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Are there any statutory criteria under which a product must be recalled or other corrective action be taken?
The Product Safety Act provides for corrective actions to be taken by the producer or distributor of a dangerous or defective consumer product. The act is horizontally applicable and becomes applicable only if the sectoral applicable law does not provide for any corrective measures. Pursuant to Article 8, Paragraph 2 of the Product Safety Act, the manufacturer or any other distributor that places a consumer product on the market must take adequate measures to recognise the potential dangers arising from a normal or reasonably foreseeable use of its product, to prevent such danger and to trace back the product during its stated or reasonably foreseeable lifespan. Such adequate measures may consist of a sales stop or a recall.
What rules and procedures govern notification of the product recall to government authorities and the public?
If a producer or distributor learns or has reason to believe that its product poses a risk to the safety or health of consumers or third parties, it must immediately notify the competent authority of:
- the product in question;
- the risk involved; and
- the measures which have already been taken to prevent the risk arising from the product.
The requirements of such a notification are provided in Article 8, Paragraph 5 of the Product Safety Act.
However, the act is applicable only if requirements are not provided by a specific sectoral law. The corrective measures to be taken by a producer in case of a safety or health risk, include:
- informing the members of public concerned by:
- releasing publications in magazines;
- distributing letters to customers; or
- publishing a notice of the safety risk on the website of the Federal Bureau of Consumer Affairs, which informs the Swiss public about current recalls and other safety measures of producers on a regular basis); or
- sales stops and recalls.
The competent enforcement authorities may order or recommend further measures if deemed necessary. The Swiss State Secretariat for Economic Affairs has published a template form for the notification of dangerous consumer products which can be found on its website.
Repairs, replacements and refunds
What rules and procedures govern repairs, replacements and refunds for defective products?
Under product safety law, there are generally no statutory rules or procedures in place requiring a producer or distributor to repair or replace affected products or to refund the purchase price. If there is a contractual relationship between the producer and the buyer, the buyer may claim the repair or replacement of the product or the refund of the purchase price based on contract law (eg, based on a breach of warranty pursuant to Article 197 of the Swiss Code of Obligations) if the seller has not validly disclaimed such liability to the buyer.
What penalties apply for non-compliance with the legal provisions governing product recalls?
The applicable penalties for non-compliance with product recall provisions are governed by sectoral law in the first instance. On a subsidiary basis, Article 16 of the Product Safety Act contains several criminal offences entailing penalties for non-compliance. Pursuant to Article 17 of the act, a producer or distributor that fails to inform the relevant authority of a detected safety or health risk arising from its products and take measures to prevent such risks (eg, information of its customers or the public, or the initiation of a product recall) against its obligation to do so under Article 8, Paragraph 5 of the Product Safety Act can be fined up to Sfr40,000. In case of negligence, the fine is limited to Sfr20,000. Fines are imposed on the responsible natural person within the producer's or distributor's organisation (Article 17, Paragraph 3 of the Product Safety Act and Article 6, Paragraph 1 of the Administrative Criminal Act).
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