If we are seeking to protect consumers further from unsafe products the this area need tightening. This defence was lobbied hard for by big businesses, especially farmers and drug companies during the passing of both the Directive and the Act. It could be argued that its inclusion as a defence owes more to the governments wish to ensure British industry is not weakened by higher costs than by their desire to protect the consumer.
It is interesting to note that several EU states do not include the defence in the legislation they put in place to enact the Directive. There are also limitation periods, the right to bring a case is lost after 10 years from the date on which the defendant supplied the product, and proceedings must begin with three years of discovering the defect, but this can be overridden by the court in personal injury claims. Part II of the Consumer Protection Act gives the Secretary of State the power to make safety regulations governing the making and supplying of goods.
It also enables the Secretary of State to take quick action against the marketing of unsafe good via prohibition notices and a notice to warn. Part II also makes it an offence for a trader to supply consumer goods which fail to comply with a general safety requirement, it also entitles a consumer to bring an action for damages against any trader in respect of damages or loss suffered by the consumer because of an infringement by the trader of safety regulations.
The DTI can make regulations under Act, and the General Product Safety Regulations 1994 is relevant to all supplies of consumer products. The 1994 Regulations, by reg 5, disapply s 10 of the Act to the extent that it imposes a general safety requirement for products to be placed on the market by producers or sold or offered for sale or possessed by distributors. Section 7 of the 1994 Regulations is the principal provision.
It states that no product shall be placed on the market unless the product is a 'safe product', the definition being any 'product which under normal or reasonably foreseeable conditions of use, including duration, does not present any risk, or only minimal risks compatible with the product's use, considered as acceptable and consistent with a high level of protection for the safety and health of persons. '
In determining whether or not a product is 'safe', the following factors are taken into account: the characteristics of the product, such as its composition, packaging and instructions for assembly and maintenance; the effect on other products, where it is reasonably foreseeable that the product will be used on other products; the presentation of the product, the labelling, any instructions for its use and disposal and any other indication or information provided by the producer; and the categories of consumers at serious risk when using the product, in particular children.
The prohibition on putting unsafe products on the market applies to producers not distributors. If the manufacturer is outside the EU and has no representative established in the EU, the importer of the product is treated as the producer, otherwise the manufacturer's representative is the producer. Producers must provide consumers with relevant information so that they may assess the risks inherent in a product. Producers must also make sure they 'take measures' to enable them to assess the risks products present and to enable the producer to withdraw a product from the market to avoid the risks.
These information requirements are only 'within the limits' of the producer's activity. It is not clear what this phrase means and it may prove useful wording for those seeking to avoid liability under this provision where they have not informed consumers of risks properly. This is clearly an area which need tightening up if consumers are to be better protected. Distributors are required, by reg 9, to act with due care in order to 'help' ensure compliance with the producer's.
A distributor must not supply products which he knows, or should have presumed on the basis of information in his possession and as a professional, are dangerous products. The regulations contain a defence of due diligence where someone has taken all reasonable steps and exercised all due diligence to avoid committing an offence. Local Authority trading standards departments have responsibility for day-to-day enforcement of the Regulations.
Supplying an unsafe product can result in a fine of up to 5,000 for each offence, and/or a term of imprisonment of up to three months. If we look at how these provisions to protect the consumer against unsafe products could be improved I feel that the enforcement is far too weak. The DTI whitepaper11 states that there are only 1,500 trading standards officers in the UK, and that recruitment is a problem. My own experience of working with Trading Standards via my advisor role at the Luton Citizens Advice Bureaux is that they are overstretched and often wait until they have a dossier of evidence before acting.
Additionally, as conceded in the DTI whitepaper, the level of criminal sanctions, and the risk of civil action by consumers, do not deter determined rogues who continue to carry on unlawful conduct where the profits outweigh the occasional judicial setback and where they can live with an adverse effect on their reputation. This problem is compounded by the time it takes to enforce some of the existing legislative provisions. This enables the rogue trader to keep ahead of the authorities.
It is also clear that consumer knowledge of the law and their rights to enforce is poor. The DTI whitepaper states that two thirds don't understand their rights as a consumer, and over half don't know where to go for help and advice. In conclusion there are a range of remedies available for the users of defective products, coming from the common law of both contract and tort, and from statutory provisions, again both in contract and tort. In contract protection is offered by the Sale of Goods Act 1979 and the Contracts (Rights of Third Parties) Act 1999.
Protection in the tort of negligence arose with the a Donoghue case where it was established that a duty was owed by manufacturers to the end consumer of their products. Statutory provisions to give consumers protection are founded in the ECC Directive of 1985, given effect by the Consumer Protection Act 1987. This Act along with the General Product Safety Regulations 1994 outlines who can sue, who can be sued, what products are covered, what defect and damage is covered, what must be proved and what defences are available.
For each of the three remedies I have suggested improvements that could be made. These suggestions revolved around changing the privity rule, reversing the need to prove fault and imposing strict liability on manufacturers, taking decisions out of the courts hands, improving the design defects test, tightening the within limits requirements for product information, removing or tightening the development risk defence, strengthening the role of Trading Standards, imposing bigger penalties on rogue traders and educating the public of their rights in consumer transactions. Any of these suggestions I feel would improve current protection to consumers for unsafe goods.
1. Dobson, Paul. Sale of Goods and Consumer Credit, 6th Edition, Sweet & Maxwell. 2. Winfield and Jolowicz on Tort, 16th Edition, Sweet & Maxwell. 3. Singleton, Susan. Safe Products. New Law Journal (1994) Vol 144, No 6673, p1634. 4. Slapper, Gary. Dangerous Product Litigation. New Law Journal (1998) Vol 148, No 6830, p345.