Product safety: legal tips

The following six-point plan offers guidance to help you comply with your legal responsibilities regarding consumer protection and product safety.

We’ve all seen the results of high-profile product recalls when a product turns out to be unsafe; as well as placing a huge financial burden on a business it is also a criminal offence to supply unsafe goods. Manufacturers carry most of the responsibility for making sure their products are safe. However, distributors also have duties regarding the safety of products they handle.

All business supplying goods must comply with the Consumer Protection Act 1987 and the General Product Safety Regulations 2005. The Sale of Goods Act 1979 also includes terms within all contracts for sale of goods by a business stating that those goods are of a satisfactory quality (including that they are safe) and that they are fit for the purpose they are being used for. There are also many specific legal requirements which may apply, depending on the sector in which your business operates or the types of goods you manufacture, supply or retail.

1. Review your procedures

Carry out a regular review of your management procedures, to check that all stages of production, including design, manufacture, presentation and marketing, help to ensure that only safe products reach customers.

As a manufacturer you should take appropriate steps to keep yourself informed of the risks your products may present. These steps may include testing samples of the products on the market, and investigating and keeping records of complaints about safety. However, these are not mandatory and what is appropriate will depend on the product, consumers of the product and the nature of your business. Having reviewed the risks, you should take any necessary action, which may include withdrawing the product from distribution.

In view of these requirements, it's recommended that you ask for guidance from your local authority trading standards office before placing a new product on the market. You can find your local point of contact on the Trading Standards Institute website.

2. Check specific safety standards

 As a manufacturer you should check whether there are any specific regulations setting mandatory requirements for your products, and whether there are any published or proposed safety standards for those products. Consider to what extent your products meet or could be made to meet the standards. It's very important to supply only products that are safe and to do everything you can to ensure that a product remains safe throughout its reasonably foreseeable period of use. You could consider introducing quality assurance at each stage of the production process so that product safety is monitored right from the start.

3. Give information to customers

Manufacturers and distributors must provide all relevant information and warnings to consumers to enable them to assess the risks a product presents throughout its normal or reasonably foreseeable period of use where those risks are not immediately obvious to the user. This should include information on the precautions that the consumer should take in order to avoid those risks and use the product safely, for example, wearing protective gloves when handling a household cleaning product.

4. Notify and co-operate with the authorities

If you discover that you have placed an unsafe product on the market, or distributed an unsafe product, you must notify your local authority trading standards department. Tell them what has happened and what action you have taken to remove the risks to consumers. It's important to co-operate with the enforcement authorities at their request and you should give them details of:

• how the product can be precisely identified and traced;
• the risks presented by the product; and
• the actions that have been taken to remove the risks from the market.

You must also transmit the notification to the enforcement authorities of all the European Union countries, plus Iceland, Norway and Lichtenstein, in which you believe the product has been marketed.

In practice, if you're a distributor you'll want to make the manufacturer aware of the problems before you make a notification, in case it relates only to isolated products or circumstances, as this could make notification unnecessary. However, you must make a notification once you are aware of the problem if you understand that no one else in the supply chain is doing so.

5. Review your contracts

It is important to review your contractual arrangements with your suppliers, customers or others with whom your business has relevant contracts. Although a business cannot contract out of any liability under the Consumer Protection Act 1987 or the Sale of Goods Act 1979, you could, for example, try to get an indemnity from others in the event of liability under those Acts.

Distributors must act with due care to help ensure that the products they supply are safe. They mustn't supply anything which, as a professional, they know, or should have presumed on the basis of the information they have, to be dangerous.

6. Check your business records

Decide whether your business records are adequate, bearing in mind:

• the working life of the products in question;
• the ten year potential liability for product liability claims, and
• the possible need to identify suppliers of defective products to the business in defending a product liability action. This is particularly relevant for 'own branders', distributors who apply their own branding to products produced by another business.

You must keep records to enable the origin of unsafe products to be traced.
Also, do assess whether your business insurance cover is adequate, and includes appropriate product liability insurance.

About the author

Richard Manley is a member of the Riverview Solicitors’ team. He has particular experience in company and commercial law, advising on a range of matters, including drafting complex terms and conditions, drafting and reviewing various contracts, completing the sale and purchase of a variety of business organisations, undertaking share restructures, providing company law advice, advising on website and e-commerce legal compliance and intellectual property protection.

For free access to more detailed information about this subject matter, other legislation and a wide range of legal forms, templates and guidance, please register on the Riverview Law website: www.riverviewlaw.com and you can follow them on Twitter @RiverviewLawSME.