Out-Law Analysis 5 min. read

UK product safety recall guidance emphasises forward planning

ANALYSIS: The UK government's new product safety agency has published guidance to help companies deal with safety issues and recalls. Though the guidance is practical,  helpful and easy to follow, smaller companies may struggle to comply with all its demands.

There is also a question about whether Trading Standards will be given the resources to assist businesses as envisaged by the code.

The Office for Product Safety and Standards (OPSS) was launched in January to advise and co-ordinate action on product safety for non-food goods, such as 'white' goods, electrical items, toys, clothes and cosmetics. It will not be responsible for products with existing regulators, such as vehicles, medicines, medical devices and workplace equipment.

Along with the British Standards Institute (BSI) it has created a code of practice for product recalls. The code is designed to help companies manage product recalls or other appropriate corrective actions, and usefully encourages them to think ahead and prepare plans to deal with product issues. But the demands of the code will be too onerous for many small and medium sized companies, and the code does not take account of companies' sensitivities about sharing information.

Many of the code's recommendations are highly practical. The code takes the regulatory requirements of the General Product Safety Regulations, the UK implementation of the EU General Product Safety Directive, and turns them into a series of practical recommendations and checklists.

For instance on traceability, the code recommends positioning markings such as batch numbers in a place they can be easily accessed. This recommendation is simple, practical and would solve a problem I have seen in practice, where batch numbers on a low cost electrical product were not accessible by consumers who could not therefore check and report. Instead qualified electricians had to be used identify which products were defective, which was time consuming and expensive.

The code emphasises planning ahead to ensure that if an issue arises it is identified early and can be dealt with effectively and promptly. This minimises both the risk to consumers and impact on a business.

One of the key planks of the code is its proposal that companies prepare a Product Safety Incident Plan (PSIP) before any issues arise.

For some large businesses which are experienced with running recalls, having such a plan is a matter of course. But many businesses I have dealt with have not had a recall before, have deemed their quality procedures to be good and even when we suggest it have deemed such a plan unnecessary. The recommendation should  hopefully encourage businesses to make that initial investment into planning, which reaps such rewards when an issue does arise. But expecting all product companies to have such a plan, or at least one as detailed as proposed in the code, might be an unrealistic ambition.

The code gives detailed practical advice on what should go in the plan and provides a check list of who should be involved in drafting such a plan. It says that the plan needs board-level commitment and should involve people from design; supply chain management; servicing, and legal compliance. Responsibilities for putting the plan into action should be clearly allocated.

The code says that the plan should include:

  • practical measures to enhance traceability, and assessment of any parts likely to play a safety role, so they can also be traced;
  • allocation of responsibility for capturing customer contact information and suggesting practical means of maximising this, including setting out how the owner of the plan intends to collect information on compliance or faults with the product once placed on the market, setting out potential sources of information;
  • provision for notification of enforcement authorities if the company is aware that a product is unsafe and highlighting the duty to notify, suggesting best practice is for early sharing of information of any emerging issue;
  • detail on how an incident will be investigated and a risk assessment carried out, including identifying relevant individuals or functions and any required external expertise. It highlights the need for risk assessment to underpin selected corrective action. Risk assessment tools, including the EU Rapex methodology, are set out in an annex;
  • detail on how, on whose authority and within what timescales decisions on corrective actions will be made and how and to whom these will be communicated internally and externally;
  • the content of recall notices and how they will be communicated and how the recall will be resourced, including call-handling and the taking back of defective products. The code provides useful example templates.

The code encourages an open and collaborative approach between businesses and regulators and as part of this proposes that the regulator can assist with the plan. Moreover when a potential risk is identified, it is proposed that the regulator can also provide support with the risk assessment and with implementation of the corrective actions, including such useful things as ensuring the cooperation of supply chain partners where necessary or assisting in getting messages out to enforcement colleagues. It also suggests that regulators should get trained in risk assessment techniques. OPSS is in the process or rolling out a training scheme for Trading Standards.

The code's advice is sensible and helpful, but it will not easily apply to all businesses involved in product supply. The resourcing involved in producing a plan to the level suggested may be too much for a small developing business. For instance the idea that the business should draft template recall notices ahead of an issue arising seems somewhat ambitious for a small business.

There could also be an issue around timing. The code says that once a possible risk is identified notification to the regulator should not be delayed on the basis that a full risk assessment has not been completed. Whilst a collaborative and open approach is to be commended, this requires a sensible position to be adopted by the regulator with no pressure for over-precipitous action. I have certainly had quite a number of cases where the risk assessment outcome has resulted in very different corrective action, such as a great narrowing of likely affected batches, than may have been recommended initially. Will the regulators be prepared to wait for the outcome of the risk assessment?

OPSS and stakeholders at the launch recognise that a remaining and substantial issue is that companies will still face significant practical difficulties communicating a recall to consumers  - direct contact is seen as being most effective but difficulties remain with capturing customer contact information, which retailers are often not keen to share with suppliers, or getting consumers to register their appliances.

This therefore remains on OPSS's agenda. Suggested approaches include registering appliances without being asked to opt in or out of signing up to receive marketing material.

Businesses will also wonder whether regulators are going to be able to provide the kind of support outlined in the code. Its recommendations for businesses are generally framed as 'should' whilst the ones for the regulators are framed as 'can' or 'might'.

Will the local authorities and trading standards be given the resources to have these conversations with businesses to help them prepare for when things go wrong? And will they have the resources to provide the outlined assistance and advice when a risk arises?

The code's recommendations are mostly practical and useful. But they are not freely available – the code itself is not online and copies must be bought from the BSI shop at a cost of £90. If the government genuinely wants all product companies to adopt its code of practice it should consider making it freely available.

Louise Nahon is a product risk and liability specialist at Pinsent Masons, the law firm behind Out-Law.com

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