerous.

Criminal enforcement

Breach of the general safety requirement on producers, breach of the obligation on distributors, failure to comply with a safety notice and contravention of certain other provisions of the GSPR is a criminal offence.
There is a due diligence defence to a charge of an offence under the GPSR.
In the case of a product sold as an antique, there is a defence to a charge of breach of the general safety requirement on producers or a breach of the obligation on distributors, if the producer or distributor clearly informed the person to whom he supplied the product that the product is an antique.

There is provision for Director’s criminal liability.

[Page created: 26/02/2014]

 

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