Product recall requirements

Recall criteria

What criteria apply for determining when a matter requires a product recall or other corrective actions?

The NCC requires a supplier to contact it when deciding about the most appropriate strategy to deal with a prospective recall. It is required by the NCC Recall Guidelines that a supplier should notify the NCC when the supplier decides to undertake any one of the following actions to mitigate a product safety-related hazard:

  • calling back or withdrawing products from the market or distribution chain;
  • requesting consumers or other suppliers to return products for refund, replacement or modification, or to contact the supplier to arrange for a replacement product or part to be sent to the consumer;
  • sending a service agent to a person’s home or place of business to repair or modify a product; or
  • making arrangements for a service agent to repair or modify a product when it is next presented for servicing.
Consumer warnings

What are the legal requirements to publish warnings or other information to product users or to suppliers regarding product defects and associated hazards, or to recall defective products from the market?

In terms of section 58 of the CPA, the supplier of any activity or facility that is subject to any risk that could result in serious injury or death must specifically draw the fact, nature and potential effect of that risk to the attention of consumers in a form and manner that meets certain standards including the use of plain language. This obligation also applies to a supplier of any risk or facility that is subject to any risk of an unusual character or nature, or risk of which a consumer could not reasonably be expected to be aware of, or which an ordinarily alert consumer could not reasonably be expected to contemplate, in the circumstances.

A person who packages any hazardous or unsafe goods for supply to consumers must, in terms of section 58(2) of the CPA, display on or within that packaging a notice that meets certain standards, including the plain language and transparency requirements of section 22 of the CPA, and any other prescribed standards, providing the consumer with adequate instructions for the safe handling and use of those goods. A person who installs any hazardous goods for a consumer, or supplies any such goods to a consumer in conjunction with the performance of any services, must give the consumer the original copy of any document required in terms of section 58(2), or any similar document applied to those goods in terms of another public regulation.

In terms of the NCC Recall Guidelines, a supplier undertaking a voluntary or compulsory safety-related recall is also responsible for goods supplied outside South Africa and should, therefore, notify in writing any person outside South Africa to whom the supplier has supplied goods, that the goods are subject to a recall. The notification must draw attention to the recall and a defect or dangerous characteristic in the goods or the failure thereof to comply with a prescribed consumer product safety standard. Where a supplier has complied with the notification requirements under section 60(1) of the CPA (ie, in terms of any applicable industry-wide code of practice), it must provide a copy of the notice to the NCC within 10 days of providing the notice.

Recall notices

Are there requirements or guidelines for the content of recall notices?

According to the NCC Recall Guidelines, a product-related communication to consumers must include a clear product description, including the name, make and model, any distinguishing features, batch or serial numbers and the dates when the product was available for sale; a picture of the product; a description of the defect; a statement of the hazard; a section explaining what immediate action the consumer is to take; and relevant contact details. A recall notice should not contain the words ‘voluntary recall’.

Media

What media must be used to publish or otherwise communicate warnings or recalls to users or suppliers?

The NCC Recall Guidelines are not prescriptive as to any particular communication methods, but a supplier should place information relating to a product recall prominently on its website. In terms of the NCC Recall Guidelines, it is important to match the communication to the consumer and communications regarding a recall should, therefore, be directed to the particular consumer demographic for the recalled product using an appropriate communication method.

Time frame

Do laws, regulation or guidelines specify targets or a period after which a recall is deemed to be satisfactory?

There is at this stage no provision prescribing a specific target or period after which a recall is deemed to be satisfactory. The NCC, however, requires that it be furnished with progress reports on the recall. In terms of the NCC Recall Guidelines, a recall can be closed and a final report submitted to the NCC ‘when a supplier has taken all reasonable steps to effectively mitigate the risk posed by the unsafe product’. The regulatory oversight by the NCC ceases and the supplier is no longer required to promote the recall.

Repair and replacement

Must a producer or other supplier repair or replace recalled products, or offer other compensation?

In terms of sections 55 and 56 of the CPA, the consumer may, within six months of the delivery of the goods, require the supplier to repair the goods or may return to the supplier goods that are not reasonably suitable for the purposes for which they are generally intended, are not of good quality, in good working order or free of defects, or will not be usable and durable for a reasonable period of time. To the extent that recalled products fail to comply with the provisions of sections 55 and 56, a producer or other supplier can be required to repair or replace recalled products.

Penalties

What are the penalties for failure to undertake a recall or other corrective actions?

Save for the powers of recall granted to the Chief Executive Officer of the board of the National Regulator for Compulsory Specifications (Chief Executive Officer NRCS) arrangements in terms of the CPA are currently voluntary. The authorities can also resort to the powers discussed in question 3.