A recent case before the Liverpool County Court provides guidance on the test to determine what constitutes a 'defective' product under the Consumer Protection Act 1987. The ruling included an assessment of whether an ingredient is sufficiently safe and the role of safety and risk reduction procedures in determining whether a product is defective.

The case, Buckley v Henkel Ltd,(1) was brought by a claimant who had purchased hair dye manufactured by the defendant. Instructions included with the dye highlighted the risk of an allergic reaction and suggested that consumers perform a 'patch test' to determine their own sensitivity. The claimant did not react to a patch test, but suffered a severe reaction after using the product on her hair. She alleged that the product was defective within the meaning of the Consumer Protection Act on the basis that:

  • it contained a chemical, para-toluenediamine (PTD), that was known to be a potentially potent allergen; and
  • the patch test was defective because it did not enable her to determine reliably whether she was allergic to the product or any of its ingredients.

The judge rejected the claim on both grounds, holding that the inclusion of PTD did not make the product defective. A consumer is not entitled generally to expect that certain products will be completely safe, particularly where the risks are highlighted. The instructions included with the dye made it clear that there was a risk of an allergic reaction and provided several warnings and suggested precautions. Further, PTD was – and continues to be – permitted under the relevant EU directives.

With respect to the patch test, factors relevant to the judge's decision that it was not defective included that the instructions indicated that the test reduced the risk, but did not eliminate it, and stated that a negative test did not mean that no allergic reaction would occur. The judge would not conclude that a product was made defective because a procedure designed to improve its safety was not completely effective when it did not purport to be.

For further information on this topic please contact Andrew Austin at Freshfields Bruckhaus Deringer LLP by telephone (+44 20 7936 4000), fax (+44 20 7832 7001) or email (andrew.austin@freshfields.com). The Freshfields Bruckhaus Deringer website can be accessed at www.freshfields.com.

Endnotes

(1) County Court (Liverpool) November 25 2013.