If a business supplies goods or services which have caused death or serious injury or illness, then it must submit a mandatory report within 2 days of becoming aware of the incident to the ACCC (Australian Competition & Consumer Commission) Product Safety Australia section. This is a legal requirement under sections 131 and 132 of the Australian Consumer Law (ACL).
This requirement applies to all businesses in the supply chain of a consumer good or product related service. It includes businesses who import, manufacture, retail, install, clean, repair or assemble consumer goods. This requirement does not apply if the business must submit a mandatory report upon the incident to another specialist safety agency, such as for road vehicle accidents, deaths reported to a coroner, food-borne infectious diseases, incidents involving agricultural and veterinary chemicals, pharmaceuticals and medical devices.
The purpose of this reporting requirement is to provide the ACCC with an early warning of product safety issues so it can take preventative action. The report is confidential and not an admission of legal liability. If a business does not submit a mandatory report where a report is required, it may be found guilty of a criminal offence and be liable to pay either $3,330 for an individual or $16,650 for a body corporate.
The ACCC has now issued its latest update – Product safety mandatory reporting guideline – December 2021
These are select examples from the guideline:
Examples of injuries or illnesses which must be reported
- A person uses a blender to blend fruit and ice. The blender’s blade malfunctions and propels out of the blender and causes a laceration to the user’s cheek. The laceration requires stitches applied by a medical practitioner or a nurse.
- A person purchases paint to be used on the walls of their home. Upon opening the tin of paint, the person suffers a sudden onset of breathing difficulties, which require medical treatment from a medical practitioner or a nurse.
- While using a multi-purpose cooker, a person receives serious burns to their arm because the lid could not be fastened correctly. The person burned is a nurse, so they treat their own burn by running the skin under cool water, taking over-the-counter pain medication, and applying antibiotic cream and bandages to the affected area. If this person was not a nurse, it is likely they would have sought medical attention. This incident is reportable, as medical treatment would be required (even though in this case it was self-administered).
Example of injuries or illnesses which do not need to be reported
- A person purchases high voltage light bulbs and uses them in every room of their home. The person slowly develops irritated eyes and blurred vision believed to be caused by the light bulbs. Ailments that develop gradually rather than through a sudden onset are not acute and therefore do not require a mandatory report.
- A person diagnosed with eczema has an eczema outbreak after applying a moisturising lotion. The condition was pre-existing (that is, it existed prior to the incident). The incident does not require a mandatory report.
- Upon opening a toy from its packaging, small pieces of the toy propel outwards and graze a person’s eye, causing discomfort. The person is seen by a nurse who advises that the eye is clear of any foreign matter and that any discomfort will disappear over the following days. As the person examined did not receive any treatment, the incident would not require a mandatory report. If, however, the nurse applied eye drops, the incident would require a mandatory report because medical treatment was required.
Example of a product related service
A supplier installed vertical blinds at a customer’s home. The customer contacted the installer and told them that the vertical blinds got tangled and trapped their child’s hand, causing bruising and lacerations, which needed medical treatment.
This is a reportable incident by both the supplier of the vertical blinds (a consumer good) and the installer (a product related service).
The installer who provided the installation service for the vertical blinds is required to report the serious injury associated with the vertical blinds, regardless of whether or not the installer considers that the incident is related to a problem with the vertical blinds which is the responsibility of the supplier.
Examples where the business was fined for not reporting
ACCC v Thermomix In Australia Pty Ltd
In April 2018, Thermomix In Australia Pty Ltd (Thermomix) was fined a total of $4.6 million by the Federal Court for various contraventions of the ACL in relation to its Thermomix kitchen appliances.
A portion of this fine ($108,500) was in relation to a failure to lodge 14 mandatory reports within 2 days of becoming aware of the serious injuries caused by Thermomix kitchen appliances. Some of the mandatory reports were submitted a few days late and, in one case, a mandatory report was 3 years overdue. In each of the 14 incidents Thermomix users suffered severe burn injuries requiring some form of medical treatment.
Thermomix was aware that there was a potential risk of injury to users from the TM31 appliance’s lid lifting, which could result in hot food or liquid coming out from the mixing bowl and causing severe injuries to the user. Thermomix did not disclose this risk until several months later.
ACCC v Woolworths Ltd
In February 2016, Woolworths Ltd (Woolworths) was fined $3,057,000 million for knowingly selling unsafe goods. A portion of this fine ($57,000) was in relation to its failure to lodge 8 mandatory reports on time.
The court declared that Woolworths contravened the ACL in various ways, including by failing to report serious injuries on 8 occasions within 2 days of becoming aware that serious injuries may have been caused by their products.
The defects in Woolworths’ products caused several serious injuries. For example, when the handle of a deep fryer broke during use it caused burns from hot oil, and when a drain cleaner had a defective cap on the bottle, it caused chemical burns, including to a young child.
Further information (provided by the ACCC)
Businesses can find new mandatory reporting information and tools on the Product Safety Australia website, including a:
- quick guide that summarises obligations, making it easier for businesses to understand what they must do
- template notice that suppliers may use to help inform staff about processes for mandatory reporting
- questionnaire to help businesses ask relevant questions when reporting an incident
- flowchart to determine if an incident must be reported.
The ACCC is taking a more proactive approach towards educating and informing business owners and managers of their responsibilities under the ACL.
The latest update on – Product safety mandatory reporting guideline – December 2021 is important for everyone in a product supply chain: i.e. business owners who import, manufacture, retail, install, clean, repair or assemble consumer goods.
This guideline applies to everyone who becomes aware of the incident. An agent may submit a mandatory report on behalf of multiple suppliers associated with the same incident. For instance, an importer who distributes a product to agencies who on-sell to installers. If the installer becomes aware of an incident, they can notify the importer. The importer can report it on behalf of both themselves and the installer.
Businesses need to have a formal compliance function responsible for managing mandatory reporting requirements for product safety incidents. Quick action is required – incidents must be reported within 2 business days.
Customer service, marketing, product or sales teams must be charged with the responsibility of compliance.
The ACCC’s interest lies in being alerted to product safety issues. For this reason, by law compliance does not amount to an admission of legal liability.