Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Are there any statutory criteria under which a product must be recalled or other corrective action be taken?
Manufacturers of consumer products have obligations to place only safe products on the market. They also have obligations to report to the authorities and conduct appropriate corrective actions to deal with unsafe products that they have marketed. These obligations arise primarily under the General Product Safety Regulations.
Under the regulations, product recall is considered a last resort and other corrective measures may be considered sufficient depending on the circumstances (eg, withdrawal from the supply chain or sending warnings to consumers).
The measures to be taken must be commensurate to the risk. A risk assessment must be carried out to determine the necessary corrective action. The regulations do not say how that risk assessment is to be conducted. However, the European Commission has issued guidance that lays out the methodology in some detail.
Ultimately, deciding the appropriate corrective action is a matter of judgement as to whether a particular risk scenario requires a company to undertake a product recall or other corrective action.
What rules and procedures govern notification of the product recall to government authorities and the public?
Article 9 of the General Product Safety Regulations obliges manufacturers, importers and distributors to report any dangerous consumer products that they have put into circulation in the consumer market. Failure to make this notification is a criminal offence under Section 20(3) of the regulations, which is punishable by imprisonment of directors and/or a statutory fine for the company.
These procedures derive from the EU General Product Safety Directive and similar obligations exist throughout the European Union. Manufacturers, importers and distributors may need to deal with these obligations in multiple countries, and while mechanisms are available to streamline the process, the information-sharing procedures that exist between the authorities can make this a challenging process.
As for the publication of information about recalls, this is assessed on a case-by-case basis, having regard to the risk assessment and other considerations. Specific advice should be sought on these matters before finalising a corrective action plan.
Under the supervision of the UK government, and with the support of British Standards, a code of practice is to be published providing guidance on the conduct of product recalls.
Repairs, replacements and refunds
What rules and procedures govern repairs, replacements and refunds for defective products?
The Consumer Rights Act affords consumers certain minimum statutory warranties which cannot be contracted out of. For example, consumers are afforded the right to reject the product for a full refund in the first 30 days from taking delivery and ownership of the goods where the product is unsatisfactory, unfit for purpose or not as described.
Consumers are also afforded the right to require the relevant retailer to repair or replace a defective product within the first six months of the goods being delivered to the consumer. During this time, the onus is on the retailer to prove that the product is not defective. After this period, the onus shifts to the consumer to prove that the product was defective at the time of purchase. If the attempt at repairing or replacing the product is ineffective after it has been triggered, the consumer is entitled to a refund or a price reduction (if the consumer wishes to retain the product).
These rights are subject to it not being unfairly disproportionate on the retailer, or simply impossible. For example, a retailer can replace a defective product rather than attempt to repair it, if doing so is a more cost-effective course of action.
What penalties apply for non-compliance with the legal provisions governing product recalls?
There are no mandatory legal provisions or any other specific regulatory requirements in relation to the way that companies conduct their product recalls. However, companies are required to report a defective product that has entered the consumer marketplace and to place only safe products on the market, non-compliance with which carries statutory penalties. It is also an offence to fail to comply with certain orders issued by the authorities.
Click here to view the full article.