Product safety and criminal liability

By Tej Thakkar, Birkett Long

Entrepreneurs and companies alike will invariably have a passion for the products they design, manufacture and place on the market, which are central to the ongoing success and viability of their business.

Published in Suffolk Director Magazine, Winter 2021|22
Never Miss A Copy
Sign up now to receive for free the latest magazine as an e-publication

Legal: Birkett Long

It is equally important that their respective products are safe to prevent claims and liability, and to preserve the ongoing reputation of their commercial enterprise.

The regulatory regime

In the UK, the regulatory regime that imposes positive obligations on producers and distributors of products rendered unsafe, or potentially unsafe, are primarily conferred within the General Product Safety Regulations 2005 (“GPSR”). I use the term ‘primarily’ since GPSR applies to all products that are not otherwise subject to sector specific regulations (such as medicines, medical devices, toys and cosmetics to name a few).

GPSR imposes broad ranging safety requirements that are reinforced by criminal sanctions on producers and distributors of unsafe products (sub-standard, defective and/or dangerous), and require them to adopt appropriate corrective action when safety concerns arise, to mitigate any risks to consumers.

The appropriate course of action

GPSR stipulates that a producer must be willing to take ‘appropriate action’ to deal with unsafe (actual or potential) products. 

This includes:

  • Implementing steps to avoid any risks
  • Withdrawing the product from the supply chain
  • Providing an effective warning to end users of the product, and 
  • As a last resort, a product recall

GPSR does not contain any specific legal criteria for determining what specific action would be deemed appropriate. However, when a safety concern is raised, then a proper and timely risk assessment should be carried out to assess whether the safety risk is genuine and legitimate. As part of that process, steps need to be taken to ascertain whether or not the problem is isolated or presents a hazard to a larger group.

Product recall?

A producer who discovers it has placed an unsafe product on the market is not, automatically, required to recall the product. In view of the legal obligation, the onus is on the producer to decide upon the appropriate course of action; taking into account the characteristics of the product concerned, the nature of the risk posed and the temperament of the consumers.

Enforcement Action

GPSR is implemented and enforced jointly by the Trading Standards officers of local authorities and by the Office for Product Safety and Standards (“OPSS”). These regulatory bodies have powers to investigate, enforce and prosecute companies for placing unsafe products on the market, and, in some instances, to require them to recall products or adopt other measures to mitigate the risks posed by the products concerned.

GPSR creates specific offences arising as a result of failing to conform with the legal requirements. Whilst the authorities have discretion on whether or not to bring formal charges, they normally elect not to do so where the producer concerned is a reputable business and is seen to be taking reasonable measures to address the risk created by the product.

If you would like more information or to discuss any of the issues covered in this article, please contact Tej Thakkar, Head of Regulatory at Birkett Long LLP.
T: 01206 217312
E: tej.thakkar@birkettlong.co.uk or visit:
birkettlong.co.uk/site/in-business/regulatory-law/

Table of Contents

Regulatory Law Specialists

It’s not just about knowing the law.

Share This
Suffolk Director Magazine

SIGN UP

WHEN RELEASED WE WILL SEND YOU THE latest digital version.