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New Code for product recall and corrective actions

The UK regulatory regime for consumer goods has a new kid on the block in the form of the Office for Product Safety & Standards (OPSS) – and it has just announced its arrival by teaming up with the British Standards Institution (BSI) to issue a new Code of Practice for product recall and corrective actions. 

These changes come against a backdrop of criticism due to product recalls not being effective enough – particularly in the wake of the Grenfell Tower tragedy, which fire investigators believe was caused by a faulty fridge freezer. A number of recommendations were made by a government working group set up after the Grenfell Tower fire on product recalls and safety, which reported its findings in July 2017.

Here we focus on what the Code of Practice means for retailers, and consider how the OPSS (as a national regulator) might fit in with a product safety regime that is currently primarily driven by local authorities and underpinned by European law. 

Legal status of the new code

The introduction of a new Code of Practice does not change the law in relation to product safety. 

However, the fact that the BSI guidance is backed by the OPSS (a part of the Department for Business, Energy and Industrial Strategy) means that the document is likely to carry considerable authority in the eyes of the courts and regulatory bodies that enforce product safety.

Businesses that comply with the recommendations set out in the Code of Practice are likely to be treated as having complied with their legal obligations. This makes the document a valuable risk mitigation tool for retailers that are not sure whether their product safety and recall procedures currently comply with the law. 

What does the Code of Practice cover?

The guidance seeks to help businesses make the right decision when determining whether corrective action is required and what steps to take to ensure that an unsafe product is effectively removed from the market. 

The guidance also sets out recommendations for advance planning so that when a business is forced to initiate a recall it has sufficient information to ensure that the appropriate recall information reaches its customers.

However, retailers will note that the Code of Practice is light on detail and primarily seeks to set out the core principles that businesses should adhere to. Each business will need to independently assess the best way to follow those principles based on the risks posed. 

What kind of role will the OPSS play in product recalls?

The government has been clear that the role of the OPSS will be developed over time, and that not all aspects of its remit will be fully operational from day one.

Broadly speaking, the government considers the key remit of the OPSS to include: providing management capability to national product safety incidents; information sharing with local authorities; providing consumer facing product safety information; and having a dialogue with businesses to inform its approach to regulation and enforcement.

How will the OPSS work with Trading Standards?

It is expected that (at least for now) the OPSS will primarily support the work of local authority trading standard teams, meaning it will not independently investigate and enforce product safety laws.

Depending on the scale of the product safety issue, it is thought that OPSS involvement will range from playing a purely advisory role for smaller cases to ultimately co-ordinating and managing responses to issues that pose a threat to national consumer safety.

Will retailers need to notify the OPSS in the event of a product recall?

The General Product Safety Regulations 2005 and other similar safety regulations governing consumer goods have not changed. If a serious product safety issue arises retailers can still comply with their obligation to notify an enforcement body by notifying their local authority (or primary authority). 

For now, it is understood the OPSS will not play an active role in enforcing product safety laws for consumer goods – although it is worth noting that existing laws are likely to provide scope for the OPSS to take certain enforcement steps if it wishes to.

Retailers should therefore be aware that obligations that were previously dealt with at a local level will continue to be dealt with in this way, but with support from the OPSS. 

Our advice

Many retailers will already have in place detailed and comprehensive action plans for how to respond when product safety failures are identified. 

However, we expect regulators to play closer attention in the future to how successful product recalls are at ensuring unsafe products are actually withdrawn from the market. For example, a report by Electrical Safety First claimed that electrical product recalls in the UK have an average success rate of just 10-20%.

Retailers should review the new Code of Practice and consider if any improvements can be made to their existing procedures.

Should you have any queries arising from the creation of the OPSS and the new Code of Practice, the measures you have in place to deal with product safety or would like to arrange any training on this then please contact Duncan Reed, legal director in TLT's commercial regulatory team on 0333 00 60742 or send an e-mail to duncan.reed@tltsolicitors.com

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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