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 retailer or wholesaler of consumer goods whose actions do not affect the safety of the goods (this is termed a ‘distributor’ under the Regulations), you will have certain obligations. These obligations also apply to businesses that hire out or supply second-hand goods or supply goods as part of a service.
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 distributors. 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 distributors 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’.
As a distributor if you supply a ‘professional use only’ product to a consumer you will be responsible for its safety and if the product could never be safe for use by consumers you should take such steps as are reasonable and necessary to ensure the marketing and supply of the product is very strictly controlled.
The main obligation on a distributor is to supply a safe product.
In particular you must act with due care to help ensure only safe products are supplied and must not supply products that, as a professional, you know (or should have presumed on the basis of information in your possession) to be dangerous. For example, if a product has been subject to a recall you must not supply any you may still have in stock.
As a distributor you must also provide consumers with relevant information to enable them to:
- assess any risk posed by the product throughout the period of its use (where such risks are not immediately obvious)
- take precautions against those risks
This means passing on all the warnings and instructions that accompany the product.
A further obligation on distributors is to be able to show traceability of the products you supply. In practice the documentation that is required to support Inland Revenue and VAT requirements should be sufficient, as long as they show from whom the goods were purchased and, if not for retail, to whom they were sold. Such records have to be kept for a minimum of six years, which should cover your GPSR obligations.
Where you discover (perhaps as a result of a consumer complaint) that a product you have supplied poses risks to the consumer and is unsafe you must immediately notify your supplier of the issue. In some instances – for example, where it is not easy to contact your supplier – you must then inform your local trading standards service.
You must cooperate with the enforcement authorities at their request. This includes the provision of information relating to the product, the nature of the risk, the product’s supply and marketing, and also in taking appropriate action to remove the risk from consumers.
It is an offence under the GPSR not to fulfil these obligations.
Enforcement action by the authorities
Where distributors 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:
‘Suspension notices’. 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.
‘Withdrawal notices’. 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 is insufficient or unsatisfactory).
If you affect the safety of the goods by any action – such as removing the goods from their packaging, assembling products, repairing products or not passing on instructions and warnings – then you become the ‘producer’ of the goods. In this case you will have to comply with the producer obligations under the GPSR.
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.