412 Chapter 15Regulation of business by the criminal law
The general safety requirement
Regulation 5 sets out the general safety requirement:
(1) No producer shall place a product on the market unless the product is a safe product.
(2) No producer shall offer or agree to place a product on the market or expose or possess
a product for placing on the market unless the product is a safe product.
(3) No producer shall offer or agree to supply a product or expose or possess a product for
supply unless the product is a safe product.
(4) No producer shall supply a product unless the product is a safe product.
Regulation 2, the interpretation regulation, defines a ‘producer’ as including the manu-
facturer, own branders and people who import products into the European Union. Retailers
are not included in this definition unless their activities affect the safety properties of a
product. However, distributors can commit two separate offences under reg. 8, as we
shall see.
Regulation 2 defines a ‘product’ as a product which is intended for consumers or likely,
under reasonably foreseeable conditions, to be used by consumers, even if not intended
for them. The product must be supplied in the course of a commercial activity but there
is no requirement that the consumer pays for it. Both new and used goods are included.
However, equipment used by service providers themselves to provide a service is not
included. Transport services provided by suppliers, such as buses and trains, are specifically
excluded.
Regulation 2 also defines a ‘safe product’:
‘safe product’ means any product which, under normal or reasonably foreseeable conditions of
use including duration,...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. In determining the foregoing, the following shall be taken into account
in particular –
(a) the characteristics of the product, including its composition, packaging, instructions for
assembly and, where applicable, instructions for installation and maintenance,
(b) the effect of the product on other products, where it is reasonably foreseeable that it will be
used with other products,
(c) 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
(d) the categories of consumers at risk when using the product, in particular children and the elderly.
A product is not to be considered dangerous just because it would be possible to make it
safer, nor just because other products are safer.
The Regulations do not apply to antiques, or to second-hand products supplied for repair
or reconditioning before use, provided the supplier clearly informs the person to whom he
supplies the product to that effect.
Regulation 7(1) requires a producer, within the limits of his activity, to provide con-
sumers with the relevant information to enable them to assess the risks inherent in a 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.
Regulation 8 requires that distributors act with due care in order to help ensure com-
pliance with the applicable safety requirements. (A distributor is defined as any professional
in the supply chain whose activity does not affect the safety properties of a product. It
would generally therefore include retailers.)