Reporting requirements for defective productsGovernment notification
What requirements are there to notify government authorities (or other bodies) of defects discovered in products, or known incidents of personal injury or property damage?
The obligation to notify government authorities (or other bodies) of defects discovered in products, or known incidents or property damage, results from the General Product Safety Directive and was implemented in article L423-3 of the Consumer Code.
According to article L423-3 of the Consumer Code, the professional responsible for marketing a product has to inform the competent administrative authorities as soon as he or she notices that a product does not comply with the general product safety requirements provided by article L421-3.Notification criteria and time limits
What criteria apply for determining when a matter requires notification and what are the time limits for notification?
Criteria applied for determining when to notify a defect
According to article L423-3 of the Consumer Code, the professional has to notify government authorities (or other bodies) of defects in products, or incidents, as soon as he or she knows that the product he or she has put on the market does not comply with the requirements laid down in article L421-3 of the Consumer Code (general safety obligation).
The Commission’s decision of 14 December 2004 sets out guidelines for the notification of dangerous consumer products to the competent authorities of the member states by producers and distributors (the guidelines) in accordance with article 5(3) of the General Product Safety Directive. This is the reference document for the application of the provisions of the General Product Safety Directive concerning notification of dangerous consumer products to the French competent authorities by producers and distributors.
These guidelines set out the notification criteria that apply to France and read as follows:
- the product is understood to be intended for, or likely to be used by, consumers (article 2a of the General Product Safety Directive);
- article 5 of the General Product Safety Directive applies (unless there are specific provisions established by other community legislation);
- the product is on the market;
- the professional has evidence that the product is dangerous according to the general product safety directive, or that it does not satisfy the safety requirements of the relevant community sectoral legislation applicable to the product concerned; and
- the risks are such that the product may not remain on the market.
Time limits for notification
According to article L423-3 of the Consumer Code, the professional has to notify the competent administrative authorities of the incident immediately. No precise time limit is defined within the national provisions.
The guidelines for the notification of dangerous consumer products in France (commission’s decision of 14 December 2004) provide two time limits:
- a company must inform the competent authorities as soon as the relevant information has become available, and in any case within 10 days from when it has reportable information, even while investigations are continuing, indicating the existence of a dangerous product; or
- when there is a serious risk, companies are required to inform the authorities of the situation no later than three days after having obtained notifiable information.
To which authority should notification be sent? Does this vary according to the product in question?
According to the ministerial order of 9 September 2004 concerning the application of article L423-3 of the Consumer Code, notifications (pursuant to article L423-3) should be sent to one of the three authorities. Depending on the product in question, the competent authority is one of the following:
- the Directorate for Road Safety and Traffic: notification must be provided from car manufacturers and their distribution network when vehicles and equipment sold under the manufacturer’s brand are concerned;
- the Directorate General for Food: notification must be provided when food products are concerned, which includes animal food, animal food products or human food. All notifications regarding food products that are not included in these categories (such as additives, aromas, etc) are to be submitted to the Directorate General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF); and
- the DGCCRF: the DGCCRF receives any other notifications that do not fall under the auspices of the Directorate for Road Safety and Traffic or Directorate General for Food referred to above.
What product information and other data should be provided in the notification to the competent authority?
According to article 2 of the Ministerial Order of 9 September 2004, the following information should be provided in a notification to the competent authority:
- the date of notification;
- the name and address of the professional or company providing the notification, as well as those of its suppliers and the professionals who have been supplied with the product;
- the product’s description (particularly its name, brand, batch number, volumes involved, etc);
- the description of the danger and the measures taken by the professional; and
- any other information that could be useful to the authorities.
Notification forms can be found on the DGCCRF’s website: www.economie.gouv.fr/dgccrf/Securite/Rappel-de-produits/Signalement-des-produits:
- for non-food products, the notification form is available from: https://webgate.ec.europa.eu/gpsd-ba/index.do; and
- for food products that fall under the auspices of the DGCCRF, the notification form is available from: www.economie.gouv.fr/files/files/directions_services/dgccrf/securite/alertes/documents/formulaire_prof.pdf.
What obligations are there to provide authorities with updated information about risks, or respond to their enquiries?
There is no explicit obligation under French law (the Consumer Code) to provide authorities with updated information about risks. The professional’s obligation to inform, as laid down in articles L423-1 and L423-2 of the Consumer Code, only concerns the obligation to provide the consumers with information that enables them to assess the risks inherent in a product.
However, French controlling officials, listed in article L511-3 of the Consumer Code, have investigatory powers, and the professionals must respond to their enquiries (article L512-8 et seq).
It should be emphasised that this new article (amending the old article L215-1) has significantly reduced the number of authorities that are entitled to investigate and note professionals’ infractions: only the officers of competition law, consumption and fraud control have that power from now on.
Article L512-5 of the Consumer Code authorises those officials to enter business premises, and premises in which a service is being provided. Moreover, this new article gives them the power to exercise their mission on the public highway.
They can also require to be provided with all information allowing them to determine the specifications of the products or services or to estimate whether the product or the service is dangerous (article L512-8 et seq of the Consumer Code).
The Sanitary Surveillance Institute (IVS), created in 1998, and whose task is, in the case of a threat to public health, to inform the public authorities of the origin of the threat and to take appropriate measures to avert the danger, can also request that a person communicate any information in his or her possession relating to serious threats to human health (article L1413-5 of the CSP).Penalties
What are the penalties for failure to comply with reporting obligations?
See question 3.Public disclosure
Is commercially sensitive information that has been notified to the authorities protected from public disclosure?
Article 11 of the Criminal Procedure Code specifies that the procedure during an inquiry is secret.
In accordance with this fundamental principle, the officials and employees of the competent authorities have to respect professional confidentiality. Despite the provisions of article 11 of the Criminal Procedure Code, article L512-22 of the Consumer Code does, however, allow the disclosure of confidential information where doing so would avert the risk of serious and immediate danger to the health and safety of consumers.
Therefore, commercially sensitive information that has been communicated to the competent authorities is not in all circumstances protected against public disclosure.Use of information in prosecution
May information notified to the authorities be used in a criminal prosecution?
Information notified by professionals to the authorities can be completed by means of inquiries or hearings before the competent authorities that are in charge of the investigation and assessment of breach of the legal provisions regarding product safety (indeed, the professionals have to provide them with all information related to the product and its potential danger (see question 8)). For this reason, information notified by the professionals to the authorities and completed during the inquiries may be used in a criminal prosecution when a breach of the legal provisions regarding product safety has been noted.