General Product Safety
The European Communities (General Product Safety) Regulations give effect to Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety. The Regulations require that consumer products placed on the market are safe and obliges producers to place only safe products on the market.
The Regulations specify the duties of producers and distributors and make it an offence to place dangerous products on the market. The Competition and Consumer Protection Commission is given authority to ensure that products placed on the market are safe and that producers and distributors of such products comply with their obligations under the regulations and the Directive.
Key Definitions I
A “consumer” means any natural person who, in respect of a product covered by the Directive, is acting for purposes which are outside his or her trade, business or profession.
A “producer” means—
- the manufacturer of a product, when the manufacturer is established in the Community, and any other person presenting himself or herself as the manufacturer by affixing to the product his or her name, trademark or other distinctive mark, or the person who reconditions the product,
- the manufacturer’s representative, when the manufacturer is not established in the Community or if there is no representative established in the Community, the importer of the product, or
- other professionals in the supply chain, in so far as their activities may affect the safety properties of the product;
A distributor” means any professional in the supply chain whose activity does not affect the safety properties of a product;
Key Definitions II
A “product” means any product, including in the context of providing a service, which is intended for consumers or likely, under reasonably foreseeable conditions, to be used by consumers even if not intended for them, and is supplied or made available, whether for consideration or not, in the course of a commercial activity and whether new, used or reconditioned;
A “dangerous product” means any product which is not a safe product. A “safe product” means any product which, under normal or reasonably foreseeable conditions of use including duration and, where applicable, 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.
A “serious risk” means any serious risk, including those the effects of which are not immediate, requiring rapid interventions by the CCPC;
The Regulations apply to all products. They do not apply to a product subject to specific safety requirements imposed by EU legislation Where a product is subject to specific safety requirements imposed by such legislation, the general regulations apply only to the aspects and risks or categories of risk not covered by such regulation or legislation
The regulations do not apply to second-hand products supplied as antiques or as products to be repaired or reconditioned prior to being used, provided that the supplier of such product clearly informs the person to whom he or she supplies the product that such repair or reconditioning is necessary prior to use of the product.
Prohibition on placing dangerous products on the market.
A producer must not place or attempt to place on the market a product unless it is a safe product. In determining the safety of a product, the following is taken into consideration:
- the characteristics of the product, including its composition, packaging, instructions for assembly and, where applicable, for installation and maintenance;
- the effect on other products, where it is reasonably foreseeable that it will be used with other products;
- the presentation of the product, the labelling, any warnings and instructions for its use and disposal and any other indication or information regarding the product; and
- the categories of consumers at risk when using the product, in particular children and the elderly.
However, the feasibility of obtaining higher levels of safety or the availability of other products presenting a lesser degree of risk does not constitute grounds for considering a product to be dangerous.
A producer who contravenes the regulations is guilty of an offence.
Products deemed or presumed safe in certain circumstances.
A product is deemed to be a safe product if it conforms with any specific rules of the law of the State, drawn up in conformity with the EU Treaty, laying down the health and safety requirements which the product must satisfy in order to be marketed.
A product is presumed safe as far as the risk and risk categories covered by the relevant Irish Standards are concerned when it conforms to voluntary Irish Standards transposing European standards, the references of which have been published by the Commission in the Official Journal of the European Communities in accordance with the Directive.
Where no specific rules as those above exist, or where no voluntary Irish Standard transposing European standards have been adopted, the conformity of a product to the general safety requirement is assessed by taking into account the following elements in particular, where they exist:
- voluntary Irish Standards transposing relevant European standards;
- other Irish Standard Specifications;
- Commission recommendations setting guidelines on product safety assessment;
- product safety codes of good practice in force in the sector concerned;
- the state of the art and technology; and
- reasonable consumer expectations concerning safety.
Notwithstanding the conformity of a product with the general safety requirements, the CCPC may take appropriate measures in accordance with the regulations to impose restrictions on its being placed on the market or to require its withdrawal from the market or its recall where there is evidence that, despite such conformity, the product is dangerous.
Duties of Producers
A producer must, in relation to any product which he or she has placed on the market, provide consumers with all relevant information relating to the product to enable them to assess the risks inherent in the product throughout the normal or reasonably foreseeable period of its use, where such risks are not immediately obvious without adequate warnings, and to take precautions against those risks. The presence of a warning does not exempt any person from any obligations to comply with any other requirement of the regulations or the Directive.
A producer shall, in relation to any product which he or she has placed on the market, adopt measures commensurate with the characteristics of the product, to enable the producer be informed of the risks which the product might pose, or choose to take appropriate action, including, if necessary to avoid such risks, withdrawal of the product in question from the market, adequately and effectively warning consumers, or recall of the product from consumers. Recall shall take place as a last resort where other measures do not suffice to prevent the risks involved.
The measures above shall include, for example:
- an indication, by means of the product or its packaging, of the identity and details of the producer and the product reference or, where applicable, the batch of products to which it belongs, except where not to give such indication is justified, and
- in all cases where appropriate, the carrying out of sample testing of marketed products, investigating and, if necessary, keeping a register of complaints and keeping distributors informed of such monitoring.
Where the CCPC considers that a producer has not given relevant information to consumers or taken appropriate action in relation to above risks, he or she may by a direction to the producer require the producer to give to consumers such information or to take such action concerning the product, within such period as may be specified in the direction, as is specified in the direction. A producer who fails to comply with a direction under paragraph (5) is guilty of an offence.
Duties of Distributors
A distributor must act with due care to ensure that any product he or she supplies is a safe product. A distributor must not supply or attempt to supply a product which he or she knows, or it is reasonable to presume, on the basis of the information in his or her possession as a professional, that he or she should know is a dangerous product. A distributor who contravenes this requirement is guilty of an offence.
A distributor shall, in relation to any product placed on the market which he or she supplies, monitor the product with regard to product safety, and for this purpose, the distributor shall, in particular
- inform the producer of the product, the CCPC and consumers as to any defects in it or risks it may pose to consumers that he or she becomes aware of in relation to it,
- keep and provide to the CCPC the documentation necessary for tracing the origin of the product, and
- cooperate in actions taken by the producer and the CCPC to avoid any risk.
A distributor who, without reasonable excuse, fails to comply with these requirements is guilty of an offence.
Duty to inform CCPC of risk.
Where a producer of a product or a distributor of a product knows or, on the basis of information in his or her possession and as a professional, ought to know, that a product which he or she has placed on the market poses a risk to the consumer that is incompatible with the safety requirements of the regulations or of the Directive, the producer or distributor must immediately inform the CCPC of the risk, in a form and under conditions (being defined and drawn up by the Commission) in accordance with Annex 1 to the Directive and published by the Director, and giving details, in particular, of action to prevent risk to the consumer. In the event of serious risks, the information must include at least the following:
- information enabling a precise identification of the product or batch of products in question,
- a full description of the risk that the products in question present,
- all available information relevant for tracing the product, and
- a description of the action undertaken to prevent risks to consumers.
A producer of a product or a distributor of a product shall, on the request being made to him or her by the Director, provide every reasonable assistance to the CCPC to avoid the risks posed by any product which such producer or distributor supplies or has supplied. A producer or distributor who, without reasonable cause, fails to comply with the above requirement or request is guilty of an offence.
General Powers of CCPC
For the purposes of ensuring that products placed on the market are safe and that producers and distributors of such products comply with their obligations under the regulations and the Directive, the CCPC may take all reasonable measures, including such of the following as he or she decides is appropriate in each case for any product, to:
- organise, even after it has been placed on the market as being safe, appropriate checks on its safety properties, on an adequate scale, up to the final stage of use or consumption,
- request all necessary information in relation to the product from any person who, in the opinion of the Director, may be in a position to provide such information, and
- take samples of products and subject them to safety checks;
For any product that could pose risks under certain conditions, the CCPC may issue a direction—
- requiring that it be marked with suitable, clearly worded and easily comprehensible warnings, in the English language, on the risks, it may present,
- requiring that, prior to placing the product on the market, such specified steps are taken as are necessary to ensure its safety;
For any product that could pose risks for certain persons, the CCPC may issue a direction, requiring that persons at risk be given warning of the risk in good time and in an appropriate form, including the publication of special warnings;
Prohibition Directions I
For any product that could be dangerous, the CCPC may issue a direction prohibiting the supply, offer to supply or display of the product pending the carrying out of the safety evaluations, checks and controls necessary to establish the safety of the product;
For any dangerous product, the CCPC may issue a direction prohibiting the placing of the product on the market. For any dangerous product already on the market, it may issue a direction to take all appropriate steps, including if necessary issuing a direction, to ensure—
- the immediate withdrawal of the product from the marketplace, its recall from consumers and its destruction in suitable conditions, and
- that consumers are alerted to the risks presented to the product.
In taking any measure under the regulations, the CCPC must act in accordance with the Treaty, in such a way as to implement such measures in a manner proportional to the seriousness of the risk, and taking due account of the precautionary principle.
Prohibition Directions II
A direction issued under the regulations is addressed to such of the following as is appropriate:
- the producer,
- any person involved as a distributor, in particular, the person responsible for the first stage of distribution on the market in the State,
- any other person, where necessary, with a view to cooperation in action taken to avoid risks arising from a product.
In taking any of the above measures, particularly in the case of a product posing a serious risk, the CCPC shall have regard to the guidelines referred to in the Directive.
A person who fails to comply with a direction by or a request from the CCPC under the regulations is guilty of an offence.
Decisions of the Commission re Products.
Where the CCPC becomes aware that the Commission has adopted a decision as provided to prohibit or restrict a product that poses a serious risk, it may take the measures specified above as may be required by the decision. Any such measure shall, unless a different period is specified in the decision, be taken within 20 days of the receipt by the CCPC of the decision.
Where the CCPC takes any such measure, he or she shall, within one month, give the parties concerned an opportunity to submit their views and must inform the Commission accordingly.
Where, in relation to any product, the Commission has adopted such a decision as provided in the Directive, a person may not export that product from the Community, unless the decision provides otherwise. A person who contravenes this requirement is guilty of an offence.
Procedure in relation to directions of Director.
Where it is feasible, the CCPC must give the opportunity to any person to whom he or she is considering issuing a direction under the regulations to submit his or her views on the proposed direction to the CCPC before the adoption of the measure, and if opportunity is not given because of the urgency of the measures to be taken, the opportunity is given by the CCPC in due course after the direction takes effect.
A direction made or issued by the CCPC under the regulations is to be in writing, shall state the appropriate reasons on which it is based, shall, as soon as possible, be published by placing a notice relating to the direction in a national newspaper and, where the CCPC is aware of the identity of a person to whom the direction is addressed, shall, as soon as possible, be sent or given to that person.
A direction made under the regulations may require that the measures be taken in the direction be undertaken—
- immediately, because of the urgency of the measures to be taken,
- from a specified date,
- by a specified date, or
- between specified dates.
Any person aggrieved by a direction made by the CCPC under the regulations may, within 21 days of receipt of the direction, appeal to the judge of the Circuit Court in whose Circuit the person carries on business.
Where an appeal is made the appellant may make an application to the Court that the direction shall stand suspended until the appeal is determined or withdrawn. On hearing an appeal, the Court may either confirm or vary the direction, or allow the appeal.
A decision of the Circuit Court on an appeal is final, save that, by leave of the Court, an appeal from the decision shall lie to the High Court on a specified question of law.
Authorised Officers I
The CCPC may appoint such and so many persons as he or she thinks fit to be authorised officers for the purposes of ensuring compliance with the regulations and the Directive.
An authorised officer may for the purpose of ensuring that the regulations and the Directive are being complied with—
- at all reasonable times enter any premises, at which there are reasonable grounds to believe that a product to which the regulations apply is being or has been manufactured, distributed, supplied or placed on the market or that records relating to the product are kept, and search and inspect the premises and any product or records found therein,
- secure for later inspection any premises or any part of a premises in which such product or records are kept, or there are reasonable grounds for believing that such product or records are kept,
- require any person in charge of or employed in such premises to produce to the officer such records (and in the case of such information in a non-legible form to reproduce it in a permanent legible form) or to give to the officer such information as the officer may reasonably require in relation to any entries in such records,
- inspect and take copies of or extracts from any such records (including in the case of information in non-legible form a copy of or extract from such information in a permanent legible form),
- remove and detain, where the officer has reasonable cause to suspect that there has been a contravention of the regulations, the product or records for such period as may be reasonable for further examination or until the conclusion of any legal proceedings,
Authorised Officers II
The authorised officer may
- as regards any product or any article or substance used in the manufacture of a product the officer finds at or in a premises, require any person in charge of the premises or any person who appears to the officer to be in possession of the product or the article or substance, to supply without payment, for test, examination or analysis sufficient samples thereof,
- cause any product or any article or substance used in the manufacture of a product found at or in any premises which appears to the officer to have caused or to be likely to cause danger to safety or health, to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is in the circumstances necessary for the purposes of the regulations) and where an authorised officer proposes to exercise this power in the case of a product or an article or substance used in the manufacture of a product found at or in any premises, the officer shall, if so requested by a person who at the time is present at or in and has responsibilities in relation to that premises, cause anything which is to be done by virtue of that power to be done in the presence of that person,
- in relation to any product or any article or substance used in the manufacture of a product found at a premises in accordance with subparagraph (g), take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely to examine or arrange for the examination of it and do to it anything which he or she has the power to do to ensure that it is not tampered with before the examination of it is completed, to ensure that it is available for use as evidence in any proceedings, require any person to afford the officer such facilities and assistance within the person’s control or responsibilities as are reasonably necessary to enable the officer to exercise any of the powers conferred on an authorised officer under the regulations, and
- examine any procedure connected with the manufacture of a product.
An authorised officer, where he or she considers it necessary, may be accompanied by a member of the Garda Síochána when performing any powers conferred on an authorised officer under the regulations or seizing any product under a forfeiture order made.
Authorised Officers III
If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that there is information required by an authorised officer under the regulations held on any premises or any part of any premises or there is a product which an authorised officer requires to inspect for purposes of the regulations or the Directive or that such inspection is likely to disclose evidence of a contravention of the regulations, the judge may issue a warrant authorising an authorised officer, accompanied by either or both authorised officers and members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter, if need be by reasonable force, the premises and exercise all or any of the powers conferred on an authorised officer under the regulations.
A person who—
- obstructs or interferes with an authorised officer in the exercise of the officer’s powers under the regulations,
- fails to comply with a request from an authorised officer under the regulations, or
- makes a statement to such officer which the person knows is false or misleading,
is guilty of an offence.
Injunction and Forfeiture
Where a person fails to comply with a direction of the CCPC under the regulations, the CCPC may, in lieu of any summary proceedings against the person in respect of an offence under certain of the regulations, institute in the High Court proceedings for an order requiring the person to comply with the terms of the direction.
The CCPC may apply under the regulations for an order (“forfeiture order”) for the forfeiture to the CCPC of any product to which the regulations apply on the grounds that the product is a dangerous product. Any product the subject of a forfeiture order may be seized on behalf of the CCPC by an authorised officer.
Any person aggrieved by the making of a forfeiture order or by a decision of the District Court not to make such an order may appeal against that order or decision to the judge of the Circuit Court in whose Circuit a forfeiture order has been made or refused.
On making a forfeiture order, the District Court may if it considers it appropriate to do so, direct that the product to which the order relates shall (instead of being destroyed) be released to such person and on such conditions as the Court may specify.
Any person having an interest in any product which is for the time being detained under may apply for an order requiring the product to be released to him or her or to another person.
Prosecution of offences.
An offence under the regulations may be prosecuted summarily by the Director of the CCPC.
Where a person is convicted of an offence under the regulations the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the CCPC the costs and expenses, measured by the court, incurred in relation to the investigation, detention and prosecution of the offence and, where appropriate, any seizure or detention of the product concerned.
A person guilty of an offence under the regulations is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 3 months or to both.
Where a person is convicted of an offence under several provisions of the regulations, the court by or before which he or she is convicted may order any product in respect of which the offence was committed to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.
Where an offence under the regulations is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of any director, manager, secretary or any other officer of such body or a person who was purporting to act in any such capacity, such person is also guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.