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June 2004 - New Consumer Product Safety legislation in force.
On
the 4th May 2004 Regulations transposing the General Product
Safety Directive (95/2001) were enacted, replacing the previous
regulations dating from 1997. These Regulations have important
implications for manufacturers and distributors of consumer
products.
Directors and officers of corporate entities that are either
manufacturers or distributors of consumer products should
be aware of the risk of individual prosecution in the case
of breach of the Regulations in certain circumstances.
Some important definitions.
The Regulations contains definitions that are important to
understand when considering the scope and extent of the legal
obligations imposed:
•
A "consumer" is any living person buying products
for their personal (as distinct from business, trade or professional)
use.
• A "product" is any
product (whether new, used or reconditioned) which is intended
for use or which could be reasonably foreseen to be used by
consumers.
• A "safe product" is
a product which under normal or reasonably foreseeable conditions
of use (including duration of use), putting into service,
installing and maintaining, presents no risks (or only minimal
risks) to the health and safety of persons.
• A "dangerous product"
is a product that is not a safe product.
• A "producer" is the
manufacturer of the product (where established within the
EU), any other person representing himself as the manufacturer
(by affixing his name, trademark or other distinctive mark
on the product) and where the manufacturer is not established
within the EU, its representative or importer within the EU,
or any professional in the supply chain whose activities may
affect product safety.
Placement
of dangerous products on the market prohibited.
A producer may not place or attempt to place a dangerous product
on the market. The breach of this rule constitutes an offence.
In deciding whether
a product is dangerous the following factors will be considered:
• Product characteristics (composition,
packaging, instructions for assembly, installation and maintenance).
• Effect on other products with
which it may be used.
• Product presentation (labelling,
warnings, instructions for use and disposal).
• Categories of consumers at risk
(i.e. children or the elderly).
Products that are deemed or presumed to be safe.
Products that conform to specific Irish legislation (compatible
with EU law) laying down the relevant health and safety requirements
to be satisfied before being marketed, are deemed to be safe
for the purposes of the Regulations.
Products that are covered by relevant Irish Standards transposing
EU Standards will be presumed to be safe in respect of the
risk and risk categories covered by these standards.
In the absence of specific legislative rules or applicable
Irish Standards the Regulations lay down the requirements
to be satisfied.
Duties of producers.
A producer placing a product on the market must provide
consumers with all relevant information to enable them to
assess the risks inherent in the product or arising from normal
or reasonably foreseeable use of the product and to take appropriate
precautions.
The presence of a warning does not relieve the producer from
complying fully with the Regulations and the Directive.
Producers have a duty to take such steps as are commensurate
with the characteristics of the product, to be informed of
the risks posed, or to take all appropriate action (including
recall) to avoid such risks.
The measures to be taken by producers under the Regulations
include:
• Clear identification of the producer
and the product reference on the product or its packaging
(unless the exclusion of this information is justified).
• Carrying out sample testing of
the product where appropriate.
• Investigating complaints.
• Keeping a register of complaints,
and
• Keeping distributors informed
of such monitoring.
The Director of Consumer Affairs (Director) has the power
to make directions if these requirements are not being met.
Failure to comply with such directions will constitute an
offence.
Duties of Distributors
Distributors have a duty to act with due care to ensure that
products that they supply are safe products. Distributors
may not distribute products that they know or ought to know
to be dangerous.
Contravention of this duty of care obligation by distributors
constitutes an offence.
In addition distributors have the obligation to monitor products
which they supply and in particular to do the following;
• Inform both the producer and
consumers of any defects or risks that it becomes aware of.
• Maintain and be in a position
to produce to the Director the documentation necessary to
trace the product's origin, and
• Co-operate with the producer
or the Director in actions to avoid any risk.
If a distributor fails to comply with these obligations (without
a reasonable excuse) it could be prosecuted.
Duty to inform the Director of Consumer Affairs of risk.
Producers and distributors must immediately inform the Director
if they know (or ought to know) that a product poses a risk
to consumers or is incompatible with the safety requirements
of the Regulations.
The information to be provided must:
• Precisely identify the product
and the batch in question.
• Fully describe the risk.
• Provide all relevant information
for tracing the product, and
• Describe the actions taken.
Producers and distributors must provide every reasonable assistance
to the Director. Failure to comply with these obligations
constitutes an offence.
Prosecution and penalties.
Offences under the Regulations may be prosecuted summarily
by the Director. On summary conviction a fine not exceeding
€3,000 or three months imprisonment, or both may be imposed.
Orders for forfeiture and/or destruction of the offending
product may also be sought.
Offences by corporate entities.
If an offence is committed by a corporate entity or by any
person acting on its behalf, any director, manager, secretary
or officer found to have consented to, connived in, approved,
facilitated by any neglect the commission of the offence could
also be separately prosecuted and punished for the relevant
offence.
For further information please contact:
Thomas Simpson
E-mail: tsimpson@kilroys.ie
Telephone: +353-1-4395600
Fax: +353-1-4395601/4395602
© Kilroys Solicitors 2004
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