Independent Retail Europe is concerned by a lack of clarity relating to the Toy Safety Directive (2009/48/EC).
There is a lack of consistency between the toy safety rules and the general product safety rules on what distributors should do in “isolated cases.” This is because the TSD is silent on the subject of isolated cases.
An isolated case is where a problem with only one sample of a product has been shown as the cause of a problem. In such a situation, a distributor may be unable to determine with certainty whether the source of this isolated case comes from the product itself, or from an inappropriate usage of this product by a consumer.
Under the existing toy safety rules, it would seem that to treat an isolated case, distributors should notify their competent authorities (in accordance with Article 7 (4) and chapter V of the TSD) rather than just contact the producer, as is the case for general product safety and allowed under the guidelines to the General Product Safety Directive. In accordance with the existing TSD rules, the Member State will then introduce a notification concerning the product in question under the RAPEX system, where an isolated case of a defective product has been found.
Downside of existing toy safety regime
The downside of using the RAPEX system for an isolated case is significant. Where a product is publicly named as problematic/dangerous via RAPEX, for an isolated case only, it may harm a producer financially. The producer may then seek damages from the retailer, who made a notification to the relevant competent authority before being absolutely certain of the origin of the problem, thereby souring the business relationship.
This situation does not occur under the General Product Safety Directive/guidelines, which are clear on how to deal with isolated cases. Under the general product safety rules, as mentioned above, a retailer only needs to contact the producer to warn that an isolated case has been found. The producer can then assess what follow up is necessary and proportionate. This is particularly useful where, for example, the producer can clearly identify the origin of the problem due to his knowledge of the technical specifications of the product or due to his experience of prior notifications from distributors. This avoids potential huge losses for either the producer or the retailer, which can arise from a public RAPEX alert (a disproportionate measure for such an isolated case).
In this context, the evaluation should look at whether a paragraph on “isolated cases” that repeats the general product safety rules could be added to the TSD. The objective is to clarify that, in an isolated case; distributors should only contact a producer, who can decide upon the next steps, rather than immediately entering into the RAPEX procedure. This clarification on what to do in isolated cases would be particularly helpful for the large number of SME distributors in the EU.
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