Lloyd's Maritime and Commercial Law Quarterly
Total recall? The future of consumer product safety regulation
Peter Cartwright *
Directive 2001/95/EC, on general product safety, obliges Member States to have procedures to require unsafe products to be recalled from consumers. The Directive was implemented in the United Kingdom by the General Product Safety Regulations 2005, which came into force on 1 October 2005. This article provides a critical examination of the UK’s new recall powers. The article considers the broader regulatory and commercial context in which the powers will operate, and the likely effect of those powers on producers, distributors, enforcement authorities, consumers and lawyers. The article argues that the introduction of a mandatory recall power is welcome, but that the environment in which it operates may make its optimal use difficult.
I. INTRODUCTION
The protection of consumers from injury by dangerous products is one of the more obvious objectives of consumer protection law. All societies with developed regimes for protecting the consumer provide sanctions for placing on the market products which are found to be unsafe.1
The latest UK law to deal with consumer product safety is found in the General Product Safety Regulations 2005 (hereafter “the Regulations”)2
which implement Directive 2001/95/EC on general product safety (hereafter “the Directive”) and came into force on 1 October 2005. The purpose of the Regulations is “to ensure that all products intended for or likely to be used by consumers under normal or reasonably foreseeable conditions are safe”.3
The Directive should have been transposed into UK law by 15 January 2004. One of the principal stumbling blocks to its timely transposition was the need to introduce into UK law a power for enforcement authorities to order recall of products from consumers. The purpose of this article is to examine the new recall powers, and to consider the effect that they are likely to have on producers, distributors, enforcement authorities, consumers and lawyers. It will be argued that, while the
* Professor of Consumer Protection Law, University of Nottingham. I am grateful to Stephen Bailey, Geraint Howells, John Miller and Steve Weatherill for comments on an earlier draft of this article. I am fully responsible for what follows.
1. There may, of course, be different approaches to the meaning of terms such as “dangerous” or “unsafe”. However, most regimes recognize that safety is a relative rather than an absolute concept and adopt some form of wording to reflect that products should be reasonably safe in the circumstances.
2. SI 2005 No. 1803. The Regulations replace the General Product Safety Regulations 1994 and the enforcement provisions of the Consumer Protection Act 1987.
3. DTI, The General Product Safety Regulations 2005: Guidance for Businesses, Consumers and Enforcement Authorities: Guidance Notes (2005).
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