This guidance is for England, Scotland & Wales
If you are a wholesaler or retailer the steady rise in counterfeit and illegal products available in the UK makes purchasing products increasingly complex.
The implications of purchasing or supplying products that are unsafe are far reaching and in some cases the results can be fatal. With this in mind how can you be sure that products are what they say they are and do what they say they can do?
Many consumer protection laws include ‘strict liability’ offences where it does not matter that the person accused did not intend to break the law. In order to create a balance of fairness specific due diligence defences are normally included in strict liability consumer protection laws.
To use this defence a person must prove that they took all reasonable precautions and exercised all due diligence to avoid an offence being committed.
Due diligence principles
These broad principles have been drawn from past views of the courts on what due diligence involves:
- sitting back and doing nothing is unlikely to enable a person to create a defence
- the nature of the necessary action will depend upon the individual circumstances
- taking reasonable steps or precautions involves setting up a system of control that has regard to the risks involved
- all reasonable steps or precautions should be taken; the defence fails where there was a reasonable step or precaution that could have been taken but was not
- what is reasonable depends on the particular circumstances; one factor will be size of the business concerned
- the control system must cover all aspects of the business affected by the legislation
- due diligence means ensuring the proper operation of the system
- the operation of the system should be kept under review and be amended as necessary
Any due diligence system should be written down so that it can be followed and any issues raised should be coordinated in one department or section, or by one person who has overall responsibility for the system.
A formal quality management system, though only mandatory where you manufacture products such as gas appliances, electrical appliances, cosmetics or personal protective equipment, may be of value in supporting a defence of due diligence. Further advice on quality management systems is available from the Association of British Certification Bodies.
To reduce the risk of purchasing unsafe products always buy from a reputable source and follow the golden rule: if it looks too good to be true, take extra care.
There is a legal requirement for certain products to be marked with this when placed on the market in the European Union (EU). CE marking is a key indicator of a product’s compliance with EU legislation and enables the free movement of products within the European market. By affixing the CE mark on a product a manufacturer is declaring conformity with all of the legal requirements to achieve CE marking. This may mean that there are more than one set of legal requirements that apply to a product.
CE marking may be achieved in two different ways:
- examination by notified conformity assessment bodies. This means that the manufacturer must use a notified body (such as BSI – the British Standards Institution) to test or review the product to enable the application of the CE mark
- self-declaration. This does not require any independent testing or review and it is therefore the manufacturer’s own statement that they believe the product meets the relevant regulations
It is the manufacturer’s responsibility to carry out the conformity assessment, to set up the technical file (including test reports and risk assessments), to issue the EC declaration of conformity and to affix the CE mark. There is no visual difference between a mandatory or self-declared CE mark and so a small business or consumer cannot tell whether the product has been tested or not. Therefore distributors must take care and must verify the presence of both the CE mark and the necessary supporting documentation.
If a product requires a CE mark but does not have one, it is illegal to place it on the market in any of the EU member states, including the UK. However, do remember that not all products sold in the EU need to bear CE marking, so distributors must have a basic knowledge of the legal requirements. You should know what products must bear the CE mark and the accompanying documents required and should be able to identify products that are clearly not in compliance.
More information about CE marking is available on the GOV.UK website.
So how do you, as a distributor, know that the CE mark has been affixed correctly or that the item is safe to be sold in Europe? A formal test report is the best way to verify compliance to a safety standard. There are three basic types of report available:
- an in-house report, which means the product was tested by the manufacturer
- a third party report, which means the product was tested by someone else
- a third party test report issued by an accredited laboratory
All three of these are valid methods of demonstrating safety. However, the accredited test report gives a far higher degree of confidence that the tests have been carried out correctly by competent laboratory staff.
Schemes such as the Kitemark certification can demonstrate that the product has met the applicable standard and that the manufacturer has effective quality control processes in place. In addition both the factory and the product are audited on an ongoing basis to ensure the products that have the mark are safe.
To meet your due diligence requirements:
- buy from a reputable supplier and always obtain an invoice
- make sure the product / packaging is marked with the name and address of the manufacturer or importer
- keep all invoices
- ask to see proof that the product is safe (a test certificate or declaration of conformity)
- inform your supplier about any safety complaints you receive about the product
The information is intended for guidance only; only the courts can give you an authoritative interpretation of the law.