FOR YEARS, ONE of the most basic staples of a school pencil case was also one of the most hazardous: the eraser.

“There were different problems created by different toys used by children,” explains Alexander Schuster, an assistant professor of law at Trinity College Dublin, “including these eraser rubbers that you use for your pencil in school that looked like sweets which some young children were tempted to eat and choked to death as a result.”

Schuster, who specialises in EU law and product liability, continues: “That was a huge trans-European problem. Europe more or less nipped that in the bud by bringing in the toy safety regulations and dealing with products which were killers so far as children were concerned.”

In countries like the US, with less uniform obligations on manufacturers than in the EU, unsafe products lead to hundreds of thousands of injuries and deaths every year. In 2020, an estimated 198,000 toy-related injuries were treated in the US, with nine fatalities involving children under 12.

Globally, product manufacturing industries usually self-regulate, picking and choosing which industry regulations to follow and which ones to interpret liberally. The chair of the US Consumer Product Safety Commission recently said that American consumers “often think because it’s on the shelves, it’s been pre-approved by the government, which is not the case”.

Standardising safety

While EU intervention in its member states’ industries has added unpopular red tape and bureaucracy in the past, such as with the fishing sector, the EU-mandated pan-European standardisation of product safety standards on the other hand has arguably been a huge success.

“Taking it at a global level, the EU area would, in general, be known for the highest safety standards and the highest level of protection for consumers in terms of global trading zones” says David Conlan Smyth, chair of the EU Bar Association of Ireland, a specialist bar association for Irish barristers who practice in the area of EU Law.

He adds:

It has always been the objective of the European Union to ensure the highest possible protection of consumer rights through the adoption of various directives and legislation at the EU level.

In Ireland we have grown accustomed to this, but the fact that products sold in Ireland must be safe to use, is not something to be taken for granted in a global context. If products are unsafe they can be banned from sale in the Irish market under the European Communities (General Product Safety) Regulations 2004.

“The European philosophy on product safety is about prevention rather than prohibition however,” explains Alexander Schuster of TCD. “The EU regulates product safety mainly by something called a framework directive, which is a general piece of legislation. The main obligation is for manufacturers to only place products that are safe on the marketplace.”

Ireland has benefitted from the EU’s legally-enforced consistency of standards in product safety since a set of regulations transposing EU law into Irish law were brought forward in 2004. A key part of that legislation was the establishment of an enforcement authority to overlook the area of product safety, now the National Standards Authority of Ireland (NSAI) and the Competition and Consumer Protection Commission (CCPC).

“The CCPC have a wide range of powers they can use against manufacturers who have placed unsafe products on the marketplace” says Schuster.

If a manufacturer doesn’t comply, the CCPC will step in and can either take criminal proceedings against them or go to the High Court to get an injunction to take the product off the market.

Authorities like the Irish CCPC in all 27 member states work in conjunction with each other to ensure compliance with the product safety standards in the single market.

“If [a product] creates problems in more than one EU country there is an obligation to notify the European commission in Brussels under the RAPEX system” says Schuster. “Essentially that’s a safety body embedded within the European Union, where if there’s a problem with a product on a pan-European or a cross-border European basis, it alerts all the authorities in all 27 European states and they can take requisite action if on investigation they find that the same product is also causing a problem.”

Manufacturers must display their compliance to the European directives with a CE mark on their products. Any product that is covered by an EU Directive must carry a CE mark. EU regulations even describe how the CE marking should be displayed on a product, including that it must be clearly affixed (glued, stuck or embedded) permanently to the product itself, or appear in the instruction manual or packaging of the product if impossible to affix to the product itself.

The bonus for consumers

While clearly the burden on manufacturers to comply with these regulations is large, the benefits to consumers of the enforced safety standards in the products we buy is significant. Products with extra risks such as bicycle helmets, reflective jackets, safety harnesses and even chemical hazard suits have very specific minimum safety requirements under EU law to ensure no product legally sold in the EU imposes risk.

Similarly, all electrical products, within certain voltage limits, sold in Ireland must meet specific safety standards as per the directives like the EU Low Voltage Directive. These safety standards can look like hazard warnings on products like ‘not for use in bathrooms’ or more robust technical standards of safety in relation to the product’s performance.

Other household items like furniture are also covered by the EU’s safety standards. All furniture must only be manufactured and repaired using materials, including coverings, foams and fillings, that meet the EU’s fire safety standards. Furniture products must pass the ‘cigarette test’: that the furniture’s materials are not likely to go on fire by a lit match or a cigarette.

An industry that EU law has granted enhanced consumer safety to a significant extent is the toy industry. Again, only toys meeting the minimum safety requirements at EU law may be sold in Ireland and other member states. As well as carrying the CE mark, toys sold in the EU must not shatter or break easily, must not be made of materials that burn easily and must be made of non-toxic materials. Toys that contain small parts must be marked as unsuitable for children under 36 months, and rideable toys such as children’s bikes and go-karts must have adequate breaks and lighting features if usable on public roads.

What can you do if a product is unsafe?

If you discover that a product is unsafe or looks like it has a fake CE mark you have rights under Irish law with the Sale of Goods and Supply of Services Act 1980. This means if the product is a once-off flaw, and the flaw is covered by the legislation, you are usually entitled to a refund or replacement.

If you contact the manufacturer or retailer and the flaw seems inherent to the product, contact the CCPC about your concerns. Their consumer helpline is open 9am to 6pm Monday to Friday at 01 402 5555.

This work is co-funded by Journal Media and a grant programme from the European Parliament. Any opinions or conclusions expressed in this work are the author’s own. The European Parliament has no involvement in nor responsibility for the editorial content published by the project. For more information, see here.