Dangerous products: what are your rights?

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[This is the original text of an article published in The Guardian under the title: ‘Dangerous business: what to do if a product you use has been recalled’.]

Overheating Samsung Galaxy Note 7 phones are just the latest in a never-ending stream of products released that aren’t safe for use: from exploding car airbags to Whirlpool tumble dryers that catch light.

These items have all necessitated product recalls but it can be a messy, long drawn-out process that is unlikely to catch all the offending products in time to prevent inconvenience, injury or even death.

For example, the exploding airbags supplied by Japan’s Takata to multiple car manufacturers across the globe necessitated one of the largest product recalls in history. It began in 2008 and is still ongoing, affecting 100 million airbag inflaters in more than 40 million cars. Globally, the death toll connected to Takata airbags stands at an estimated 16 people.

While recalls are rarely on this scale they’re an important means of safeguarding consumers from dangerous ‘white goods’, domestic electrical appliances such as tumble dryers, washing machines and fridges. Hence, there has been much anger and surprise at Whirlpool’s decision (it owns the Hotpoint, Indesit and Creda brands), to recommend consumers continue using some dangerous models before they’re repaired.

In contrast London Fire Brigade has recommended customers stop using Hotpoint, Indesit and Creda tumble dryers made between April 2004 and September 2015. Indeed, it is campaigning to make white goods safer.

According to an early day motion tabled in October by Andy Slaughter, Labour MP for Hammersmith, the London Fire Brigade has attended over 2000 incidents since 2011 to tackle fires involving white goods, with an estimated cost to the public purse of over £118 million and “devastating consequences” for those involved.

So what are product recalls?

Product recalls are essentially safety alerts issued by a manufacturer, importer or retailer and can either be issued on a voluntary or compulsory basis by a ‘Market Surveillance Authority’ (MSA), which monitors and enforces legal safety standards on consumer products. In the UK the bulk of this work is undertaken by Trading Standards departments.

When issued on a voluntary basis the manufacturer admits the product is potentially dangerous and that it may present a hazard to consumers. So, as a precautionary measure, they’ll usually recall the product by issuing a recall notice to inform customers of the batch number, product code and model of the item concerned. In most cases, products will either have to be returned to the store or distributor who will organise for the repair or replacement of the item.

If agreement can’t be reached then compulsory measures are taken by Trading Standards, and can include one or more of the following:

  • a ‘ Requirement to Warn’ the public that it may present a hazard when used under certain circumstances;
  • a ‘Requirement to Mark’ the product with a warning that it may present a hazard;
  • a ‘Suspension Notice’, which can be issued, temporarily removing the product from sale while safety tests are carried out;
  • a ‘Recall Notice’. This is issued when a product is already on the market and there is reasonable evidence it is dangerous;
  • a ‘Withdrawal Notice’. This is the permanent withdrawal of a dangerous product from the market.

If the product is sold in more than one EU state, the UK authorities must also notify Brussels so that the product can be placed on RAPEX, the European rapid alert system for dangerous products. It ensures that information about dangerous products withdrawn from the market and/or recalled from consumers anywhere in Europe is quickly circulated between Member States and the European Commission, so that appropriate action can be taken everywhere in the EU.

The problem for consumers is that there isn’t any central database where you can go to find out about all the products that have been recalled. According to Gavin Reese, a Partner at law firm RPC: “There are currently over 30 web sites that list product recalls including the Chartered Trading Standards Institute, RAPEX and Electrical Safety First. It is considered that consumers and businesses alike would be much better served if there was a central system that was easy to follow, which enabled both consumers and businesses to know what procedure to follow with recalling a product and what products have been recalled.”

Worryingly,  resources to enforce standards have also been cut: a spokesperson for Electrical Safety First told The Guardian: “We are extremely concerned at the impact of Trading Standard staffing cuts, which we believe will severely impact on consumer safety. It is particularly ironic that this essential service is being decimated – with staff cuts totalling 53% since 2009 – at a time when there have been a host of high-profile product safety scandals, from exploding hover boards to tumble-dryer fires.”

Food recalls

Food recalls are handled by the Food Standards Agency (FSA) in England & Wales
and by Foods Standards Scotland (FSS). In 2015 they were together notified of and
investigated 1,514 foods, feed and environmental contamination incidents across the UK. The four largest contributors to the total number of recorded incidents in 2015 were: Pathogenic micro-organisms, such as salmonella, (18%); allergens (14%), chemical contamination (12%); and residues of veterinary medicinal products (8%).

Meat and meat products (other than poultry) were the most common food type (254 incidents), followed by shellfish (107), fruit and vegetables (97), cereals and bakery products (87) and milk and milk products (70).

If you do injure yourself using a consumer product or become ill from consuming a foodstuff you should contact the seller/manufacturer of the product and notify them of the problem.

You can also contact other agencies responsible as MSAs for the relevant area – such as, Trading Standards, Electrical Safety First or the relevant local authority (in respect of alleged food poisoning) who can carry out their own investigations.

Legal rights

As for your legal rights, Gavin Reese from RPC explains: “Depending upon when the item was purchased, you can either bring a claim under the Sale of Goods Act 1979 (for items purchased prior to 1 October 2015) or under the Consumer Rights Act 2015 (for items purchased after 1 October 2015) on the basis that the goods are not of satisfactory quality and/or fit for purpose. In addition, it is necessary for the product to carry appropriate warnings about the use of the product or, in relation to food, its ingredients. Failure to provide either warnings or confirmation of the ingredients which give rise to injury can give rise to a civil claim for damages.”

If you don’t take a product back following a recall, or allow it to be repaired, and are subsequently injured by the fault that you were notified about Reese states that you’ll not be entitled to make a claim in relation to that injury. “However, if you sustain an injury as a result of a different fault which is unconnected to the notified fault, even if you refuse to return the product in relation to the notified fault, you may then be entitled to make a claim,” he adds.

Nevertheless, while around 400 products are recalled each year, only 10-20% are returned by customers with many remaining unaware that certain products are in their homes and are potentially unsafe.

Therefore, Electrical Safety First, which specialises in consumer protection and product safety, advises consumers to always register their electrical appliances at this website: ‘Register My Appliance’. (http://www.registermyappliance.org.uk)

Useful websites to check for recalls

Here are some useful sites to check for recent product/food recalls:

For all products:

Chartered Trading Standards Institute  (http://www.tradingstandards.uk/advice/advice-recall-list.cfm)

For electric goods:

Electrical Safety First (http://www.electricalsafetyfirst.org.uk/product-recalls/)

For non-food products:

EU Rapid Alert System for dangerous non-food products (RAPEX)  (http://ec.europa.eu/consumers/consumers_safety/safety_products/rapex/alerts/main/?event=main.search)

For foods:

Food Standards Agency (FSA) (https://www.food.gov.uk/enforcement/alerts)

Food Standards Scotland (http://www.foodstandards.gov.scot/news-events)

The EU Rapid Alert System for Food and Feed (RASFF)

(https://webgate.ec.europa.eu/rasff-window/portal/?event=notificationsList&StartRow=1)

For cars and vehicles: 

Driver & Vehicle Standards Agency
(http://www.dft.gov.uk/vosa/apps/recalls/default.asp)

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