This guidance is for England, Scotland & Wales
Consumer products must be ‘safe’. Safety can be assessed by the application of standards; if the product complies with a harmonised European standard, it is automatically taken to be safe. This is known as a presumption of conformity.
The General Product Safety Regulations 2005 (GPSR) provide the main basis for ensuring the safety of consumer goods by imposing certain controls. These ensure that all products intended for or likely to be used by consumers under normal or reasonably foreseeable conditions are safe.
As a manufacturer, own-brander or importer of consumer goods (all of which are termed a ‘producer’ under the Regulations) you will have certain obligations, including traceability and monitoring requirements.
Where a product is already subject to other existing regulations (for example, toys) then those regulations will apply to that product; the GPSR do not apply to the safety of a product where there are specific provisions of European Union (EU) law governing all aspects of its safety. As such, they operate as a kind of ‘mop-up’ set of regulations.
However, the GPSR will apply where they go further than the existing regulations in terms of the specific aspects of safety covered and the extent of the obligations on producers. The GPSR apply to all products intended for or likely to be used by consumers (even if not intended for them) that are supplied or made available; the test would be whether a consumer can purchase the product without challenge. This includes products supplied or made available to consumers for their own use in the course of a service – for example, gym equipment for use in a gym, high chairs provided for use by diners in a restaurant and trolleys for use by shoppers.
Unlike sector-specific laws the GPSR do not permit CE marking but do require that producers only supply safe products.
The following types of consumer goods would fall within the GPSR:
- children’s articles, such as cots, prams, high chairs, bunk beds
- household goods, such as crockery, cutlery, cooking utensils
- DIY tools
- furniture and soft furnishings
- candles and other ornaments
- hobby and art materials
If there are aspects of safety under GPSR that are not covered by the products’ own sector-specific regulations – such as electrical equipment – then the GPSR aspects will also apply.
The Regulations also cover products that were originally designed and intended for professional use but subsequently ‘migrate’ on to the consumer market (such as certain power tools). Where consumers can acquire professional products, they must be treated as ‘consumer goods’.
Where it is reasonably foreseeable that a professional product may find its way on to the consumer market (intended or not) suitable instructions for consumer use and warnings of any risks that are not obvious must be provided. However, where it is unlikely that the product could ever be safe for use by consumers, producers should take such steps as are reasonable and necessary to ensure the marketing and supply of the product is very strictly controlled. Labelling a product ‘for professional use only’ (or similar) is unlikely to be sufficient on its own unless, for example, it can only be purchased through a strict ‘trade only’ outlet.
Defining a safe product
A safe product is one that does not present any unnecessary risk to anyone when the product is used in a normal or reasonably foreseeable way. In assessing the safety of products, you must take account of (among other things):
- the packaging, all accompanying instructions and any other labelling
- the effect of the product on other products with which it may be foreseeably used
- the special needs of particular classes of person, especially children
A framework for assessing safety
The Regulations set out a ‘hierarchy’ that must be taken into account when the safety of a product is being assessed.
The Regulations refer to a ‘presumption of conformity’: “Where a product conforms to a voluntary national standard of the United Kingdom giving effect to a European standard … the product shall be presumed to be a safe product so far as concerns the risks and categories of risk covered by that national standard.”
These standards are referred to as ‘harmonised’, an example being European standard BS EN 14682: Safety of children’s clothing. Cords and drawstrings on children’s clothing. Specifications. They give a presumption of conformity.
Where no published standards giving a presumption of conformity exist, the safety of a product will be assessed by taking into account:
- voluntary European standards or standards drawn up in the UK
- industry codes of good practice
- the state of the art and technology
- reasonable consumer expectations concerning safety
Producers therefore need to keep abreast of such matters as they relate to their business, such as amendments to harmonised standards, and technological and safety developments
Finally, the Regulations’ “reasonable consumer expectations concerning safety” will require some elements of risk assessment and putting quality systems into place to ensure products are made in compliance with specification.
The main obligation on a producer is to supply a safe product.
As a producer you must also provide consumers with relevant information to enable them to:
- assess the risk inherent in a product throughout the period of its use (where such risks are not immediately obvious)
- take precautions against those risks
This means clear, legible durable warnings and instructions.
Producers must also allow for traceability by indicating on the product or its packaging:
- the name and address of the producer
- the product reference or, where applicable, the batch of products to which it belongs
Also, to enable you to become aware of risks the product might present you should:
- sample test marketed products
- investigate and if necessary keep a register of complaints concerning the safety of the product
- keep distributors informed of the results of such monitoring where a product presents a risk or may present a risk
As a result of the monitoring undertaken where you discover that a product you are placing on the market or have already supplied poses risks to the consumer and is unsafe, you must immediately, in writing, notify your local trading standards service of:
- that information
- the action taken to prevent risk to the consumer
- the identity of each Member State in which it has been marketed or supplied (this applies when the product is being, or has been, marketed or otherwise supplied to consumers outside the United Kingdom)
In the event of a serious risk the notification must include the following:
- information enabling a precise identification of the product or batch of products in question
- a full description of the risks that the product presents
- all available information relevant for tracing the product
- a description of the action undertaken to prevent risks to the consumer
The authorities will advise on actions aimed at removal of the risk and work with you on completing the notification.
Risk assessment is a procedure for identifying and assessing hazards, consisting of three steps:
- identify the hazard that is intrinsic and determine how serious it is (injury scenario)
- determine the probability of injury
- combine the hazard with the probability to determine risk
Using the model the resultant risk level may be ‘serious’, ‘high’, ‘medium’ and ‘low’
In order to assist in assessing the risk the European Commission has produced guidance; the method is outlined, along with associated tables, in Commission Decision 2010/15/EU.
It is an offence under the GPSR not to fulfil these obligations.
Enforcement action by the authorities
Where producers have not fulfilled their obligations under these Regulations, enforcement authorities have access to a range of measures that can be employed in removing risk to consumer safety. These are known as safety notices. They are only used when voluntary actions have not removed the risk.
All parties concerned must, whenever feasible, be given an opportunity to submit their views before the adoption of a measure.
The measure chosen will be proportionate to the seriousness of the risk.
Where there may have been a breach of the Regulations, these notices temporarily ban the placing on the market or the supply of a product while tests are undertaken and the results are awaited.
Requirement to mark / requirement to warn
These powers allow an enforcement authority to order the marking of a product with suitable warnings where it could pose risks in certain conditions, or require that specific warnings be given to certain persons considered to be at particular risk from a product (for example, young children, the elderly, etc).
Enforcement authorities can issue a withdrawal notice to permanently prevent a person from further supplying a product that is believed to be dangerous where it is already on the market (if the voluntary action taken by producers and distributors is insufficient or unsatisfactory).
Where an enforcement authority has reasonable grounds for believing that a dangerous product has already been made available to consumers and voluntary action falls short of that considered necessary and sufficient to remove the risk, a last resort (that is, no other measure available to the authority will suffice) power to serve a recall notice exists. This will require the person it is served on to take such steps as are identified in the notice to organise the return of the product from consumers.
Where a disagreement exists between the authority and the producer over whether recall is necessary, businesses may require the authority to seek a reasoned opinion on the case for recall under a scheme operated by the Chartered Institute of Arbitrators set up by the Department for Business, Energy and Industrial Strategy (BEIS) specifically for the purpose. The cost of the scheme is to be met by the business that requested its use. Enforcement authorities are expected to take account of the advice received when coming to a final decision on whether or not to serve a recall notice.
There are codes of practice on recall, which may assist in determining the nature and scope of a recall action. Consumer Product Safety in Europe: Corrective Action Guideis available from the PROSAFE website. Additionally PAS 7100: Code of practice on consumer product safety related recalls and other corrective actions – which can be downloaded for free from the BSI (British Standards Institution) website – is a guide on recalls and corrective actions and in particular gives good advice on preparing a product incident plan so when an incident happens your business is prepared.
Forfeiture & destruction
Where products are dangerous the enforcement authority may apply to the court for an order for their forfeiture and destruction. However, as an alternative to destruction the court may, on condition that any order to pay the costs and expenses of the proceedings is complied with, permit the supply of the product to a person for repair or reconditioning or for scrap.
Different obligations under the GPSR apply to retailers and wholesalers of consumer goods whose actions do not affect the safety of the goods (termed a ‘distributor’ under the Regulations).
Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment.
The information is intended for guidance only; only the courts can give you an authoritative interpretation of the law.