A Guide to General Product Safety Obligations

Under EU-wide product safety rules there is a legal obligation on the producers, importers and distributors of all products to ensure the products are safe. In this article we examine where responsibility for safety lies and how it is enforced.

Introduction
Do the general product safety rules apply when there are specific standards?
What is a safe product?
What are the safety responsibilities of importers, distributors and retailers?
How are safety obligations enforced?
Who is responsible for personal injuries caused by goods?
Do importers have additional liability risks after Brexit?
Further information

Introduction

Approximately half of all goods are not subject to specific legal standards or requirements. That means that there are no specific requirements that the goods must meet and be certified as meeting. However, manufacturers, distributors and retailers have duties and responsibilities for all products which they market and sell. There is a legal obligation on the producers, importers and distributors of all products to ensure the products are safe, under the EU-wide product safety rules.

In common with the product-specific rules, the general EU safety rules remain as part of Northern Ireland law. Almost identical requirements apply in Great Britain, which has retained almost all of the EU rules.

Do the general product safety rules apply when there are specific standards?

Both sets of rules will usually apply. In most cases, compliance with the product-specific requirement will, in effect, comply with the general product safety rules. Sometimes, the specific product requirements deal only with some aspects of product safety. In these cases, the general public safety requirements will apply to the other features or aspects of the products.

What is a safe product?

A producer or retailer may not sell an unsafe product. A "safe product" is one which, under normal or reasonably foreseeable conditions of use including duration and, where applicable, putting into service, installation and maintenance requirements, does not present any risk or only the minimum risks compatible with the product's use, considered to be acceptable and consistent with a high level of protection for the safety and health of persons.

Account is taken of a number of factors, including the particular characteristics of the product, packaging, instructions, effect on other products, labelling, warnings, instructions for use and other information and the type of consumers involved, e.g., children.

There may be non-binding national or international standards or codes of good practice in the sector concerned. In many cases, compliance with these, non-legally binding standards is presumed sufficient to ensure compliance with the general product safety rules.

The producer is obliged to provide consumers with information to enable them to assess the risks inherent in the product through the normal and foreseeable period of use, where such risks are not immediately obvious without adequate warnings. Producers must adopt measures to enable them to monitor the risks in the market, including labelling with the producer's identity, details of the product reference and/ or batch number. They must undertake sample testing of products, must usually keep a register of complaints and keep distributors informed.

What are the safety responsibilities of importers, distributors and retailers?

Importers and distributors must take care to ensure that the products they sell are safe. They must not supply a product that they know, or it is reasonable to presume, based on information held, is dangerous.

Where there is no manufacturer based in the EU and it has no representative within the EU, the importer has the obligations of the producer.

Importers and distributors must monitor products and inform the producer, regulator and consumers of defects or risks of which it becomes aware. They must keep the documentation necessary to trace the product and cooperate with the regulator in relation to actions taken to avoid any risk.

How are safety obligations enforced?

The legal obligations of producers, importers, distributors and retailers under the general product safety rules can be enforced by prosecution or by enforcement notices with penalties.

Distributors and retailers are liable for the proper functioning and safety of products, to their customers and to consumer end-users under ordinary consumer protection and civil liability rules. Retailers can be sued in court for compensation. They will usually have to replace goods when they do not conform with the implied terms in relation to quality.

Who is responsible for personal injuries caused by goods?

Producers, importers, distributors and retailers may be liable for personal injury caused by goods. The exact position will depend on principles of negligence and product liability in the circumstances. Responsibility for personal injury can be a significant risk because very extensive liability can arise when a person suffers serious personal injury. Product liability insurance may be desirable. Specialist advice should be taken depending on the type of product sold and the particular role of the business within the supply chain.

EU product liability law which has also been retained as part of UK law, makes the producer potentially liable for personal injury and property damage caused by a defective product, without proof of fault. Persons who are harmed by an unsafe product may take legal action for compensation, even if they did not buy it themselves. The injured person may be able to sue the retailer, manufacturer and/or the EU importer.

Products can be deemed unsafe or defective in circumstances which may be unexpected. Apparently innocuous products may carry risks when used in particular foreseeable ways by users. Depending on the risks, the producer or EU importer may be obliged to give warnings in relation to the safe installation, use, maintenance, cleaning and disposal of the product.

Do importers have additional liability risks after Brexit?

Brexit may cause an importer based in Ireland who buys from a GB-based supplier to become the "EU" importer of the goods, with an increased risk of liability for injuries caused by them.
Persons who import products from outside the EU must carry out research into the potential hazards involved. New testing may be required where it is not reasonable to rely on the manufacturer's testing.

Importers, as well as distributors and retailers, must take an active approach to safety risks. They must pass safety information to the consumer. They must help monitor product safety and assist the authorities and others with investigating complaints.