UK: New consumer product safety rules in place

The UK Regulations implementing the amended European General Product Safety Directive laid before Parliament on 6 July will come into force on 1 October 2005.

The amended Directive introduces important duties for producers and distributors of consumer products to monitor their safety in use, and notify the existence of dangerous products to the authorities - To view the article in full please see below:

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Implications of the new General Product Safety Directive

New legislation in 2004 is likely to present enormous challenges to manufacturers, distributors and insurers of consumer products.

It will be imperative for manufacturers and distributors to have effective and integrated post-marketing vigilance systems, which record and assess any information which comes to light from whatever source (including customer complaints) on safety issues associated with products. Systems must also be in place which are capable of taking effective action in order to safeguard consumers' safety, such as the ability to communicate effectively with consumers (keeping identification records will be necessary where appropriate), and above all the ability to undertake an effective recall of the products from consumers – not just from the chain of distribution.

Challenging as these aspects are, the new obligation which is likely to give rise to the most problems is that all producers (including manufacturers, importers into the EU, and own-branders) and all distributors must notify the authorities immediately if they have placed a consumer product on the market which no longer satisfies the legal definition of being safe.

This notification provision, which is based on the US CPSC legislation, may well lead to considerable confusion. First, it will be important to have sound legal and technical advice on whether products are legally safe or dangerous. Secondly, notification must be given to every authority in whose jurisdiction the product is marketed – that means notifying some 220 Trading Standards Departments in England and Wales alone, as well as national or local authorities in other Member States. Thirdly, inconsistencies may also arise where differing information and notifications relating to the same product are given by distributors and by producers. Fourth, each authority may have a different view on the seriousness of the problem, and on what should be done about it. It is highly likely that the number of recalls will increase.

There will also be a significant problem about maintaining confidentiality in the product information which is passed to the authorities. The legislation specifies that the general principle is that the authorities must publish information on unsafe products. Companies will have to develop strategies on their dealings with the authorities in this respect.

As a result of all these changes, it is highly likely that product liability claims will increase.

The new obligations are contained in Directive 2001/95/EC on general product safety. This is supposed to be implemented into EU Member States' national laws by 14 January 2004, although the UK and several other States are unlikely to introduce domestic legislation before the Autumn. The new Directive considerably extends the obligations that already exist under Directive 1995/59/EEC (implemented in the UK by the General Product Safety Regulations 1996). Various Guidelines are being prepared by the European Commission on notification, recall, and the tricky issue of which GPSD obligations apply to products that are also covered by other legislation, such as pharmaceuticals, cosmetics, motor vehicles or New Approach products (electricals, machinery, medical devices etc).

The UK Regulations include two interesting new provisions:

1. the DTI will provide a notification service to all other EU Member State authorities, saving UK producers and distributors the necessity of doing this themselves if they do not wish to
2. in order to try to avoid a situation where a local Trading Standards Officer triggers a recall unnecessarily, a producer/distributor may insist on an ADR mechanism to be invoked (early neutral evaluation by a judge appointed by the Academy of Arbitrators).

An important future development was announced in the recent DTI Consumer Strategy, under which a new national body will be established to regulate national businesses on consumer trading issues, thereby avoiding the need to liaise with over 200 Trading Standards Departments and the "home authority" principle.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 18/07/2005.