Consultation is well under way for the transposing of the revised EU General Product Safety Directive into UK law. But how will the proposed regulations change the existing regime for manufacturers, distributors and retailers? Osborne Clarke health and safety law expert Dale Collins reports.
General Product Safety Regulations 2005
Consultation is well underway for the transposing of the revised General Product Safety Directive (2001/95/EEC) into UK legislation in the guise of the proposed General Product Safety Regulations 2005.
But how will the proposed Regulations change the existing regime?
Whilst the stated purpose of the draft Regulations remains the same, namely to "keep the UK as one of the safest places in Europe for consumers", the manner of doing so has been greatly expanded.
The following are some of the new requirements brought about by the revision.
Extended Coverage
The draft Regulations include reference to professional products that migrate to the general consumer market (for example, specialised equipment available through tool hire shops) and products used in the course of service (for example, exercise machines in gymnasiums).
Indeed, the Regulations go further than the revised Directive in that they include antiques and products supplied for reconditioning/repair. However, where the product is supplied for reconditioning/repair to a person undertaking that specific form of work, the Regulations will not apply to such second-hand products.
Obligation to Notify
This duty is placed on both producers and distributors, and requires each to notify the enforcement authority as soon as they become aware that a product placed on the market or supplied poses a risk to the consumer which is incompatible with the general safety requirement. They will also have to detail the steps they have taken to prevent any further risk. Such steps may include the issuing of warnings to consumers, the withdrawal of the product from the market or a product recall from consumers.
The effectiveness, or otherwise, of the steps taken will clearly be linked to the effectiveness of the system of monitoring and auditing the producers and distributors have in place to enable the tracing of the product.
Register of Safety Complaints
To enable the producer to be informed of the risks any product might pose, and to effectively deal with those risks, there is a new obligation upon him to keep a register of complaints concerning the safety of the products and to keep the distributors informed of the results of such monitoring where a product presents a risk or may present a risk.
This requirement is linked with the obligation, "except where it is not reasonable to do so," to indicate on the product or its packaging the name and address of the producer and its batch reference number.
Distributors to Provide a Documented Audit Trail
This new requirement upon the distributor requires him, within the limits of his activities, to participate in the monitoring of product safety by keeping and producing documentation necessary for tracing the origin of the product.
Enforcement
In addition to the new obligations placed upon the producers and distributors, the enforcement authorities also face obligations and additional powers, the most controversial of which is the proposal to provide the enforcement authority, where it has reasonable grounds for suspecting that a product is a dangerous product and it has been supplied or made available to consumers, with the ability to serve a notice requiring the recipient of the notice to use his reasonable endeavours to organise the return of the product from consumers. This step will be taken where all other methods of protection appear to the enforcement authority to be inadequate, and both the producers and the distributors of the product are under a duty to co-operate.
Should the recipient of the notice fail to comply with the notice, the enforcement authority can undertake the recall itself and claim any costs incurred by it in that regard from the recipient.
In addition, failing to comply with such a notice is a criminal offence, making the recipient liable on conviction on indictment to imprisonment for a term not exceeding 12 months or to a fine not exceeding £20,000 or both, or on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding £5,000 or both.
The recipient of such a recall notice (and other such safety notices; a withdrawal notice, a suspension notice, a requirement to mark or a requirement to warn) may appeal to the magistrates' court within 21 days of service of the notice to have the order set aside or varied.
Conclusion
This brief overview of the proposed regulations is simply an indication of the changes that are forthcoming (the consultation period finishes on 31 March 2005 but it is unlikely that the issues mentioned above will change to any great degree). In preparation for the changes the following need to be considered:-
- If not already in place, begin the process of recording customer complaints and a monitoring system to highlight "repeat offending products";
- Ensure monitoring and auditing systems are in place to allow the effective tracing of products;
- Review insurance cover in relation to product recall;
- Most importantly, ensure that a management plan is in place which enables the reporting of any product defect to be dealt with effectively and efficiently, thereby increasing the confidence that an enforcing authority may have in the business' ability to deal with such an issue (hich may in turn ensure that recall notices are not served).
