Product Safety - Problem Solved? PS - Not!
The law1 represents the minimum level of safety to which consumers are entitled. However, prosecutions, civil cases, recalls and complaints show that the law is frequently breached. Consumers and bone fide businesses rely on the trading standards service to ensure safety and fair dealing. TSOs2 deal with over 30,000 product safety complaints each year and there is a major product recall every week.
Figure 1: Prosecutions
A reduction in the number of prosecutions might indicate there are fewer unsafe products on the market. The two five-yearly reports presented to Parliament3 show a fall of nearly 50% during the second period. Electrical equipment, toys and furniture were the main product categories identified in the 4,793 prosecution cases. Data will not be collected until nearer the deadline for the next report for the five year period ending 31st March 2003 but it is likely that the downward trend will continue.
Enforcement
Product safety law has developed piecemeal and there is no database of product safety prosecutions or civil product liability cases4 to help quantify the problem. Also, there is no consistency in the level of enforcement of fair trading laws5. Unsafe products are likely to be uniformly distributed but there is no uniformity in the level of official action taken. TSOs plead inadequate resources and often have to let larger, better resourced authorities take action. Official action is more ad hoc than risk-based.
Unlike other legislation6, there is no requirement to notify central government about product safety cases. No recommended level of performance is laid down and with other pressing and more high profile demands on the service, product safety work has declined over the years despite evidence of a continuing problem, often from imported goods.
The author has provided 272 statements as an expert witnesses for 62 local authorities but this has fallen from an average of 25 a year over ten years to just eight statements last year. A leading laboratory has announced it can no longer provide testing facilities or statements for TSOs. Officers used to record details of some of their cases in a confidential publication7. From these records a fall in the prosecution rate from 95 cases in 1988 to only 48 reported in 1994 confirms the downward trend.
The consequences of not taking action to remove unsafe products from the market is largely hidden, for example electrical products that overheat and ignite are often destroyed in the resulting fire, sub-standard insulation may not cause a fatal electrocution and the toxic effect of lead being cumulative does not result in immediate death from poisoning. Most effects are gradual or hidden thus reducing the pressure for urgent and immediate action.
Regulation
De-regulation has been government policy for many years and yet the only safety regulations that have been assessed have been shown to work well and save lives. DTI published a code for enforcement agencies in 1993 in line with its deregulation initiative. Such relaxation may have contributed to the number of unsafe products on the market and the 2.8 million domestic accidents in 1999. Public bodies are encouraged to follow business practices despite many companies having been prosecuted for marketing unsafe products and failing to demonstrate they had taken precautions and exercised all due diligence to avoid committing such offences.
Current and future benefits of the furniture fire safety regulations8 assessed by the University of Surrey9 showed that furniture fires had fallen sharply in the ten years since the regulations were introduced. By 1997 the regulations are likely to have saved at least 710 lives. Benefits outweigh costs by £1.1bn or forty times.
Enforcement study
A benchmarking group was set up by seven major cities trading standards departments in 2000 to compare their performance10. Participants were Birmingham, Bristol, Leeds, Liverpool, Manchester, Newcastle and Sheffield. The total population is just under 4 million and the net expenditure on core trading standards functions is around £7m.
Expenditure on the service ranges from under £1 per head of population in Leeds (population 530,000) to just over £2.50 in Birmingham (population 1.014m). The total number of staff employed in Birmingham was 63 whilst 18 were employed on trading standards work in Sheffield.
Birmingham has an analytical and consultancy budget of just under £90,000 for non-food testing, including safety checks on consumer products. The other six authorities averaged only £20,000 each for similar work.
Prosecutions
The number of prosecutions recorded provides a useful performance indicator for the service. Formal cautions are issued where it is likely that a case would have succeeded but the interests of the public were considered to be best served by ensuring the company or individual concerned took appropriate action to remove or adequately reduce the risk to the public and not repeat the alleged offence.
Table 1: Prosecution cases (1999)
| Local authority | Safety | % Safety | All | Cautions |
|---|---|---|---|---|
| Birmingham | 46 | 55 | 83 | 99 |
| Bristol | 0 | 0 | 9 | 7 |
| Leeds | 14 | 17 | 81 | 6 |
| Liverpool | 5 | 2 | 264 | 26 |
| Manchester | 8 | 7 | 107 | 32 |
| Newcastle | 6 | 27 | 22 | 4 |
| Sheffield | 0 | 0 | 3 | 1 |
| Total | 79 | 14 | 569 | 175 |
Birmingham brought 83 prosecutions and issued 99 formal cautions in 1999 compared with 3 prosecutions and 1 caution in Sheffield an authority with just over half the population. Over the same period Liverpool, Leeds and Manchester brought 264, 81 and 107 prosecutions respectively. Prosecutions under safety legislation were 46, 0, 5, 14, 8, 6, and 0 respectively for the seven authorities with cases brought under the Trade Marks Act and Road Traffic Act being far more numerous.
The number of officers employed in the trading standards service in the seven core authorities during 1999 including managers was 203 of which 147 were law enforcement staff. The average number of cases brought under safety legislation per enforcement officer, excluding managerial staff and those without warrants, was 0.54 p.a. There were 569 prosecutions throughout the seven authorities making an average number of cases for all core functions, including product safety prosecutions, of 3.87 per enforcement officer in 1999 or 2.8 cases including managerial staff.
Formal cautions for alleged offences against all the legislation enforced by the service were issued on 175 occasions in the seven authorities, an average of 1.2 per enforcement officer.
Comparisons
There are approximately 1,500 TSOs and a similar number of other enforcement staff working in the 200 local authorities in Great Britain. Taking the ten-year period to 31.03.98 for which national prosecution figures are available, i.e. 4,793 cases, the rate per 100 officers for safety prosecutions is just 16 p.a. It cannot be said therefore that product safety enforcement enjoys the high priority claimed for it by the authorities.
This overall performance compares poorly against one officer's portfolio of cases that shows he investigated and brought before the courts 6.4 cases each year over a ten year period. 64 cases all relating to unsafe consumer products and with a 95% success rate. That officer has a special interest and detailed knowledge of product safety law and his authority encourages him to pursue safety cases where appropriate but his duties extend across the normal range and are not exclusively safety related.
This suggests that if other officers were similarly motivated and trained, they too would find unsafe products on sale that needed to be investigated. Such a disparity cannot be accounted for in terms of unsafe products being more widely available in one area rather than another and demonstrates again the differences referred to by the Audit Commission.
Verdict
Despite the efforts of a small number of local authorities and officers, my enquiries show that the trading standards service in general is failing in its duty to enforce the product safety provisions11 at least in an effective and uniform manner. This, together with failings by other participants in the 'product safety system' including government, coordinating bodies, product manufacturers, distributors and importers has resulted in many unsafe consumer products ending up in people's homes increasing the risk of injuries.
Research by Nottingham University may help provide a better understanding of the relationship between products and accidents. I estimate the figure to be around 750,000 injuries each year in the UK where the product involved was either unsafe, as determined by the regulations, or lacked some element of design that did not take into account good engineering practice with regard to safety.
If challenged, government and authorities may need to consider their position with regard to establishing their own due diligence defence! Persons injured by defective products may pursue a claim for negligence against them in addition to the producer and importer.
David Jenkins
Product Safety Advisor
RoSPA
Email: help@rospa.com
Opinions expressed are those of the author.
1 Consumer Protection Act 1987
2 Trading Standards Officers (including Assistant and Enforcement Officers)
3 "Consumer Safety", Report by the Secretary of State for Trade and Industry for the period 1 April 1988 - 31 March 1993, and 1 April 1993 - 31 March 1998, HMSO.
4 Minster's answer to question, 24.03.99, PQ No.981572.
5 Measure for Measure, Audit Commission, 1999 ISBN1 86240 190 X
6 s.70 Weights and Measures Act 1985
7 Enforcement Bulletin, ITSA
8 Furniture and Furnishings (Fire)(Safety) Regulations 1988 SI No.1324
9 Risks and Benefits in the Use of Flame Retardants in Consumer Products, Stevens & Mann, University of Surrey, January 1999, page 51.
10 Birmingham City Council, Core Cities Special Projects Group Benchmarking Results, 1999-2000.
11 S.27(1)(a) Consumer Protection Act 1987
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