Infant Products Safety
Appendix One
INFANT PRODUCTS SAFETY
INTERNATIONAL APPROACHES TO PRODUCT SAFETY:

CONTENTS

FOREWORD

EXECUTIVE SUMMARY

AN AGENDA FOR ACTION

DISCUSSION PAPER, THE MINISTRY, AND THE FORUM

ISSUES, DISCUSSION AND SUGGESTIONS FOR ACTION

APPENDIX 2

APPENDIX 3

INTERNATIONAL APPROACHES TO PRODUCT SAFETY

NEW ZEALAND

The main powers of the New Zealand government in the area of consumer safety are set out in the Fair Trading Act 1986. The consumer safety provisions of the Act underwent significant alteration in 1997, resulting in the Fair Trading Amendment Act 2. The main concern of the amendment was to allow for more than one standard to be declared mandatory for a product or service.

There are three ways in which the government may deal with products causing concern in the consumer safety area.

1.
The Governor General may, on recommendation from the Minister of Consumer Affairs, make regulations prescribing mandatory product safety standards. The Governor General may also make regulations declaring an official standard (overseas or domestic in origin) or part of an official standard as a product safety standard. Once a mandatory standard is in place it is an offence to supply goods which do not comply with the relevant standard. There are three mandatory standards in place currently. These standards relate to the sale, manufacture and importing of toys, children's nightclothes, and bicycles.

  • The safety standard for toys requires that those intended for use by children under three years of age should not be of a size that creates a hazard if swallowed or inhaled, or have small parts which can break off and create a hazard. (Requirement to comply with the New Zealand Standard NZS 5822:1992.)

  • The standard for children's nightclothes (6 months to 14 years of age) requires that nightclothes should be made of a fabric which has a low fire danger or made in a form-fitting style to reduce fire danger. (Requirement to comply with the New Zealand Standard NZS 8705:1989.)

  • The safety standard for bicycles requires that the assembly and components of bicycles meet certain minimum specifications. It applies to fully and partially assembled pedal bicycles (as well as those in a disassembled state), with a wheel base of 640mm or more, designed and intended for normal road use. (Requirement to comply with the Australian Standard AS 1927-1989.)

Under section 29 of the Fair Trading Act 1986 it is a criminal offence to supply goods that do not meet a mandatory product safety standard. This is punishable by a $100,000 fine for a company and a $30,000 fine for individuals.

2.
The Minister may declare products to be unsafe goods. Where it appears to the Minister that a good or class of goods will or may cause injury, the Minister may, by notice in the Gazette declare the goods unsafe. The effect of this notice is to ban the product by making it an offence to supply the good which has been declared unsafe. This notice will remain in force for 18 months. After this time the ban may be made permanent.

3.
The Minister may order a compulsory product recall. Where a supplier does not comply with a product safety standard or the goods in question are of a kind which will or may cause injury the Minister may require the supplier to recall the goods and disclose to the public information relating to the characteristics of the goods or the circumstances where the use of the goods, is unsafe. There have been no mandatory recalls ordered in the last five years. However several voluntary recalls have been undertaken by suppliers in co-operation with the Ministry. Some infant products voluntarily recalled by suppliers in the last five years, include strollers, cots, portable cots and rattles.

Under section 33 of the Act, the importation of goods which contravene the consumer safety provisions is prohibited.

There are also several voluntary associations and standards active in the infant products area. A recent example of voluntary infant product safety standards includes the joint Australian and New Zealand standard for cots (AS/NZS 2172) which specifies material, constructional and design requirements for cots. In addition, AS/NZS 2088 contains requirements for the construction and performance of prams and strollers.3

The Ministry of Consumer Affairs has worked with traders towards industry standards for prams, strollers, and cots. In addition, the Infant Products Association (IPA) was established among the major manufacturers and importers of infant products in May 1996. The IPA was established to promote the sale and distribution of safe infant products and to educate and foster the exchange of ideas within the infant products industry. As part of these aims the IPA has adopted a voluntary industry standard for baby walkers. However, the Association has not, to date, been very active. Action is currently underway to revitalise it.

AUSTRALIA

Under the Trade Practices Revision Act 1986 (an amendment to the principal Trade Practices Act 1974), there are several actions the Federal Government may take to protect the consumer. Under section 65B of the Act the Minister may publish a public warning notice containing a description of a particular type of product under investigation and warning of possible risks involved in the use of those goods. The Minister's main powers are described in section 65C which states he or she may :

  • Make regulations prescribing mandatory consumer product safety standards where that standard is reasonably necessary to prevent or reduce the risk of injury to any person.

  • Declare goods to be unsafe by notice in the Gazette, where those goods will or may cause injury.

  • Impose a permanent ban on goods where 18 months have passed after declaring the goods unsafe and there is no mandatory consumer product standard in respect of the product.

Under section 65C (1) it is a criminal offence to supply goods intended to be used by a consumer if those goods do not comply with the relevant prescribed consumer product safety standards, or if the goods have been declared unsafe, or there is a permanent ban on those goods. In addition, under section 65F the Minister may initiate a Compulsory Product Recall of a product which will or may cause injury in itself or which is in contravention of section 65C. Finally, under section 65F (8) where a supplier undertakes a voluntary product recall or is required to recall goods by the Minister, the supplier must give notice to the Minister and those to whom they have sold the product stating the goods subject to recall and the nature of the defect or non-compliance with consumer safety standards. Failure to give the required notice is an offence punishable on conviction attracting a fine not exceeding $10,000.

Responsibility for consumer safety in Australia is divided among several different bodies:

  • the Consumer Affairs Division of the Department of Industry Science and Tourism (CAD)

  • the Australian Competition and Consumer Commission (ACCC)

  • the Consumer Products Advisory Committee (CPAC).
States and territories also have their own bodies which are involved in the consumer safety area.

The CAD carries the main responsibility for consumer safety. Its functions include developing safety and information standards, advising the Minister on the need to ban hazardous products and administering product recalls. The ACCC enforces compliance with the consumer protection provisions of the Trade Practices Act. In addition the CPAC, of which New Zealand is a member, advises the Ministers on the need for voluntary or mandatory product safety standards and the need to ban unsafe goods.4

Australia has been very active in several infant safety areas. The Australian federal government has declared 2 mandatory standards for infant products (out of a total of 18 consumer products mandatory standards). These are for children's nightclothes (AS 1249 - 1983 as amended) and children's toys (AS 1647 Part 2 - 1981). In addition, states and territories have 20 mandatory standards which are enforceable only within the borders of that state (out of a total of 132 consumer products mandatory standards).

The Minister has required three cot-related recalls since 1987. These recalls involved two standard cots and one portable cot. Three strollers have been recalled since 1987. Also, in New South Wales, eleven portable cots have been banned and in 1996 five cots were permanently banned, which has the effect of ensuring both new and second-hand cots of the specified type are effectively removed from the market.5

There are also several voluntary standards including AS 3747, which requires a three point crotch strap and lap restraint to be fitted to all baby strollers, and AS 2195 for folding portable cots for use in domestic situations. In addition, recently the Infant and Nursery Products Association of Australia was formed among key infant product industry manufacturers. The Association's main aim is to establish an industry code of practice and to work with and advise the government on infant safety issues.

Trans-Tasman Mutual Recognition Agreement

The Trans-Tasman Mutual Recognition Agreement is an accord between the Commonwealth, State and Territory Governments of Australia and the Government of New Zealand. The Agreement is seen as a means of overcoming some of the regulatory obstacles to trade between the two countries in respect of the sale of goods and the registration of occupations.

Under this agreement, goods that can legally be sold in one country will be able to be legally sold in the other. Goods need only comply with the standards or regulations in the jurisdiction in which they are produced or through which they are imported. The likely commencement date is early 1998.

However, a special exemption currently exists in respect of products covered by safety standards and bans. This is because of the differing approaches taken by each country to the use of mandatory product standards. During the 12 month period of the special exemption, both parties have undertaken to discuss ways of resolving the difference in approach. A special exemption may be renewed for up to five years while solutions are negotiated, before either lapsing or becoming permanent.

CANADA

There are several bodies involved in the consumer safety area within the Canadian government. The Office of Consumer Affairs is responsible for all federally regulated consumer issues not specifically assigned to another department. These regulations are enacted by the Governor in Council under the Hazardous Products Act. In addition, the Governor may insert any consumer good he or she is satisfied is, or is likely to be, a danger to the health and safety of the public into the Schedule of the Act.

Once the product has been inserted into the Hazardous Products Schedule, by definition it becomes a hazardous product. If the product is inserted into Part One of the schedule it is prohibited from being advertised, sold or imported into Canada now and in the future. Conversely, if the product is inserted into Part Two of the schedule it is only able to be sold if it conforms to prescribed standards. In the area of infant products, several types of rattles cribs and playpens have been inserted into Part Two of the Schedule and are therefore required to conform to certain specified standards. Continuing to sell a product in Part One of the Schedule, or failing to comply with the prescribed standards relating to a product in Part Two of the Schedule, attracts criminal sanctions in the form of a $1,000 fine, imprisonment for no more than six months, or a combination of both penalties.

In the area of infant products there have been several significant developments where the Hazardous Products Schedule has been put to use. Since 1985, the sale of cots that do not comply with safety standards in the Hazardous Products Act has been prohibited. It is important to note that the standards apply both to new and resold products and therefore it is illegal to sell even a second-hand cot which does not comply with the required safety standards. New baby walkers have effectively been banned from being sold as the safety standard for walkers requires the base to be at least 900mm and manufacturers of these products were unwilling to redesign the walker for the relatively small number of sales in Canada6.

In addition, the Product Safety Program (PSP) is responsible for establishing and enforcing regulations specified in the Hazardous Products Schedule of the Act. This body has three distinct functions. Firstly, the PSP has several regulatory functions, including developing regulations and guidelines for products, monitoring compliance with standards, and initiating corrective measures where a company does not comply with the Act. The PSP is also responsible for several voluntary programmes, which have the function of developing voluntary standards, testing products and providing advice and consultation on standards in general. Finally the PSP has a role in providing information to the public, in the form of public warnings, promotions, exhibits, reports and guidelines. An important initiative in the area of infant products established by the PSP is the Product Safety KidsCare office, which recently launched a campaign on lighters and matches and their availability to children7.

GERMANY

The powers of the German government to protect the consumer are set out under the Law of the Safety of Equipment. This law was altered in 1986 to extend to matters of consumer protection8. Under section 3.1 of the Act suppliers are under a general safety duty to supply goods only if they are in accordance with the generally recognised "state of art" and regulations on industrial safety and prevention of accidents. Manufacturers and importers have the opportunity to obtain confirmation they are complying the general safety duty by submitting the product to an authorised testing centre to undergo a design test. If the product passed the required tests, that company is then entitled to use the approved safety symbol GS to show that their goods have been tested and comply with the general safety duty9.

The Law on the Safety of Equipment is enforced by decentralised Trade Supervisory Offices. The main emphasis of these offices is at exhibitions and shows. At these initial marketing stages the offices aim to protect the consumer by preventative rather than reactive hazard detection. These offices also administer targeted market controls where materials have proved themselves particularly accident inductive or dangerous. In using these targeted market controls the offices have tended to concentrate on items such as infant products, which are designed for use.

In aggravated circumstances, the Trade Supervisory Offices may initiate prohibition orders against the manufacturer. Before a prohibition order is imposed, the Law requires that the defect must constitute a danger to life or the health of the user, given proper use of the product. The stringent requirements of the Law have meant that prohibition orders have been used very infrequently. More commonly the offices will require the trader to issue instructions on the defect which has been found in the product, change the design of the product or the use instructions, or remove the defect within a specified time.

German authorities have initiated several measures in the area of infant products. These actions include the establishment of a European Standard for children's cots, which includes safety requirements and testing procedures. However, like the United States' standards, the use of broken cots in the home is outside such controls.10

UNITED KINGDOM

The United Kingdom system of consumer protection closely resembles that of other European Community countries. Firstly, under section 12 of the Consumer Protection Act 1987, a person is guilty of an offence if they supply consumer goods which are prohibited by any safety regulations made under this Act. These regulations are specific and refer to a particular type of goods. Many of these regulations were made as a result of European Community Directives and require that a supplier comply with certain safety standards. Some safety standards referred to in these regulations are known as harmonised standards and apply throughout the European Union. At present, there are several regulations for infant products including safety requirements for the construction of cots (BS/EN 716-1 1996), for wheeled child conveyances (BS 7409 1996)11and BS 5665/ EN 71 for toys.

In addition, a supplier must also comply with the General Product Safety Regulations (1994). These regulations superseded the general safety requirement imposed in section 10 of the Consumer Protection Act, which aimed to impose a general duty on suppliers to supply safe goods. These general product safety regulations (GPSR) cover situations where an aspect of safety is not covered by the relevant Directive, or a product complies with existing specific safety regulations but is still found to be unsafe. The GPSRs also apply to most second-hand goods. It is an offence under these regulations to supply unsafe products. A person (manufacturer, supplier, distributor, or individual) will fail to comply with the general safety regulations if the product is not reasonably safe having regard to the circumstances. These circumstances include:

  • the manner in which the goods are marketed

  • whether the good complies with any standards of safety which apply to the goods in question

  • whether any instructions or warnings are given

  • effect on other product it is used with

The enforcement of compliance with safety regulations is undertaken at a local level by Trading Standards Authorities in each area rather than at a national level. Under section 14 (1), if an enforcement authority reasonably suspects a trader is supplying goods in contravention of a safety provision, the authority can serve a suspension notice to prevent the trader from disposing of stock for six months. The local authority can also apply to the court for forfeiture of unsafe goods.

In addition to the powers of local enforcement authorities, the Secretary of State may prohibit goods which are unsafe or do not satisfy requirements of regulations. This prohibition notice consists of a ban on an identified trader in respect of a specified product and carries a maximum fine of £2,000, summary conviction and up to six months imprisonment if the trader continues to supply the unsafe goods. Also, under section 13 (1)(b) the authority has the power to require manufacturers and distributors of goods, which were found to be dangerous after they have been sold, to publish notices warning the public of the danger. In addition, the Secretary of State may make Emergency Orders to ban certain items. However, in contrast to many other systems, no body has the power to order manufacturers to recall dangerous products.

In addition to work done by the local enforcement authorities and the Secretary of State, there are also several voluntary codes of practice in place which deal with infant safety. For example, the British Standards Institution has developed a voluntary safety standard for baby walkers, which recommends safety warnings be placed on both the product instruction sheet and the packaging of the walkers.12


Footnote(s)

2
no. 43, 28 July 1997
3
Watson, W. Ozanne-Smith, J. Begg, S. Imberger, A. Stathakis, V. Ashby, K. (1997) "Injuries Associated with Nursery Furniture and Bunk Beds" Monash University Accident Research Centre Report.
4
Harland, D. in Micklitz, H-W.(1990) Post Market Control of Consumer Goods, Bade-Baden, Germany.
5
Above n2.
6
Above n2.
7
OECD (Organisation for Economic Co-operation and Development) (1995) Consumer Policy in OECD countries.
8
18 February 1986, BGBl.I,265.
9
Falke, J. in Micklitz, H-W. (1990) Post Market Control of Consumer Goods, Bade-Baden, Germany.
10
Above n2.
11
Above n2.
12
Above n2.
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