While the recent spate of deaths in the mining sector has caused regulatory upheaval, it has recently been recognised that there are around 780 Australians are dying each year from consumer product safety related issues. Many of those consumer products may be largely unregulated.
Quad bikes, button batteries, unsafe sleeping products and interconnected devices are among the top concerns for the nation’s regulators.
Using new data the ACCC estimates the annual cost of injury and death caused by unsafe consumer products is at least $5 billion and could be much more.
Excluding motor vehicle accidents, there are around 780 deaths and around 52,000 injuries per year from consumer products that many Australians have in their homes.
“Many people are surprised to learn that it is not illegal to sell unsafe goods in Australia,” Mr Sims said.
“There is no law that says goods have to be safe, but there should be.”
Examples of harm include electrocution from faulty appliances, burns from ignited flammable clothing, choking on children’s toys and suffocation in cots and beds.
The ACCC says there is a need for the Government to adopt a General Safety Provision obliging companies to take reasonable steps to avoid supplying unsafe goods.
A ‘general safety provision’ under law imposes a statutory obligation on a supplier not to supply unsafe goods to consumers. Currently, a supplier may only be exposed to consumer claims for damages and other remedies after an injury has been caused by faulty goods sold.
“For consumers, a General Safety Provision will give greater confidence that the goods they buy are safe. And for business, it will create a level playing field so that those firms who deliberately supply cheap but unsafe products do not derive a financial benefit,” Mr Sims added.
‘We are continuing our work in preventing button batteries ending up in the hands of our infants and children,” Mr Sims said.
“Each week too many Australian children present to hospital as a result of button batteries, which can be deadly. This must change” Sims said.
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Other 2019 ACCC Product Safety Priorities include preventing injury and deaths to infants caused by unsafe sleeping products and improving the safety of products that are sold online.
Corrs Chamber Westgarth spoke recently regarding the current position in Australia. They say there are various provisions in the Australian Consumer Law that address product safety issues. In particular:
- “Suppliers of goods to Australian consumers have a statutory obligation to ensure that the products they supply comply with mandatory safety standards applicable to that type of product. For example, there is a mandatory safety standard for children’s’ toys that the toy itself, and any of its removable parts, must not be smaller than a certain size so as to minimise choking risks.
- A supplier of a ‘consumer good’ (which is a good intended to be used, or which is of a kind ordinarily used, for personal, domestic or household use or consumption) has an obligation to notify the ACCC within two days of the supplier becoming aware of the death or serious injury or illness of any person that the supplier considers was caused, or may have been caused, by the use or foreseeable misuse of the consumer good. Depending on the circumstances, a voluntary recall (by the supplier) or compulsory recall (by the responsible Minister) may be required.
- Goods that are unsafe may contravene statutory guarantees created by the ACL, such as the guarantee as to acceptable quality, which expressly requires goods supplied to a consumer to be safe.
- Individuals (whether or not they purchased the good in question) are able to bring claims directly against the manufacturer of a good for loss or damage the individual suffers as a result of the good having a safety defect.
But they say “while there is good logic behind the introduction of a general safety provision, its introduction raises some uncertainties that policymakers and suppliers need to grapple with.”
- Would the provision apply to all participants in the supply chain or only the manufacturer or importer of the product? The meaning of ‘manufacturer’ in the ACL is very broad and can include not just the person that made or assembled the goods but also an importer, a person that holds themselves out as the manufacturer of the goods and a person that allows their name, brand or mark to be applied to the goods.
- By what standard is a supplier required to determine whether a particular product is ‘safe’ or ‘unsafe’?
- To what extent (if any) must a business conduct testing to ensure the safety requirement is satisfied, would there be any ‘presumption of conformity’ as is the case under the UK product safety laws, and would a supplier be entitled to rely upon assurances provided by the manufacturer?
- If the testing demonstrated that the product was safe, what impact does that have on liability for injuries, illness or death that the product may subsequently cause?
The ACCC say that additional focus for the ACCC in 2019 will be examining potential consumer product safety hazards associated with interconnected and smart devices.
“Our challenge in product safety is to anticipate these future risks before they arise and make sure the regulatory framework is fit for purpose.”
The full list of the ACCC’s 2019 Product Safety Priorities is available at: Product safety priorities
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