- Death
- Personal Injury
- Property Damage over £275
Where these types of injury or damage are caused by faulty product compensation can be claimed from:
- The Manufacturer
- Own-brander - brand name or mark of a trader who is not the manufacturer
- The person who imported the product into the EEC
- Retailers who cannot identify the person they obtained the product from.
The test is whether the product is as safe as people would expect. All the circumstances in which the product is supplied must be taken into account, including:
- The advertising and packaging of the product
- Any instructions or warnings given
- Whether the product has been used properly
The manufacturer can defend himself if he can show that the product was as safe as possible in the light of existing scientific and technical knowledge. This is sometimes called "the state of the art defence". Unlike the protection given by the Sale of Goods Act 1979 it's not necessary to have purchased the goods to be able to claim. The goods may have been given as a gift, on loan or hire. Purchasers of faulty goods have a choice - they can either take action against the manufacturer under Product Liability or the retailer under the Sale of Goods Act 1979.
Duty to Trade Safely: This Part extends the criminal law relating to unsafe goods by creating regulations that address hazards presented by everyday consumer products. Consumer goods such as electrical equipment, toys and furniture are examples of regulated products. Regulations can also cover second-hand goods and the hiring of goods, but do not apply to goods bought in private sales, jumble sales or bring-and-buy sales.
The General Product Safety Regulations 1994 (GPSR) replaced most of the provisions of section 10 of the Consumer Protection Act. It is impossible to write regulations for every type of consumer product. The GPSR can be viewed as a 'safety net' and address the safety of all consumer goods (unless covered by specific regulations) e.g. cookware, motorcars and camping equipment are covered by these regulations.
Findings
Play is not risk-free but we can control most of the hazards children are exposed to. Toys must be safe by law but how they are used and the age of the child is important factors in preventing accidents.
According to Home Accident Surveillance System (1998) although toys are involved in over 40,000 accidents each year, their safety is only part of the problem. Many accidents involving toys occur when people trip over them and when babies play with toys intended for older children.
Since 1st of January 1990, all toys placed on the market or even given away within the community must comply with the safety requirement defined by Community legislation. A toy's conformity with these requirements is indicated by the CE mark, which must be affixed by the manufacturer or his representative. The CE mark is equivalent to a presumption that the toy has been manufactured in compliance with well-defined standards to minimise physical, mechanical, chemical, electrical and health risks.
The CE mark is a manufacturer's declaration that his product meets all the relevant legal requirements. You will find the CE mark on electrical goods, toys and cycle helmets.
The Lion Mark - used by British toy manufacturers, it shows that the toys meets British Standards.
As the manufacturer himself affixes this mark, sample checks are carried out on toys on sale, and those that do not comply with the essential safety requirements are banned or restricted. It is therefore only partially controlled and it is always possible that certain unscrupulous firms may ignore the rules so the CE mark is not a safety guarantee. The following are not covered, as they are not considered as toys, because they are not intended for children:
- Fireworks, including percussion caps
- Scale models for adult collectors
- Slings and catapults
- Christmas decorations
- Sets of darts with metallic points
- Equipment intended to be used collectively in play-grounds
- Electric ovens, irons or other functional products operated at a nominal voltage exceeding 24 volts.
- Sport equipment
- Products containing heating elements intended for use under the supervision of an adult in a teaching context
- Aquatic equipment intended to be used in deep water
- Vehicles with combustion engines
- Folk dolls
- Toy steam engines
- 'Professional' toys in public places e.g. shopping centres etc
- Bicycles for sport or for travel on the public highway
- Puzzles with more than 500 pieces or without picture
- Video toys operated at a nominal voltage exceeding 24 volts
- Air guns and air pistols
- Babies dummies
- Reproduction of and decorative dolls and other similar articles for adult collectors
- Real firearms
- Fashion jewellery for children
To minimise risk for children, the manufacturer or distributor must indicate on the packaging or on the instructions any information capable of reducing a foreseeable risk, and he must evaluate certain risks and note a minimum age e.g. 'Not suitable for children under 3 years.' If there is a risk involved with handling, the precautions that need to be taken, and the first aid provisions must be stated e.g. ' Warning: to be used under the direct supervision of an adult'.
Analyses
The Toys (Safety) Regulations 1995 deal with the safety of toys. Toys are defined in the regulations as products or materials designed for play by children under 14. These regulations apply to both new and second-hand toys and affect manufacturers, importers, retailers, hirers and other suppliers of toys. The Regulations require that new toys must:
- satisfy essential safety requirements
- have the CE marking, which shows that the requirements of the regulations have been met
- come with any necessary warnings and precautionary information about the toy
- have the name and address of the person or organisation taking responsibility for the safety of the toy
Second-hand toys must meet safety requirements but not the other requirements of the regulations.
Supplying toys that do not meet safety requirements may result in a fine (up to £5000) and/or a prison term. Some toys are subject to additional regulations, while other products that might be considered as toys, for example toy steam engines, may not be subject to these Regulations because they do not fit the description of toys under these regulations and are covered by the General Product Safety Regulations 1994.
Gaps Remaining in Toy Safety
Despite improvements in toy regulations and labelling requirements, parents should remain vigilant. Consumers looking for toys still face an industry full of safety loopholes; once toys fall through, it is difficult to remove them from the market.
Loopholes in Toy Safety Regulation
Many companies do not adequately comply with the specifics of the law and allow potentially dangerous toys to be produced, marketed and sold. Toy manufacturers and importers continue to sell toys for children under three that violate the small parts regulations and pose choking hazards to children. According to EU statistic(2002), 71% of toy accidents recalled as choking or aspiration hazards.
Even when companies do comply with the laws, the current regulations do not address all of the choking hazards posed by toys. Since 1980, at least 12 children have choked to death on balls ranging in size between 1.25" and 1.75" in diameter, the respective sizes of the old and new small ball test. While the choking test cylinder eliminates most objects small enough to enter a child's lower throat and air passages, it does not eliminate all objects that can block the airway by obstructing the mouth and upper throat. Children continue to choke on toys that do not technically violate the GPSR regulation.
Not all manufacturers are in full compliance with the GPSR warning label requirements. Many older toys are still on toy shelves, and neither Congress nor the GPSR requires manufacturers to update old packaging with new warnings.
The GPSR often lacks the resources to adequately monitor the thousands of new toy products introduced nationally.
Conclusions
Ineffective Toy Recalls
In 2001, Researchers found a toy identical to toys already recalled by the GPSR. While GPSR has been aggressive over the past years in recalling unsafe toys, very few consumers who purchase recalled products - fewer than 20 percent -- ultimately find out about the recall. Even though GPSR occasionally announces recalls publicly through national television, national toy stores and paediatrician’s offices, many consumers still do not find out about recalled toys.
Recalls are made more difficult by the fact that many consumers have difficulty determining whether they actually own the product being recalled. The failure of toy manufacturers to label their products - not just the packaging - with contact information or even the name of the manufacturer makes identifying recalled products difficult if not impossible. Manufacturers, on the other hand, rarely have any way of contacting consumers who have purchased their products. Very few consumers fill out "warranty" cards provided with some products, because the questions asked are so clearly intended for marketing purposes.
To more effectively communicate recalls to consumers, GPSR should mandate the creation of consumer registration cards that could be used to directly contact consumers about recall and safety actions taken by the GPSR and or the manufacturer of the product. Consumers must be guaranteed that their contact information be used solely for safety purposes and not for marketing. This petition also requests a regulation to require the name and contact information of the manufacturer, including an address and phone number or phone number and web address, on every product intended for children.
References
Home Accident Surveillance System 22nd Annual report.London: Department of Trade and Industry, (2000).
Toys (Safety) Regulations 1995 , London: The Stationery Office,(1995).
EEC Council directive (3 May 1998) concerning the safety of toys.
A CONSUMERS GUIDE: TOY SAFETY internet source are produced by Salford City Council; accessed 28 March 2003;
Trading Standards :toy safety internet source are produced by London Borough of Waltham Forest trading standard ; accessed 28 March 2003;
Bibliography
Oughton and Lowry (1997), Textbook on CONSUMER LAW; Blackstone Press P.183-206
Robert Lowe, Geoffrey Woodroffe (1995); CONSUMER LAW AND PRACTICE; (Fourth Edition); Sweet & Maxwell P267-287
Malcolm Leder and Peter Shears (1996); CONSUMER LAW (4th EDITION); M&E PITMAN PUBISHING; p183-193
Lockett Egan (1995); Unfair Terms in Consumer Agreements; WILEY, p.34-36
Handouts from the class
