When manufacturing and selling a product there are various responsibilities that need to be taken into account as the law in this area was created to protect the consumer and not the manufacturer.

 

Firstly it places the requirement for every product in the “open market” to bear the EC marking, which do not constitute a pass safety or quality mark. This serves as an indication for the responsible authorities that the specific goods are intended for sale within the Community as well as a proof of compliance of the manufacturer with the safety requirements. Even though, manufacturers who might use the EC mark as a proof without complying are liable and legal proceedings will be taken against them.

Secondly, information and risk warnings must be provided by the manufacturer in respect of the:

(i)        Age suitability of a toy

(ii)        Instructions, frequency of maintenance and inspection on activity toys

(iii)      Need for supervision

(iv)      Need of protective clothing or equipment

       

Further compliance with the British Standards (5665) will need to be achieved where the manufacturer is targeting the UK market.

         ii. Specific Requirements for soft toys

          According to the European, and British standards and the Toy Safety Regulations 1995 it is essential for the manufacturer of a soft toy to comply with the following requirements:

1. All toys must meet hygiene and cleanliness requirements to prevent the risk of infection, sickness and contamination. So when manufacturing a soft toy the use of clean new materials would be advisable.
2. Facial features (if they are hard) must resist a pull of 10kg (just over 20lbs or ten packs of sugar) for at least 10 seconds. Eyes and noses with safety locking washers could also be used.
3. Filling materials should be designed for stuffing toys and should not be                flammable (they must comply with BSEN 71–1:1998 Part 2). Knitted toys though present a particular problem. It would appear that most mixtures, with high wool content, will pass the flammability test when used over the proper filling material.
4. Must be sufficiently strong to withstand the stresses normally subjected to.
5. Must be designed and constructed so that any edges, protrusions, cords, fastening or movable parts do not inflict injury.
6. Toys and component parts intended for use by children under thirty – six months shall be of such dimension to prevent their being swallowed or inhaled.

       In P&M Suppliers (Essex) Ltd v. Walsall MBC (1994),easily removable clumps of hair from a “shaggy dog” toy imported in the EC Market constituted a breach of the Consumer Protection Act 1987 s.10 (2). P&M successfully questioned the definition of what is regarded as a “reasonably safe” soft toy within section 10 (2) (b) of the CPA 1987. This quashed the previous decision by the MBC authority, creating doubt and calling for review of the definition.

7. Soft toys and their packaging must not present a strangulation or suffocation risk.
8. Toys used in water and capable of supporting a child shall be designed to minimize risk from loss of buoyancy.
9. The use of a list of chemicals in the production process should satisfy the prescribed quantity levels. The Commission Decision 1999/815/EC of 7 December 1999 prohibits to introduce on the market toys intended to be placed in the mouth by children under the age of three years, made  of soft PVC containing one or more substances of phthalates

      It would therefore be advisable for manufacturers to keep sufficient records of materials used, production methods and test reports, to show that the toy is made in accordance with approved safety requirements.

4. THE COMPETENT AUTHORITY & THE CONSUMER PROTECTION ACT 1987

The concept of a “Competent Authority” which is defined in the 1996 Regulation comes up as an objective safeguard. It is a “body responsible for requiring and receiving information, granting and refusing requests for confidentiality pursuant”.

In the United Kingdom this authority embodies the Secretary of the State and approved enforcement authorities.

The Consumer Protection Act (CPA) 1987 is the main statute in the United Kingdom regarding product safety. Its intention rests in protecting consumers from products which do not meet the required standards.

Specifically, Part II of the Act strictly prohibits unsafe products to enter the market under which the Secretary of the State has the power to create safety regulations concerning the manufacturing and supplying process of the goods, in order to establish a high standard of safe products for consumers.

In addition, the Secretary of the State has the flexibility of acting fast against manufactures who do not comply with these regulations. In such a case there are two ways he can act. By serving:

1. A “prohibition notice”     or      2.  A “notice to warn”.

Where the Secretary of the State suspects a product of being unsafe, serving a “prohibition notice” would forbid the manufacturer from supplying or offering to supply that product in the market. This can cease production up to a period of six months till the manufacturer complies with the Regulations of the Act. In case finally the product is found to already comply with the regulations, the manufacturer will have to be compensated by the competent authority.

Alternatively serving a “notice to warn”, obliges the manufacturer to warn the public of any products which the Secretary of the State suspect to be unsafe. Proceeds to warn are the manufacturer’s own expense.  Failure to comply can trigger criminal proceedings against him, the importer or whoever is authorised to supply the specific product(s) in the market.

In an attempt to fill in the gaps of the CPA Act 1987 within the toy safety area, we have seen the introduction of the Toys (Safety) Regulations 1995

         

        Under the 1995 regulations the manufacturer must make sure that all the available percussions have been taken to avoid risk or injury of a child bearing in mind their normal behaviour.  This can be achieved by conforming to the standard regulations of the Member State and by self-certification. Self-certification is when the manufacturer follow the construction of the toy from an already EC type-examined model.

         

It should not be disregarded that apart from the pre mentioned primary sources of legislation there exist also areas of influence, from a list of secondary legislation, that similarly need to be taken into consideration.

5. GROUNDS FOR CLAIMS

The area of manufacturing liability is governed by five different principles which need to be examined in further detail.

i. The Contract of Sale

A consumer purchasing a product that is found not to comply with the safety regulations has the right to bring an action against the manufacturer for a breach of a term of his contract of sale.

ii. Collateral contract or guarantee

        In the case where the consumer does not buy the product directly from the manufacturer, nevertheless a collateral contract applies. This was established in Carlill v. Carbolic Smoke Ball Co. (1983) where the consumer could bring a claim against the manufacturer, even though a contract between the two parties did not exist. Furthermore, according to the s.5 of the Unfair Contract Terms Act 1997, a clause which might have been included in the manufacturer or supplier guarantee does not exclude any liability when:

1. The goods are supplied for private use or consumption.
2. Prove defective whilst in “consumer use”
3. The manufacturer or the distributor was not either the person who made the sale of the product to the consumer.

iii. Negligence

        In the leading case of Donoghue v. Stevenson (1932) it was established that a consumer is able to sue for damages if he can prove that he suffered damage as a result of the manufacturer negligence. The burden of proof falls to the manufacturer to prove that he took all the appropriate measures to protect the consumer from suffering such damage.

        Furthermore, if a consumer brings an action for compensation and the retailer is in the first ring of the chain, he claims the money from the retailer and the retailer from the manufacturer as a form of indemnity. This was establish by the case of Lambert v. Lewis 1982 where it was stated that in an occasion where there is economic loss the seller can go up the chain of distribution and claim from the manufacturer the costs of the loss.

iv. Product Liability

        The concept of product liability has been developed under the Consumer Protection Act 1987 Part I. According to the Act a consumer has the right to claim damages against a manufacturer even when the person who finally used the product was not the one who bought it. The only requirement is that the value of the damage exceeds the £275 limit. We need to note also that a consumer claiming such damage under part I of the CPA Act 1987 do not alter or remove any other rights for him.

v. Basis of the claim

        The European Union Directive on product liability which was implemented by the part I s.2 of the Consumer Protection Act 1987, provides the consumer with a new remedy against negligent manufacturers. Therefore, a consumer does not have to prove anymore that a duty of care existed between him and the manufacturer on the ground of foreseeability.

There are four things though the plaintiff must establish.

1. The product contained a defect:

Under s.3 (1) of the CPA Act 1987, a product can is considered defective “if the safety of the product is not such as persons generally are entitled to expect”. Deciding whether a product is defective requires taking into account (a) “the manner in which and the purpose for which the product has been marketed”, (b) “what might reasonably be expected to be done with or in relation to the product and, (c) “the time when the product was supplied by its producer”.

2. The damage caused by the defect and not from the consumer’s negligence by not following the manufacturer instructions.
3. The defendant must be the manufacturer, the own-brander or the importer.
4. Under s.5 where the claimant suffered damage.

6. Defences

i. General Defences

If the defendant wants to prevent the possibility of being sued, he has to take all reasonable steps and exercise all due care in order to avoid personal injuries or any other lack of safety during the production.. In order to succeed, he has to impose contractual obligations to the supplier, as well as making frequent tests on the products he supplies and not only on samples.

The manufacturer cannot be liable if he can establish the following defences:

1. The defective soft toy product must comply with the Toy (Safety) Regulations 1995.
2. The manufacturer or seller did not supply the soft toy products e.g. it was stolen.
3. The supply did not occur in the course of business and no profit was expected from the production.
4. The defect of the product appeared after its supply e.g. if the retailer not in the specified conditions stocks a series of creams that go bad and this generates a defect, the manufacturer could escape liability.
5. The manufacturer is only part of the chain of production e.g. producing certain ingredients of the final product; he cannot be liable for the design of the final product or for the instructions concerning the larger product.
6. The manufacturer can prove that at the time the production took place, technology was not advanced enough to detect the defect.
7. The manufacturer can establish that the customer has made an unreasonable use of the product stating the following arguments:

• The soft toy product did not present any defect and was as safe as people were entitled to expect. This is even more the case if they were warnings on the container or packaging.
• The claimant’s injury is due to the way the he is using the product and not to the product itself e.g. if somebody is using oil massage to cook.
• The claimant’s carelessness for its own safety is the real cause of his illness.

It will be difficult to predict the approach that the Court will take in the above situations. However, if one of the first two will apply, the defendant will not be liable. But, if the third argument is found, the damages awarded would be reduced proportion of what would be awarded for such an illness in the absence of the contributory negligence.

ii. Exclusion of liability and limitations

It is stated very clearly that the manufacture of the product will not be able to rely on any exclusions clauses or limitations to escape liability. However, there are two rules on limitations that can be applied to claim for product liability under the CPA:

• Proceedings must start within three year when the damage appeared or was acknowledge by the claimant.
• When the supply was made more than 10 years ago either by the manufacturer or importer or brand-owner, no proceedings can be started.

iii. Contravention

If a responsible person does not respect the regulations 8, 9 and 10 concerning the product information, he can be guilty of an offence of contravention, and can be liable for conviction not exceeds three months.

iv. Enforcement

Local authorities are responsible for the general safety requirements, ingredient restrictions and marking packaging. If there is a suspicion of offence, the Trading Standard Officer can ask you to produce records and may at any time seize and detain goods or records as evidences in court proceedings.

 The Local Authority Trading Standards Officers have powers concerning the false or misleading products claims. Trade description law covers claims about both the product composition and function. It is considered as an offence to refuse to give assistance or information requested intentionally or not.

v. Penalties

In general, penalties for contravention of the regulations are:

- Summary conviction

- Imprisonment for not more than 6 months or fine not exceeding £5000, or both.      

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