By Teresa Hitchcock
Product safety law is fraught with dangers for those in the supply chain and is especially acute for those involved in retail. Failure to comply with product safety legislation can lead to prosecution of an individual or company. Further, there are a number of enforcement powers available to the regulatory authorities, which are backed up by sanctions in addition to prosecution where retailers fail to ensure that products which they placed on the market or supply for sale are safe.
Given the potential repercussions, retailers do need to ensure that they are aware of and meet their responsibilities with regard to product safety. This is particularly so in the case of “fake” products, even if acquired entirely innocently, as these are less likely to have undergone the required conformity assessment procedures needed to meet EU requirements.
Responsibilities for product safety
As a general principle, the manufacturer is typically the party in the supply chain that is responsible for ensuring that the relevant product is compliant with all regulatory requirements. However, where the manufacturer is based outside of the EU and your retail company imports the products into the EU, or where your company rebrands good with its own mark, then in both cases, your company will effectively step into the shoes of the manufacturer and be responsible for ensuring product compliance.
In practice, this is likely to mean that assurances and evidence will need to be sought from the ultimate manufacturer that the products are compliant. In some cases, for example in the case of higher risk products, you may need to carry out further work (such as testing) to ensure that products are compliant.
European product safety legislation
The principal regulatory control imposed at EU level is the General Product Safety Directive (2001/95/EC), which imposes a general obligation on all those who place consumer products on the EU market to ensure that they are “safe”.
There are also a number of directives which apply to specific products, or categories of product – the “New Approach” directives. Broadly speaking, the directives set out the “essential safety requirements” that a specific product must meet when it is placed on the market. These requirements often apply to goods supplied for the workplace as well as those supplied for consumers.
In the EU, certain products must carry the “CE” mark, to demonstrate that the products conform with EU requirements, and as a general rule, all “New Approach” directives require CE marking.
Retailers should review their range to check for CE marking and require evidence from manufacturers that products conform with the relevant directive where applicable.
UK product safety legislation
The General Product Safety Regulations 2005 implement the EU Product Safety Directive in the UK. As with the EU directive, the 2005 regulations state that products intended for consumers must be “safe”, and while this responsibility is normally with the manufacturer, again the retailer will assume responsibility if it imports products from outside the EU or applies its brand or other mark to the products.
The 2005 Regulations also state that distributors, including retailers, must not sell dangerous products, or products that they should have assumed to be unsafe based on the information they have. Retailers and distributors are also required to participate in monitoring product safety. They should therefore request and retain documentation from manufacturers that regards product safety and the origin of the product, and pass on information about the risks posed by the product. Retailers, suppliers and manufacturers must notify the relevant enforcement authority when a product does not comply with the general safety requirement and co-operate with the regulator in the case of an investigation, including providing documentation.
The law also imposes civil obligations on retailers. The Sale of Goods Act 1979 provides that all products supplied to consumers must be “fit for purpose” and “of satisfactory quality”. The Consumer Protection Act 1987, which implements the EU Product Liability Directive (85/374/EEC), makes manufacturers strictly liable for death, injury, loss or damage caused by defective/unsafe products. Liability also extends to retailers if they have imported the product into the UK from outside the EU and/or put their name or mark to the product.
The responsibility for “on the ground” inspection and enforcement of consumer products legislation falls primarily to the trading standards departments of the local authority in the area in which the product is being sold.
Local authorities have wide powers to search premises and seize products, and local authority officers – trading standards officers – can serve a formal notice prohibiting the movement of certain goods, or can order that a product is marked with suitable warnings. Action could also involve requirements to give warnings to those already supplied with a product, withdrawal notices which stop further products being placed on the market or supplied, and recall notices, which can require the recall from consumers of products already supplied.
Similarly, if they consider that there has been a serious breach of the legislation they do have the power to prosecute companies for non-compliance with trading standards legislation.
Some aspects of the above are set to change when the EU implements its new Product Safety and Market Surveillance Package. The package would repeal the EU General Product Safety Directive, replacing it with two new regulations.
Retailers should be aware that products not currently covered by a “New Approach” directive will be subject to identical obligations under the new Regulation on Consumer Product Safety. This may include a requirement that all products, even those not covered by a “New Approach” directive, are marked with the country of origin – however this remains under discussion.
Also of significance for retailers is that the new Market Surveillance Regulation will target all products, not just those intended for consumers, and will extend to workplace health and safety, environmental risks and public security. Authorities will also need to consider a wider range of non-compliance, such as a lack of CE mark or technical papers, which could result in products being withdrawn or recalled even if they are safe.
The package was due to enter into force in January 2015, however this has been pushed back to August 2016 at the earliest due to political controversy surround the marking of origin issue.
Teresa Hitchcock is UK head of Safety Health and Environment within the Regulatory and Government Affairs group of DLA Piper LLP.