It is an alarming scenario for any consumer product manufacturer seeking to manage a complex international supply chain: a minor supplier changes a material used in a single component, neglects to pass on that information, and inadvertently introduces a restricted substance into your consumer product which is then put on the market in multiple jurisdictions.
In a recent case, our environment and product stewardship team was called to support a global electronics business that had discovered that a substance restricted under EU Directive 2011/65/EU for the restriction of the use of certain hazardous substances in electronic and electrical equipment (the RoHS Directive) had been detected in a limited batch of products that had been placed on the market across the EU. We advised on the relevant obligations under the product compliance and safety regime, acting alongside a team of leading European law firms. The firm provided strategic advice and managed all interactions with the new UK regulator, the Office for Product Safety and Standards (the OPSS). A proportionate level of corrective actions has now been agreed with the OPSS, aligning the necessary commercial objectives of the client with the safety of the UK consumer and environment.
It’s a familiar story, and one that demonstrates the importance of control not just over your own manufacturing processes but also throughout the supply chain.
Our top tips are as follows:
- Engagement with the supply chain: Even with the best systems in place, suppliers outside of your control may make mistakes. Regular contact, audits and independent testing regimes can all help to minimise the risk of non-compliance
- Speed of response can save money: If you do detect non-compliance, move quickly to determine the corrective actions. Delay can lead to more expensive corrective actions in the long run
- Understand the risk: The corrective actions needed are proportionate to the risk posed by the product. The first step is to assess the risk posed by the product, and the new PAS 7100 can assist with that
- Manage the data: If the corrective actions require engagement with customers, retailers and consumers, do you have access to the data to allow a rapid response? This is one area where those retailing through the internet may have a natural advantage
- Understand your regulator: It always helps to know who you are dealing with. In the UK, the OPSS is a business-focused and collaborative regulator, mindful of the growth agenda of its Government department and with a risk-based approach to enforcement and corrective actions. Presenting a well-reasoned and evidenced plan for corrective action is the first step in what we would hope would be a constructive dialogue
About the OPSS
The OPSS was created in January 2018 by the Department for Business, Energy and Industrial Strategy, and is tasked with improving protections for consumers and the environment and driving increased productivity, growth and business confidence. Its creation was followed in March 2018 by the publication of a new code of practice on consumer product safety recalls and corrective actions (PAS 7100:2018), which was produced in collaboration with The British Standards Institution. It is understood that, to date, the OPSS has received only a handful of notifications under the new regime.
Our product stewardship team
Burges Salmon regularly advises companies in relation to product compliance and safety. We provide compliance advice, audit, transactional support, corporate defence, dispute resolution and advocacy services and work closely with our wider product stewardship, safety, compliance and recall team, which covers all aspects of product liability law across all product lines.