General Product Safety Regulations 2005

The General Product Safety Regulations 2005 is a 2005 Statutory Instrument of the Parliament of the United Kingdom that demands that "No producer shall [supply or] place a [consumer] product on the market unless the product is a safe product" (reg.5(1)) and provides broad enforcement powers. The regulations implemented European Union directive 2001/95/EC and revoked the General Product Safety Regulations 1994^[1] (reg.1(2)). The regulations also repealed section 10 of the Consumer Protection Act 1987 which had previously imposed a more limited general safety requirement (reg.46(2)).

It is a crime to breach the general safety requirement. On summary conviction in the Magistrates' Court, an offender can be sentenced to up to three months' imprisonment and the statutory maximum fine. On conviction on indictment in the Crown Court, an offender can be sentenced to 12 months' imprisonment and a £20,000 fine (s.20(1)). An enforcement authority can recover the full costs of enforcement from an offender (s.27).

It is a defence that all due diligence was exercised in the supply of the product (reg.29(1)). Were a person wishes to rely on the defence that supply of a dangerous product was due to the default of someone else or reliance on information from someone else, he must serve notice on the court seven days before the hearing (s.29(2)-(3)).

The general safety requirement

The regulations require that no producer shall (reg.5):

• Place a product on the market;
• Offer or agree to place a product on the market or expose or possess a product for placing on the market;
• Offer or agree to supply a product or expose or possess a product for supply;
• Supply a product;

— unless the product is a safe product.

A producer must provide appropriate information to consumers (art.7). Either a producer or distributor must inform an enforcement authority if they become aware that they have supplied a dangerous product (reg.9). The authority must inform the Secretary of State, as of 2008 the Secretary of State for Business, Enterprise and Regulatory Reform, who must inform the European Commission (regs.33–34)

A distributor must exercise due care in helping to ensure safety through (reg.8):

• Not selling dangerous products;
• Providing information to purchasers;
• Maintaining traceability;
• Co-operating with enforcement authorities.

Producer

A producer is (s.2):

• The manufacturer of a product who is established in the EU;
• A person established in the EU, holding himself out as the manufacturer, for example by selling private label products under his own brand ("own-branders");
• A person established in the EU who reconditions the product;
• A person established in the EU who represents a manufacturer from outside the EU;
• Where there is no EU representative of the manufacturer, the importer into the EU;
• Other professionals in the supply chain who affect the safety of the product.

A supply chain professional whose activity does not affect product safety is a distributor (reg.2).

Product

The regulations apply to products supplied commercially, whether or not for consideration, that are (reg.2):

• Consumer products; or
• Likely, under reasonably foreseeable conditions, to be used by consumers;

— including products that are:

• New, used or reconditioned;
• Made available for consumer for their own use during providing a service, for example hire of bowling shoes.

The regulations do not apply to products used by service providers themselves, especially means of transport (reg.2), nor do they apply to second hand goods supplied with the clear intention that they will be repaired or reconditioned before use (reg.4). They do not apply to products where there are specific provisions as to the product's safety in the law of the European Union (reg.3).

Safe product

A safe product is a product which, under normal or reasonably foreseeable conditions of use including (reg.2):

• Duration of use;
• Putting into service;
• Installation; and
• Maintenance requirements;

— does not present any risk or only the minimum risks compatible with the product's use, considered to be acceptable and consistent with a high level of protection for the safety and health of persons.

Relevant factors are (reg.2):

• Characteristics of the product, including:
  • Composition;
  • Packaging; and
  • Instructions for assembly, installation and maintenance;
• Effect on other products, where it is reasonably foreseeable that it will be used with other products;
• Presentation, labelling, warnings, instructions for use and disposal and any other indication or information regarding the product; and
• Categories of consumers at risk when using the product, in particular children and the elderly;

— and conformance to or compliance with (reg.6(3)):

• A voluntary UK standard giving effect to a European standard, but not a European standard published in the Official Journal of the European Union;
• Other UK standards;
• Recommendations of the European Commission setting guidelines on product safety assessment;
• Product safety codes of good practice in the sector concerned;
• The state of the art and technology; and
• Reasonable consumer expectations concerning safety.

A product that is not a safe product is a dangerous product. A product is not dangerous solely because other products are safer or it was feasible to make the product itself safer (reg.2).

Products deemed safe by conformity

Products are deemed safe products where they conform to:

• UK safety legislation where there is no EU legislation (reg.6(1)); or
• A voluntary UK standard that gives effect to a European standard that itself has been published in the Official Journal (reg.6(2)).

Antiques

A supplier has a defence where (reg.30):

• The product is second hand goods;
• The product is an antique;
• The supplier sells the product, rather than supplying it for use on some other basis; and
• The supplier informs the purchaser that the product is an antique.

Enforcement

Enforcement authorities

Enforcement authorities that have a duty to enforce the regulations are (reg.10):

Enforcement authorities must act proportionately and encourage voluntary action but may take urgent action in the case of a serious risk (reg.10(5)). They have the power to make test purchases (reg.21) and powers of entry and search (regs.22-23, 25-27). Authorities must undertake market surveillance (reg.36) and make information available to the public (reg.39) It is a crime to obstruct an officer of an enforcement authority, punishable on summary conviction to a fine of up to level 5 on the standard scale (reg.24(1)).

Safety notices

An enforcement authority may serve a safety notice being a:

• Suspension notice preventing marketing or sale of the goods while safety evaluations, checks and controls and performed (reg.11);
• Requirement to mark to ensure an adequate safety marking (reg.12);
• Requirement to warn to issue a warning about a dangerous product to past and future consumers;
• Withdrawal notice to withdraw a dangerous product from the market and, possibly, to warn past consumers (reg.14);
• Recall notice to recall a dangerous product (reg.15).

The Secretary of State can require information or a product sample from a producer and it is a crime not to comply unless the information is protected by legal professional privilege or the right to silence (reg.43).

Appeal against a notice can be made to a Magistrates' Court in England and Wales, and Northern Ireland, and to a Sheriff in Scotland (reg.17).

Breach of a safety notice is a crime and, on summary conviction in the Magistrates' Court, an offender can be sentenced to up to three months' imprisonment and the statutory maximum fine. On conviction on indictment in the Crown Court, an offender can be sentenced to 12 months' imprisonment and a £20,000 fine (s.20(4)).

Forfeiture

In the case of prosecution for a breach of the regulations or an appeal against a safety notice in England and Wales and Northern Ireland, the enforcement authority may apply to the court for forfeiture of the product. Appeal is to the Crown Court (England and Wales) or County Court (Northern Ireland) (reg.18). In Scotland, application must be made to the Procurator fiscal with appeal to the High Court of Justiciary (reg.19).

Further decisions under the Directive

Art.13 of the directive gives the European Commission the power to issue further decisions with which the Secretary of State must comply (reg.35).

References

Bibliography

• Consumer & Competition Policy Directorate (September 2005). "The General Product Safety Regulations 2005 - Notification guidance for producers and distributors" (PDF). Department of Trade and Industry. Retrieved 2008-04-18. , URN 05/1457
• Department of Trade and Industry (June 2005). "Government Response to the Consultation on proposals to implement Directive 2001/95/EC on general product safety (GPSD)" (PDF). Retrieved 2008-04-18. 
• — (August 2005). "The General Product Safety Regulation 2005 - Guidance for businesses, consumers and enforcement authorities" (PDF). Retrieved 2008-04-18. 
• Office of Public Sector Information (2005). "General Product Safety Regulations 2005 - explanatory notes". The Stationery Office. Retrieved 2008-04-18.