DTI reveals draft Regulations to implement the General Product Safety Directive

The DTI issued draft Regulations to implement the General Product Safety Directive 2001/95/EC on 21 December 2004, and the consultation period runs until 31 March 2005. The Regulations may, therefore, come into force in the early Summer 2005. The draft Regulations and consultation document can be found by clicking here. The DTI lists 25 specific points for consultation. Producers and distributors of consumer products are urged to consider the points raised. Various trade associations will be coordinating responses, especially the CBI's Consumer Affairs Panel.

The draft Regulations generally transpose the provisions of the Directive without any particular surprises. However, various important policy decisions have been taken in the context of the UK's internal regime. The following are the most significant:

The obligation on producers and distributors to notify the authorities if they have placed a dangerous consumer product on the market, the DTI has anticipated the difficulty of multiple notifications to the 200-odd UK Trading Standards Departments (TSDs), and the authorities in all other Member States where the product may be marketed, and provided that notification may be given to "an authority" in the UK. It is expected that this will be the business' Home Authority (although the Home Authority principle has not been specified in the draft Regulations). Existing communication links between TSDs will then operate for notification amongst themselves. Where notification must be given to other Member States, the DTI will assume the responsibility for this, but the notifying business must identify the other States where the product is on the market.. These provisions represent sensible, pragmatic solutions that will considerably assist business.

• Authorities will have power to prosecute for offences committed outside their area, thereby enabling a single authority to take the lead on enforcing a matter and avoiding multiple prosecutions (reversing the "Brighton and Hove" decision).
• Unlike the 1994 GPS Regulations, that apply the enforcement provisions of the Consumer Protection Act 1987, the new regime will have self-contained enforcement provisions. The powers will be familiar but easier to find: requirements to mark, requirements to warn, suspension notices, withdrawal notices, recall notices. Although not stated, this will clear the way for reform/repeal of s10 of the CPA in due course. Various detailed provisions need to be considered here.
• There is an explicit requirement that enforcement authorities take due account of the precautionary principle, but also that they shall act in a manner proportional to the seriousness of the risk.
• Environmental Health Officers will have enforcement jurisdiction over the safety of products made available to consumers in the course of a service in work premises, such as hotels.
• The DTI have responded to industry's concerns that the new power for authorities to order the recall of a product may be misused by inexperienced TSDs. Whilst rejecting the CBI's proposal that there should be a national enforcement authority, the selected approach is for an advisory process operated by the Chartered Institute of Arbitrators. If the person on whom a recall notice is served so requires, the authority must seek advice from a person appointed by that Institute (probably a retired judge). The advice will not be binding but will be taken into account by the authority, and will provide a useful mechanism for obtaining a swift and less expensive decision that through a subsequent court challenge, particularly in difficult circumstances, such as when there is a genuine disagreement over whether a product is or is not dangerous.
• Although the costs of the advisory process are stated to be paid by the business that requests it, the Draft Regulations go beyond the Directive in specifying that an authority will be liable to pay compensation to a business where a suspension, recall or withdrawal notice has been issued where there has been no contravention or the product is not dangerous.
• The DTI expressly says that it expects that UK business will continue to act responsibly and recall unsafe products voluntarily where it is necessary to do so, and that the recall power will therefore be rarely used. It calls for business to identify Codes of Good Practice that will play an important role in recall and in the assessment of conformity with the general safety requirement. Business should, therefore, consider the revision or development of such Codes.
• Penalties for the principal offences of placing dangerous products on the market and of breaching a safety notice are to be increased. The offence should be triable either way, with a maximum fine on indictment of £20,000 and or imprisonment up to 12 months. Offences tried summarily will carry a maximum fine of £5,000 and/or imprisonment of up to 3 months, as under the 1994 Regulations.
• The period for bringing summary proceedings is extended from the normal 6 months to 12 months, recognising the complexity of cases involving the safety of products and the time required to adequately prepare prosecution cases. There is no time limit for bringing proceedings in indictment.
• Complications within devolution legislation mean that Scottish ministers are yet to decide whether fish products, seeds, animal feed stuffs, fertilisers and pesticides are covered by GPSD in Scotland.
• All antiques and second-hand products are included under the GPSD regime, rather than, as under the Directive, just those products for which the supplier informs the person to whom he gives them that hey are antique or second-hand.
• The draft Regulations follow the Directive's requirement on an authority to make available to the public such information as is available to it on the nature of the risk, product identification, and measures taken, in relation to product risks. This is stated not to apply to any information that is covered by professional secrecy, unless the circumstances require disclosure to protect the public. The UK has decided not to try to clarify the tricky inter-relation between these provisions, and what is meant by "professional secrecy" or "required circumstances", which are matters left to the courts.