"RoSPA calls for a review of product safety law"
The role of RoSPA's Product Safety Adviser is to promote safe products and encourage their safe use. Product safety is important to all RoSPA's departments of course, but much of my work relates to ordinary, everyday, household products.
RoSPA has warned about baby walkers, bath seats, table-mounted chairs, candles, lighters, plugs and many other dangerous products and helped many Trading Standards Officers around the country with their inquiries into unsafe products.
The primary issue in product safety, seen from our vantage point, is the need for better product safety management. This applies across the product safety system including manufacturing and the training of designers for example, right through to the role of government and to local authority Trading Standards Officers who have the onerous duty of ensuring that the products we buy meet the level of safety required by law.
Key Issues
In addition to the fundamental management problem, the Key Issues which currently concern RoSPA and on which action can be taken now, are:
- the need to develop safer products; and
- the need for better information on unsafe products (including product recalls).
Developing safer products has to start with the producer but they can be encouraged by the effective enforcement of the law and powers do exist to stimulate such action.
Manufacturers
Like the official monitoring of consumer products by making test purchases, accident prevention is proactive not reactive. RoSPA would prefer to see hazards eliminated at the product design stage wherever possible. The key issue for manufacturers is to identify the hazards in their products and assess the risks. This should be done when designing the product, to eliminate the hazards or, if that's not possible, to reduce any risks to an acceptable level.
As far as manufacturers are concerned, managing product safety should be integrated with quality assurance, health and safety at work and their more recent environmental responsibilities.
Civil v. criminal law
The law lays down the minimum level of safety which products must satisfy and standards are a vital element in interpreting those requirements. Manufacturers have to understand and observe the law to avoid being prosecuted or having to pay damages. The latter could be far more expensive but relatively few product liability cases are pursued.
There are fundamental differences between the criminal and civil law which we feel are not fully appreciated by manufacturers. This has resulted in them being sued under product liability law and to consumers being exposed to unsafe products, a no-win situation.
Civil law provides a remedy for someone injured by a defective product, whilst the criminal law seeks to punish the person who put the unsafe product on the market, quite different objectives.
This places very different demands on the product with regard to its safety. The present system does not clearly specify the level of safety which must be satisfied. But it is the more demanding civil law test which is the level of safety producers should satisfy in our opinion. It may seem strange that the same product may be responsible for causing an injury for which its manufacturer has to pay damages, but selling it may not be illegal, at least not a provable offence.
Standards
The detailed interpretation of what the law requires is provided by standards. If the standard is deficient, perhaps because of manufacturers' commercial interests in not addressing hazards adequately for cost or competition reasons, the product made to that standard could still injure someone.
Excessive surface temperatures generated by appliances is an example of this as well as the failure over many years to address the hazard of noise in the toy safety standard. It should be remembered that compliance with a standard did not prevent Whirlpool being convicted in the Gloucester Trading Standards case and this decision was confirmed on appeal by the High Court.
A product is not "safe" just because it complies with a standard. But in RoSPA's view a product is unsafe and therefore illegal if it fails to satisfy the appropriate standard. This approach is recognised in the Electrical Equipment (Safety) Regulations 1994, Regulation 5 of which requires equipment to be "safe" and "constructed in accordance with..." which can only be interpreted as "constructed in accordance with a harmonised standard ".
Those who draft standards therefore must be made more aware that if the specification doesn't address safety adequately the whole process loses credibility. A producer complying with a standard can still be successfully sued for damages if a defect in his product has caused injury. There should be greater effort made to ensure that standards reflect the legal requirements adequately, in fairness most of them do.
Suspension Notices
The criminal law is often found wanting when it comes to dealing with unsafe products speedily and effectively. Those who put dangerous products on the market must of course be brought to book by Trading Standards and the vital monitoring proactive work should be more widely recognised.
Powers exist under the Consumer Protection Act for enforcement authorities to suspend the sale of products they suspect of being unsafe by the use of Suspension Notices. However, there are problems for local authorities in following this course of action. Firstly there is the threat of having to pay compensation if the products turn out to be safe. Also, if the results of tests are made public it may jeopardise any criminal investigation into establishing who committed the offence of supplying the products. The over-riding rule must be the safety of the public even at the expense of losing a prosecution case.
Compensation
The threat of local enforcement authorities having to pay compensation is perhaps not as serious as it might appear. Difficult decisions have to be taken when confronted with a suspect product which may meet the current safety standard as to whether or not to suspend its sale. Budgets are limited and compensation orders may exceed resources with disastrous consequences for the department and its staff.
However it is important to note that under Section 14(7) the authority is only liable to pay compensation if:
a. there has been no contravention of a safety provision; and
b. any neglect or default on the part of that person has brought about such action.
If there has been a contravention, no compensation is payable. But even if a contravention of a safety provision cannot be established by the authority who had grounds to suspect the safety of a product, it still leaves an obligation on that person's part to show that he had, what could be construed, as a due diligence defence or at least a quality control system in place and had acted responsibly.
Failure to carry out any independent expert checks on products from the Far East for example should convince a court that he had brought about his own misfortune. I would certainly support such a claim in defence of official action.
Baby walkers
Baby walkers which failed the safety requirements featured widely in the media recently. Prosecutions are still pending but the results of the tests would not have been made public had a confidential report not been leaked to the press. No doubt the defence lawyers will claim that their clients will not now have a fair hearing or that some other breach of procedure has been committed.
These unsafe babywalkers, like many other products which fail official safety checks, are still being sold and used. Over 4,000 serious accidents happen every year in the UK with babywalkers alone. It is highly likely that many of the three million home accidents every year involve products which fail the safety tests.
Recommendation
When an enforcement officer has obtained an authoritative report showing significant safety faults in a product, backed up if necessary by an independent expert assessment of the risks involved, those products should be suspended from sale immediately.
Government
Many products are still in use and on sale long after official tests have established that they are unsafe. The product safety system should ensure that people are not exposed to unsafe products any longer than is absolutely necessary. The system is therefore failing in this fundamental aim.
RoSPA is calling on Government to review the law on product safety and the way it operates and in particular enable local authorities to use Suspension Notices more frequently when their officers discover dangerous products on the market and remove the threat of having to pay compensation, other than in justifiable cases.
David Jenkins
Product Safety Adviser
RoSPA
Email: help@rospa.com
4 June 1998
This article was first published in Trading Standards Review.
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