A new draft product safety law (the ‘Draft Safety Law’) has recently been passed by the Federal National Council, though it has not yet been enacted. The Draft Safety Law has recently been in the headlines because of the substantial fines and prison terms it can impose on infringers. In this article we summarise the main provisions of the Draft Safety Law relevant to manufacturers.
Before we begin, it is worth noting the intention of the Draft Safety Law and its context. The Minister of Economy and Chairman of the Authority for Emirates Standardisation and Metrology (‘ESMA’) stated that the Draft Safety Law is meant ‘to protect consumers and ensure that all consumer products, both locally manufactured and imported are safe’. He added that, ‘it is part of a wider legal framework, including the Food Safety Law and the Consumer Protection Law.’
Main provisions of the Draft Safety Law
The Draft Safety Law has not yet been published in the UAE. Our commentary in this article is based on a draft of the law sent by ESMA to the World Trade Organization, of which the UAE is a member. It is expected that the below mentioned provisions will be included in the final version of the law, and we will keep you updated as to any changes once the Draft Safety Law is enacted.
The Draft Safety Law applies to all products offered in the UAE, including the free zones. A product is defined as any product in final form intended to be used by or made available to customers, even in the context of providing a service. It must have been supplied in the context of a business transaction, with or without consideration. It includes new, used or reconditioned products (“Product”).
There are certain products which are specifically excluded from the scope of the Draft Safety Law, these are human and veterinary medicines, antiques and used products that require repair before being offered to the market (though otherwise used products are covered).
The Draft Safety Law relates to suppliers, which term includes (but is not limited to) manufacturers, agents and any professional member of the supply chain whose activities may affect the safety properties of a product (“Suppliers”). It is made clear in the draft Executive Regulations to the Draft Safety Law that the Supplier is liable for the products offered on the market, as well as any damage resulting from an existing or later defect.
2. Conformity assessment procedure
A Product is considered ‘safe’ under the Draft Safety Law if it:
a. conforms to the relevant legislation or technical regulations issued by ESMA; or
b. conforms to the approved standards which cover the safety aspects of the particular Product, or any other standards set by a recognised agency outside of the UAE (and approved by ESMA).
If neither a) nor b) applies to the Product, a report on the risk assessment of the Product must be submitted by a recognised agency to ESMA for approval.
A Supplier must:
a. not offer unsafe Products in the UAE;
b. ensure that Products remain safe; and
c. take the necessary preventative and remedial measures if Products become unsafe.
4. The Draft Executive Regulations
Amongst other things, the Draft Executive Regulations to the Draft Safety Law add detail to the conformity assessment procedures mentioned above. They also provide that the Ministry of Justice can nominate law enforcement officers who will have certain powers, e.g. the ability to conduct inspections and seize documents and Products.
As well reported in the news, if an unsafe Product is offered or is continued to be offered despite a decision to withdraw or recall it, or a seized Product is offered, then substantial fines and/or imprisonment of the person committing the unlawful act will apply.
The penalties are substantial as they include a fine of not less than one million dirhams and not exceeding three million dirhams and/or a prison sentence of not less than 6 months.
The Draft Safety Law’s scope is potentially clearly very wide, and purposely so we understand, given that it forms part of a wider legal framework which reflects the UAE’s ongoing commitment to protect consumers. Clearly, there are many commercial reasons why a manufacturer would want to ensure that they only offer safe products to the market. However, the Draft Safety Law adds an additional burden on manufacturers. To the extent they do not already do so, they must now follow defined procedures set out in the Draft Safety Law in order to ensure, and to demonstrate, their own commitment to consumer protection.