Supporting trading standards within the current product safety regime In this feature l expertise l faulty goods l product recall Perfect recall Jonathan Kirk and Cameron Crowe consider best practice for trading standards when dealing with cases involving product safety T here are few more important and current areas of concern within trading standards than product safety. The tragic events of Grenfell Tower have served to bring into sharp focus the need for effective standards, oversight and if necessary enforcement. But, while there are sensible calls for our current product safety regime to be overhauled including from CTSI policy director, Adam Scorer what tips may assist those with the difficult responsibility for product safety within the existing regime? the current product safety regime The responsibility for monitoring and enforcing product safety iscurrently split between nearly 200 local authorities, all with ever-diminishing budgets, a plethora of legislation to enforce, and aninevitable need to prioritise what can realistically be achieved. Decision-makers are being forced to decide between proactive market surveillance and reactive disruption or enforcement in relation to knownbreaches of a vast array of legislation, from underage sales todoorstep crime. Additionally, trading standards officers working within product safety are seemingly required to become experts on a variety of products, sectors, standards and regulations, while pitting that expertise against big business. There is, in short, a significant imbalance. While we cannot seek to cover every product safety issue that arises for trading standards, we can address certain common problems with experience gleaned from cases we have undertaken. product recall expertise The tragedy at Grenfell Tower has brought into sharp focus the need for effective standards, oversight and enforcement It may sound trite, but it is perhaps unwise to perform brain surgery when you are not a brain surgeon. Similarly, it is unwise for trading standards officers to undertake assessments of technical, electrical and engineering issues unless they have the relevant expertise. This problem is even more acute when many producers can turn either to in-house or a body of external experts, who may be under commercial pressure or be closely associated with the development of products with consequent concerns about their independence and objectivity. The solution in our view is to use experts to assess issues, particularly in relation to: 1) Technical analysis 2) Statistical analysis 3) The practicalities of recall at least in large-scale cases This approach gives a solid evidential foundation to inform appropriate action. It is also likely to avoid potential criticism from producers and onlookers, either that trading standards simply accepted evidence produced by businesses, or made decisions without being sufficiently informed. It should also be remembered that section 27A of the Regulatory Enforcement and Sanctions Act 2008 (RESA) permits a Primary Authority to charge such a fee as the authority considers to represent the costs reasonably incurred by it in the exercise of its functions under RESA. In our opinion, the function of advising a business on product safety issues may well require independent technical evidence. In such austere times, Primary Authorities ought to be robust in charging businesses for obtaining independent technical expertise. product recall statistics The European RAPEX early warning system while undoubtedly of considerable benefit has the assessment of probability of harm at its core. This can lead to an unrealistic overall assessment of the actual risks associated with the use of a dangerous product. The probability of individual events occurring can be aggregated and can result in certain relevant factors being overlooked, for example multiple deaths from a single incident due to the environment in which a product is frequently used. Accordingly, it is important to be cautious about statistical analysis, because it is only one part of the risk assessment. It may be appropriate to seek expert opinion in certain circumstances, but it is always appropriate to place the risk within a context of common sense and to remember that harm can be more than death or serious injury in cases involving product safety. Consider the fire caused by the faulty tumble dryer in a flat in Shepherds Bush at the end of August 2016. Fortunately, there were no deaths or serious injuries, but there was significant property damage and disruption to the lives of the occupants and the locality, as a well as environmental damage, which are all important factors to bear in mind. The product safety regime is struggling to cope primary authority or enforcer? Officers working within product safety are required to become experts on a variety of products, sectors, standards and regulations The duty of a Primary Authority under RESA is to give advice and guidance.1 The duty of authorities under the General Product Safety Regulations 2005 is to enforce the regulations within their area.2 There is genuine concern from consumer groups about the potential failure of Primary Authorities to distinguish between enforcement duties and guidance given under the Primary Authority scheme. It is perhaps obvious that an authority that has played an important role implementing a companys due diligence system will find it more difficult to take enforcement action, when that will inevitably shine a light on those agreed systems. It is essential to separate the two duties and keep them robustly independent from each other. Trading standards services should carefully document objective enforcement decisions to avoid the suggestion of a conflict of interests. A practical step that can be taken in appropriate circumstances is to consider asking another authority to decide whether to take enforcement action when the issues of conflict arise.3 Struggling to cope We believe that the product safety regime is struggling to cope. The problems identified above which are far from exhaustive must also be placed in the context of shrinking budgets and limited resources, which inevitably places even greater pressure on the system. The thoughts outlined above are, we suggest, no more than a sticking plaster for a system that needs significant attention. The best solution to these problems and, in our view, a host of other problems that need more room to discuss than this article allows is to establish anational agency, properly funded and, to quote Scorer, filled with abody of trading standards professionals with the expertise, in order that we have a product safety regime thats fit for purpose and lives up to itsname. 1 Section 24A as amended by the Enterprise Act 2016 2 Regulation 10 of the General Product Safety Regulations 2005 3 Section 101 of the Local Government Act 1972 Credits Jonathan Kirk QC and Cameron Crowe are barristers at Gough Square Chambers. Images: istock.com / junce; istock.com /aquir To share this page, in the toolbar click on You might also like Grey area October 2017