PRODUCT LIABILITY PART – 4

Offences are created by reg.20 in respect of contraventions of regs 5, 7, 8, and 9, as well as for failure to comply with a safety notice. Most of the offences are summary only except for contravention of regs 5 and 8(1)(a) (obligation on distributor not to supply etc. a dangerous product), which are triable either way.

In terms of enforcement, the relevant authorities (reg.10) have all the same obligations as are found within the Consumer Protection Act 1987 in terms of notices and warnings (regs 11 to 16). The additional powers which were previously found at reg.21 onwards, have now been repealed by the Consumer Rights Act 2015 and are governed by the generally applicable rights and obligations of enforcers in Sch.5 thereto.

The Regulations also include a statutory defence of due diligence, similar to that found in s.39 of the Consumer Protection Act 1987 (reg.29), as well as a specific defence in respect of antiques (reg.30).

Other Relevant Legislation: Some are product-specific and regulate the supply of what can be properly considered inherently unsafe products (for example the Children and Young Persons (Protection from Tobacco) Act 1991 and the Fireworks Act 2003). Beyond mentioning them in passing, it is unnecessary to consider them further.

However, the Enterprise Act 2002 should be briefly considered since it gives designated enforcers powers to address large scale questions of consumer detriment. Obviously product liability issues may therefore fall within its scope.

Of particular significance are the powers under Pt 8 of the Enterprise Act which enables enforcement authorities (including trading standards departments) to prevent conduct which is thought to constitute a domestic or Community (i.e. European) infringement. It was subject to amendment following the coming into force of Sch.7 of the Consumer Rights Act 2015 which sets out certain “”enhanced consumer measures…””. A “domestic infringement” is any act done in the course of a business which harms the collective interests of consumers and constitutes a breach of domestic law (s.211). Following amendments by the Consumer Rights Act 2015 (Sch.7 para.3), this definition has been further restricted to such acts or omissions done by those who have a place of business in the UK or done for those in the UK. A “Community infringement” is any act or omission which harms the collective interests of consumers and constitutes a contravention of any Community law, or any law of an EEA State which gives effect to a “listed Regulation” (s.212). The difference between the two is therefore that Community infringements relate only to European law, have no requirement of acting “in the course of a business” and is not limited to the UK. The definition of a community infringement remains unchanged by the 2015 Act.

If there has been such an infringement, an enforcer must consult with the offender and the Competition and Markets Authority (CMA) to attempt to achieve cessation of the behaviour in question (s.214). The 2015 Act (Sch.7 para.5) also extends the usual 14 day consultation period (s.214(4)(a)) to 28 days where the offender is represented by a body which operates a consumer code approved by certain specified bodies (including enforcers). In the event that such consultation is unsuccessful an enforcer has two options: either to apply to the court for an enforcement order requiring the person to, in effect, cease the offending behaviour (s.215). Alternatively, to issue an undertaking to the offender which is dealt with by s.219. An undertaking may include a requirement for the offender to take “enhanced consumer measures” as defined by s.219A. Thereunder, an enhanced consumer measure are categorised into “”redress”, “compliance” or “choice””, as defined. Per the new s.219B of the 2002 Act, such measures can only be included within an undertaking as the court or enforcer considers to be “just and reasonable” taking into account the likely costs and benefits of doing so. In the event that an undertaking issued and then breached by the offender, the CMA has the right to apply to the court, which, among its other powers, may make an enforcement order (s.220).