The safety and quality of the toys we buy for our children should be taken as read. These are fundamental requirements, given a child’s propensity to put anything and everything into his/her mouth, and generally pull things apart into smaller pieces. As a consequence there is a strict regulatory regime in place aimed at ensuring the safety of toys. This article will look at the current statutory framework to which all those involved in the toy supply chain must adhere, and will also examine the fallout when things go wrong.

Statutory framework

The Toy Safety Directive 2009/48/EC applies to all toys sold in the EU as of 19 August 2011 (and 20 July 2013 for that part of the Directive which relates to chemicals within toys). The Directive will bite at all stages in the toy supply chain, and thus applies to manufacturers, importers and retailers alike. The Directive was incorporated into UK law by the Toy (Safety) Regulations 2011 (the Regulations).

A toy is defined as a product designed or intended, whether or not exclusively, for use in play by children under 14 years of age.

The Regulations set out the key safety requirements which must be complied with, to include those relating to physical/mechanical properties, flammability, electrical properties, chemical properties, safety warnings, to name but a few. The list of requirements is extensive.

The Regulations also stipulate that toys must be marked to ensure traceability, bear the CE mark and be accompanied by instructions for use and warnings where necessary.

Manufacturers need to be aware that there are also a number of more product-specific regulations, for example relating to magnetic parts, the use of chemicals such as six phthalates and electronic toys. Manufacturers need to ensure compliance with all safety requirements relevant to a particular toy.

Manufacturers must place a CE mark on their toy, which is essentially a declaration that the product satisfies all relevant safety requirements. For products which are manufactured fully in accordance with the requirements of the Regulations, manufacturers may self-certify without obtaining independent verification as to conformity. The CE mark is an enforcement mark, not a sign of quality or safety for consumers. It indicates to enforcement authorities that the toy is intended for sale in the European Economic Area (EEA).

In addition to the aforementioned Regulations which apply specifically to toys, the more generic European Product Safety Directive 2001/95/EC, which was incorporated into UK law by the General Product Safety Regulations 2005, must also be complied with by toy manufacturers. These provide that only safe products will be placed on the market.

When things go wrong

Failure to comply with the increasingly stringent safety regulations can have a significant impact on those involved in the supply chain at many levels.

If a toy is found to be defective in any way it is likely to be the subject of a product recall. Given the potential safety risk to children, such recalls often attract a lot of negative publicity which can cause devastating reputational damage. Recalls are also expensive business, in terms of lost revenue, business interruption and damage to the brand. A case in point is the recall by Mattel/Fisher-Price of millions of toys worldwide due to lead being found in the paint used on the toys. A product liability class action was pursued in the US in respect of these toys, at an alleged cost to Mattel in the order of $50m.

The injury to or death of a child arising out of a defective toy will have a devastating impact on those companies involved in the supply chain. Not only will a hostile, high profile and vigorously fought claim follow, but the reputational damage is likely to be significant. The future viability of the business could be placed at serious risk.

Then there is the risk of a high profile prosecution, which could result in a large fine and/or imprisonment of any Directors/Officers implicated. Again the knock-on effect of a high profile prosecution is likely to be very damaging to a company’s reputation.

Conclusion

The fallout from failing to comply with all requisite safety requirements can lead to devastating consequences as highlighted above. This does perhaps beg the question, why bother? The  fact is we are living in an increasingly materialistic society where children expect, and generally receive, all they desire. The toy industry is therefore a highly lucrative one, and provided the regulatory minefield is carefully navigated, and every step within the supply chain is closely risk assessed, there are significant profits to be made.