Out-Law Guide 11 min. read
18 Oct 2023, 2:57 pm
The most significant UK provisions are the 1987 Consumer Protection Act (CPA) and the 2005 General Product Safety Regulations (GPSR).
The CPA establishes the UK's strict liability regime for damage caused by defective products. It also implemented the EU's Product Liability Directive (85/374/EEC) into UK law. Part 2 of the CPA also enables the Secretary of State to make safety regulations in relation to a broad range of matters.
The GPSR implemented the EU's 2001 General Product Safety Directive (GPSD) into UK law. It is the cornerstone of UK product safety regulation.
While some product safety obligations can be limited and controlled contractually, compliance with the regulatory requirements is mandatory. Failure can lead to product recall, reputational damage, fines and even imprisonment. Businesses in scope must take note and ensure they are able to meet their obligations.
There is now a range of EU sectoral regulation which lays down product safety and other requirements for certain products, which can include both consumer products and products for use at work. We discuss the sectoral duties below.
The GPSD provides a general safety framework that must be observed in relation to consumer products which are not covered by the sectoral regulations. It was also designed to supplement and fill gaps which the sector-specific legislation did not address.
The GPSD will be replaced in the EU by the General Product Safety Regulation ((EU 2023/988) from 13 December 2024. UK manufacturers supplying goods on the EU market will need to comply with the new rules from that date. As the UK is no longer in the EU, the General Product Safety Regulation will not apply in the UK. However, it is likely to affect businesses and other economic actors making products available on the EU market.
The GPSR provides a broad umbrella of regulation to ensure that consumer products, when marketed, are safe. The regulations create a series of obligations on producers and distributors to help to ensure that this goal is achieved and to reduce the risk to consumers from unsafe products. They gives wide powers to Trading Standards departments and other authorities to ensure that unsafe products do not remain on the market and, if need be, are recalled.
The GPSR creates a safety requirement for consumer products where there are no specific safety regulations covering that kind of product or where the regulations that do exist do not address particular risks. Therefore, they are an important reference point for many producers or distributors of products which are likely to end up in consumer use.
Only those products which are intended for consumers or which are likely, under reasonably foreseeable conditions, to be used by consumers even if they were not actually intended for them are within the scope of the GPSR.
The GPSR imposes a general safety requirement on producers that products placed on the market must be safe.
A 'safe' product is one which, under normal or reasonably foreseeable conditions of use, does not present any risk or only the minimum risks compatible with the product's use and which are considered to be acceptable and consistent with a high level of protection for the safety and health of persons. 'Conditions of use' in this context also covers duration of use, putting into service, installation and maintenance.
As an example, an inherently dangerous product such as a power saw designed for use at home can nonetheless be regarded as a safe product provide it presents the minimum risk compatible with a high level of protection. The producer must therefore ensure that adequate instructions are provided and that appropriate safety devices, such as guarding, are fitted.
In many cases, the fact that a product is unsafe will be obvious. However, in some cases, the mode of use which the consumer has made of the product may be highly relevant to whether the product was in fact unsafe. The fact that there are other products capable of providing a higher degree of safety is not by itself a reason to regard a product as an unsafe product.
The regulations provide further guidance about factors to be taken into account when deciding whether a product is unsafe, including:
Where a product complies with a recognised national or international standard it is presumed safe, insofar as the risks covered by that national standard are concerned.
Despite apparent conformity with provisions or recognised safety standards designed to ensure a product's safety, it remains open to an enforcement authority to take action in relation to that product where there is evidence that it is dangerous.
The GPSR defines a producer as the manufacturer or brander of the product, if based in the UK. If based outside of the UK, then the manufacturer's agent or representative in the UK will be regarded as the producer. If there is no UK agent or representative, then the producer will be the first importer into the UK.
'Producer' is also used to describe any other professional in the supply chain whose actions may affect the safety of the product. So, for example, someone who stores the product, modifies the product or incorporates it into another product would be a producer for these purposes if those activities affect the product's safety.
A 'distributor' means a professional in the supply chain whose activity does not affect the safety properties of a product.
It is an offence for a producer to place on the market, or to offer or agree to supply or place on the market, a product which is not safe. The fact that the producer did not know the product was unsafe is irrelevant. It is an offence for a distributor to supply or offer or agree to supply a product which that distributor knows or should have presumed, based on information they have and as a professional, is a dangerous product.
Failure to comply may result in a fine and/or imprisonment. In some circumstances, that fine may be unlimited with up to 12 months imprisonment. Where the offence is committed by a company, its directors and senior managers may also be exposed to prosecution where it can be shown that the offence was committed with their consent or connivance or that their neglect allowed the action or failure leading to the offence.
Where a producer or a distributor knows that a product it has placed on the market is not safe, it must notify an enforcement authority immediately of that fact and of the action taken to prevent risk to the consumer. This notification obligation does not apply where the safety concern relates to isolated circumstances or products.
If the risk is a serious one requiring rapid action, the notification must also include:
Failing to comply with these duties is an offence, which again exposes both the company and any director or manager who consented or connived in, or whose neglect allowed, the action or failure leading to the offence. The penalty is up to three months imprisonment and an unlimited fine.
A producer is obliged to provide consumers with the relevant information allowing them to assess and take precautions against the risks inherent in a product where such risks are not immediately obvious without adequate warnings.
A producer must also adopt measures appropriate to allow it to be informed of the risks which the products might pose and to take appropriate action including, where necessary to avoid such risks, withdrawal, adequately and effectively warning consumers as to the risks or, as a last resort, recall of the product.
Failure to provide this information or to put in place these measures may lead to prosecution and, on conviction, an unlimited fine and imprisonment for up to three months.
There appears to be no specific criminal penalty in the event that the producer does not in fact take steps such as issuing warnings or ordering a recall. However, a producer that did not take appropriate warning or recall action would undoubtedly increase the risk of prosecution for placing an unsafe product on the market, as well as being likely to face action from the authorities to force any preventative action which they regarded as appropriate. This is particularly likely where there is a serious risk posed by a product. In addition, if a producer was aware that a product it had placed on the market was seriously unsafe but took no action to prevent the risk, and the product subsequently led to the death of a consumer, there would be a risk of exposure for both the producer and its responsible directors to manslaughter prosecutions.
The regulations do, however, lay down certain mandatory requirements on producers designed to ensure they remain fully informed and can take suitable and appropriate risk avoidance action. These carry criminal sanctions and essential set out what is generally accepted as best practice for a product manufacturer. They include:
These final three requirements apply where, and to the extent that it is, reasonable to do so.
This information, the more detailed the better, allows the producer and others within the supply chain to keep to a minimum the volume of product which could become the subject of a recall, rectification or warning programme. This has the very real advantage of minimising the substantial costs incurred in recall or rectification, allowing them to deal only with product which is actually affected by a problem rather than having to remove from the market much larger bodies of product simply because the issue cannot be narrowed down to the offending items or batch.
It is also good practice to ensure that information fed back from the field about product problems is fully investigated and conclusions drawn so that if it is necessary to take action to prevent risk this can be done at the earliest opportunity. Again, allowing a developing product defect to go on will in many cases mean that a larger quantity of affected product is put into the marketplace, increasing both regulatory and financial exposure.
There is also a related obligation to inform distributors of products which do or may present a risk so that appropriate action can be taken.
Distributors are also obliged, within the limits of their activities, to take part in the monitoring of the safety of products which they are placing on the market by:
Failure to comply with these elements is an offence and exposes both the distributor and any director or manager who consented or connived in, or whose neglect allowed, the action or failure leading to the offence. The penalty is up to three months imprisonment and an unlimited fine.
The enforcement authorities, which are typically Trading Standards departments, have a variety of powers to obtain information and, in particular, to issue safety notices.
A safety notice can require that a producer or distributor:
There are appeal procedures available to a party aggrieved by a safety notice. If a safety notice is served it is essential to take specialist legal advice rapidly, as failure to comply with a safety notice is itself an offence. If prosecuted for such failure, it is a defence to show that all reasonable steps were taken and all due diligence exercised to avoid committing the offence. Where a company is convicted, its senior managers may also be guilty of the offence where it can be shown to have been committed with their consent or connivance or attributed to their neglect.
Where a producer or distributor is or becomes aware that a product which it has placed on the market is unsafe, they must immediately inform the Office for Product Safety and Standards (OPSS) of this and of the action taken to prevent risk to the consumer. Where there is a serious risk to safety, the OPSS must also be given a precise identification of the product, a full description of the risk, all available information to allow tracing of the product and a full description of action taken to protect consumers.
Determining the action to be taken on discovery that a product it has placed on the market is unsafe is a matter which requires a risk assessment and can be one of fine judgement. It needs to be borne in mind that if the enforcement authorities are not satisfied with the action which is proposed, they may take things into their own hands and impose their decision via a safety notice.
Many product types including toys, cosmetics, gas appliances, construction products, low voltage electrical products and medical devices have their own sector specific safety regulations. For them, the GPSR will have limited application.
Unlike the GPSR, these sector specific safety regulations generally apply to products for use at work or in commercial premises as well as to consumer products. They tend to address more specific risks.
The sectoral legislation contains its own obligations to take corrective measures, including withdrawal and recall as necessary, to ensure sample testing and being informed of complaints, and to inform the relevant enforcement authorities in the event of risk. Accordingly, the GPSR requirements are replaced by these provisions.