Chapter 12Criminal liability in business1 Scope of the regulations.The regulations apply to
products intended or likely to be used for consumer use
which have been supplied in the course of a commercial
activity. A ‘consumer’ is a person who is not acting in
the course of a commercial activity. A commercial activ-
ity is defined as any business or trade. The regulations
apply whether the products are new, used or recondi-
tioned. Products used exclusively in the context of a
commercial activity, even if for or by a consumer, are
not subject to the regulations.
The regulations do not apply to the following types of
products:
(a) second-hand products which are antiques;
(b) products supplied for repair or reconditioning before
use, but the supplier must inform the customer to
that effect;
(c) products that are subject to specific provisions of
EC law covering aspects of their safety.
2 General safety requirement.Regulation 5 provides
that a producer may not place a product on the market
unless it is a safe product. It is an offence to fail to
comply with the general safety requirement. It is also
an offence for a producer or distributor to offer or agree
to place (or supply) a dangerous product or expose or
possess such a product for placing on the market (or for
supply) (reg 20).
3 Safe product.Regulation 2 sets out what is meant by
a ‘safe product’. A product will be safe if, under normal
or reasonably foreseeable conditions of use (including
duration), there is no risk or the risk has been reduced
to a minimum. Any risk must be compatible with the
product’s use, considered acceptable and consistent with
a high level of health and safety protection. In this respect,
account should be taken of the following matters:
(a) the characteristics of the product, including its com-
position, packaging, instructions for assembly and
maintenance;
(b) the effect on other products, if it is likely to be used
with other products;
(c) the presentation of the product, the labelling, any
instructions for use and disposal, and any other
instructions or information regarding the producer;
(d) the categories of consumer at serious risk in using
the product, particularly children and the elderly.
The fact that higher levels of safety can be achieved or
that there are less risky products available will not of
itself render a product unsafe.
Products which comply with UK legal requirements
concerning health and safety are presumed to be safe
products (reg 6). If no specific rules exist, the safety of
a product will be assessed according to:
(a) voluntary UK standards which give effect to a Euro-
pean standard; or
(b) other national standards drawn up in the UK;
(c) EC recommendations setting guidelines on product
safety;
(d) sector-based product safety codes of good practice;
(e) the state of the art and technology; and
(f ) reasonable consumer expectations concerning safety.
4 Producer.A ‘producer’ is defined in reg 2 as:
(a) a manufacturer established in the EC;
(b) where the manufacturer is not established in the EC,
his representative or the importer of the product;
(c) other professionals in the supply chain, but only to
the extent that their activities might affect the safety
of the product.
5 Information requirements.A producer is required
under reg 7 to provide consumers with information so
that they can assess inherent risks and take precautions.
The duty only arises where the risks are not immediately
obvious without adequate warnings. A producer must
also adopt measures to keep himself informed of any
risks which his products may present. This may include:
(a) marking the products (or product batches) so they
can be identified;
(b) sample testing of marketed products;
(c) investigating complaints;
(d) keeping distributors informed of monitoring
arrangements.
The producer must also take appropriate action to
avoid risks which may include withdrawing the product
from the market.
6 Duty of distributors.A distributor must act with due
care to help producers comply with the general safety
requirement. In particular, a distributor will commit an
offence if he supplies dangerous products. He must also,
within the limits of his activities, participate in monitor-
ing the safety of products, including passing on infor-
mation about product risks and co-operating in action
to avoid the risks (reg 8(b)).
7 Defence of due diligence.It is a defence for a per-
son accused of an offence under the regulations to show363