Everyone loves the dazzling show created by fireworks. The attraction of fireworks to celebrate all kinds of events is ever popular and fireworks are bigger and better than ever. As with any product sold in the UK, those products must be fit for purpose (Sale of Goods Act 1979) and ‘as safe as people are generally entitled to expect’ (Consumer Protection Act 1987). Also, under the General Product Safety Regulations 2005, “No producer shall place a product on the market unless the product is a safe product.” However, things do go wrong, issues do occur during the manufacturing or supply process and without knowing it, you may have produced or be selling a firework which is defective.
There is no doubt a defective firework can do a lot of harm – for example at a California fireworks show in 2013, a defective shell exploded early, sending rockets and shrapnel into the crowd, injuring 39 people. The injuries can be horrific. Therefore where do you stand legally if you manufacture, supply or sell direct a defective firework? This article seeks to set out briefly the relevant statutory provisions and key requirements for those involved in the supply chain of fireworks.
All fireworks sold in the UK must comply with the Pyrotechnic Articles (Safety) Regulations 2010 (the Regulations) which came into force on 4 July 2010 (there are limited exceptions where this date is 4 July 2013). This requires all fireworks (defined as “a pyrotechnic article intended for entertainment purposes”) supplied to the UK for sale to the general public, no matter where they were manufactured, to meet the safety standards of BS EN 14035 (which supercedes BS7114-2: 1988). To confirm that this requirement is met, all such fireworks must be marked “CE” to show that they meet EU requirements (Directive 2007/23/EC). These Regulations replace the Fireworks (Safety) Regulations 1997 (as amended by the Fireworks (Safety)(Amendment) Regulations 2004) and fireworks which were produced in compliance with the earlier Regulations can continue to be sold until July 2017 – these will bear the BS7114 mark.
The key changes brought about by the Regulations are:
- A much wider scope including non-firework pyrotechnic articles (eg car air-bag detonators)
- The introduction of independent third party conformity assessment
- Free movement
- CE marking and new labelling rules
- The Regulations apply to the whole of the UK, not just Great Britain
- New enforcement provisions
The Regulations maintain the categorisation of fireworks contained in BS7114. Briefly, these are based on gunpowder content, weight, size and how far the firework ejects debris. In brief, these are as follows:
- Category 1 – pose a minimal hazard and usually applies to indoor fireworks
- Category 2 – garden fireworks
- Category 3 – display fireworks
- Category 4 – fireworks sold for professional use only (including theatrical pyrotechnics) and can include aerial shells and other items banned from sale to the public because they are extremely dangerous to the untrained
Who do the Regulations apply to and how?
Part 2 of the Regulations apply to all those in the supply chain for category 1, 2 and 3 fireworks. This includes manufacturers (paragraph 6), importers (paragraph 7) and distributors (paragraph 8). Similar provisions are contained in Part 3 in respect of category 4 fireworks. For the purposes of this article we will address only those on sale to the general public.
The onus of ensuring the firework is made in accordance with the Regulations is on the manufacturer who is required to ensure compliance with the safety requirements as set out in Schedule 2, namely that the firework has been submitted to a notified body or is otherwise subject to a conformity assessment, has passed the conformity assessment procedure and has the CE mark affixed. This includes ensuring the firework is categorised in accordance with paragraph 4 of the Regulations.
A manufacturer is defined as “a person who designs or manufactures a pyrotechnic article, or who causes such an article to be designed and manufactured with a view to first making it available on the EU market and its distribution and use, distribution or use, whether for payment or free of charge, under the name or trademark of that person.”
Where a manufacturer is not established within the EU the importer of the firework must ensure compliance with the Regulations as if the manufacturer were based in the EU. The importer will be liable for any contravention of the Regulations and any contravention caused by an act, omission or default of the manufacturer.
The distributor is required to act with due care in relation to category 1, 2 or 3 fireworks. This, in particular, includes the requirement to check that the category 1, 2 or 3 firework bears the CE marking and is accompanied by any separate safety warnings or instructions provided by the manufacturer or importer.
The local weights and measures authority (usually the trading standards departments of most local authorities) is responsible for enforcement of the Regulations (the Secretary of State has a default power to enforce) and their powers derive mainly from the Consumer Protection Act 1987.
Under the Regulations, where the enforcing authority becomes aware of a category 1, 2 or 3 firework used in accordance with its intended purpose, which is liable to endanger health and safety, the following notices may be served against the manufacturer, importer or distributor as appropriate:
- A prohibition notice
- A notice to warn
- A suspension notice
- A withdrawal notice
However, it should be noted that the enforcement powers under the Regulations are not restricted to those measures set out above and, by reference to the General Product Safety Regulations 2005 and/or pursuant to the Consumer Protection Act 1987, the enforcing authority (the local authority or county council under the 2005 Regulations) has the power to prosecute. If found guilty of an offence under either statute sanctions can include imprisonment and/or a fine.
Whether you are an importer, manufacturer or distributor of fireworks, it is imperative that you are fully aware of the provisions of the Regulations and you comply with these. Accidents involving defective fireworks do occur, sometimes with devastating consequences. If this does happen, not only is there the possibility of an investigation by the enforcement authorities but also a civil claim by the injured persons.