Product Safety and Consumer Protection

DOIhttp://doi.org/10.1111/j.1468-2230.1995.tb02005.x
Publication Date01 Mar 1995
AuthorPeter Cartwright
LEGISLATION
Product Safety and Consumer Protection
Peter
Cartwright
*
Whether it is appropriate to use the criminal law to protect consumers from unsafe
products has long been the subject of debate.’ It could be argued that the criminal
laws which prohibit the sale of unsafe products are examples of regulatory
offences and that such crimes are ‘not criminal in any real sense.’2 Such offences
usually do not require proof of
mens
reu
and are sometimes seen as more
concerned with results than with values. On the other hand, there is evidence to
suggest that the public regards some regulatory crime as being as serious as
mainstream violent crime.3 There seems to be broad consensus in the UK that
criminal sanctions have a role in this area, and since
1961
various statutes have
used this method to control dangerous products.
The latest legislation to deal with unsafe products is contained in the General
Product Safety Regulations 1 9944 (hereafter ‘the Regulations’) which implement
Council Directive 92/59 (hereafter ‘the Directive’). The UK has had general
criminal legislation on product safety since 1987, when section lO(1) of the
Consumer Protection Act introduced a general safety duty (see below) for
consumer goods
.5
Some Member States, however, had no criminal measures,
while others adopted horizontal measures with different levels of protection. This
disparity created barriers to trade and distorted competition within the internal
market, leaving the Community to adopt, in the new Directive, a requirement for
all Member States to provide a minimum standard of protection. Since it is
extremely difficult to adopt community legislation for all existing and future
products, the solution adopted was a broad and horizontal legislative framework,
and although the Directive is directed at the free movement of goods, it seeks also
to ensure a high level of protection of health and safety as required by Article
100a(e) EC. The Regulations amend the existing UK law to ensure compliance
with the Directive.
The ‘producer’ and the ‘product’
The main obligation is in Regulation 7 which states that
‘No
producer shall place a
product on the market unless the product is a safe product.’ ‘Producer’ is given a
wide definition under Regulation
2(
1). Where the manufacturer is established in
*Department of Law, University of Wales, Aberystwyth.
I
would like to thank Sue Arrowsmith of the University of Wales, Aberystwyth, and Geraint Howells of the
University of Sheffield for their helpful comments on earlier drafts
of
this article.
1
See eg Ramsay,
Consumer Protection
(London: Weidenfeld and Nicolson, 1989) pp 470-474, and
Douglas,
Risk Acceptability According to
the
Social Sciences
(London: Routledge, 1985) ch
1.
2
Sherrar
v
De
Rutzen
[1895]
1
QB
918, 922
per
Wright
J.
3 Braithwaite, ‘Challenging Just Deserts: Punishing White-collar Criminals’ (1982) 73 JCLC 723.
4
SI
1994
No 2328.
5
The 1987 Act also contained civil provisions which implemented the Directive
on
Liability for
Defective Products (85/374/EEC). The criminal law provisions went further than the EC then
required.
0
The Modern Law Review Limited
1995
(MLR
58:2,
March). Published by Blackwell Publishers,
108
Cowley Road, Oxford OX4
IJF
and 238 Main Street, Cambridge, MA 02142.
USA.
222

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