Toys, clothing among most commonly found dangerous consumer goods; update on revision of toy safety law
On 20 April 2009, the European Commission published its 2008 Annual Report on the operation of the Rapid Alert System for non-food consumer products (RAPEX). In 2008, the total number of measures taken by the Member States to stop unsafe products being placed on the market, and notified through RAPEX, was 1866, signaling a 16% increase over the previous year. Childcare articles (comprising both toys and children's equipment) topped the list, with electrical appliances and items of clothing also being among the highest categories of product found to be unsafe.
Hong Kong traders are likely to already know about the EU's RAPEX, the objective of which is to ensure that information about dangerous non-food consumer products, found in one Member State, is rapidly circulated among all the other national authorities and the Commission, with the aim of halting the supply of these products to consumers. This is the fifth annual report since RAPEX has become functional: in 2004, around 140 notifications had been registered, while in 2008 this number has grown more than 10 times (to 1866 notifications).
Of concern to Hong Kong sellers will certainly be the fact that during 2008, 59% of the RAPEX notifications indicated China (including Hong Kong) as the country of origin. This is an increase from 2007, when the figure for Chinese-origin goods was 52%. The Report stipulates that over the years, products of Chinese origin have been the most frequently notified through RAPEX. It acknowledges that this reflects a significant market penetration of Chinese-manufactured consumer products on the European market, and is the reason behind various projects, often in close cooperation with the Chinese government, to stem the flow of unsafe products from China. Such products are, moreover, a focus of action by market surveillance and customs authorities, so as to recover from the confidence crisis of 2007 (the notorious "summer of recalls"). In consequence, the Report's recognition, that there is no evidence to ascribe the growing number of notifications to the falling quality of products of Chinese origin compared to previous years, may come as - at least a partial - relief to Hong Kong sellers.
Be that as it may, the report makes for sombre reading, especially for sellers of commonly marketed consumer goods. While 26 of the 27 Member States, plus Norway, sent notifications through the RAPEX system in 2008, Germany, Spain, Slovakia, Greece and Hungary accounted for 50% of all notifications. The product categories most frequently notified via RAPEX were:
toys (498 notifications, or 32%),
electrical appliances (169 notifications, or 11%),
motor vehicles (160 notifications, or 10%),
clothing, textiles and fashion items (140 notifications or 9%)
and childcare articles and childcare equipment (89 notifications or 6%).
The five most frequently notified risk categories were injuries, chemical risks, choking, electric shock and fire. The notified toys, for instance, most frequently posed a risk of choking (due to the presence of small parts) and excessive chemicals (substances such as phthalates, lead and other heavy metals). Of the 1866 notifications, 1545 comprised so-called serious-risk notifications, of which 50% were dealt with by the authorities imposing compulsory preventive and restrictive measures (e.g., product bans, withdrawals, etc.). In most of the remaining cases, the economic operators themselves voluntarily took measures to comply with their consumer safety obligations.
The Report further highlights the workings of an extended Memorandum of Understanding between the EU and the Chinese Administration for Quality Supervision, Inspection and Quarantine (AQSIQ). The MoU includes the functioning of a RAPEX-China system, which allows the Chinese authorities to tackle the safety issue at source. From September 2006 to August 2008, AQSIQ investigated 599 notifications; in 51% of these cases, preventive or restrictive measures were adopted, either by AQSIQ or voluntarily by the Chinese manufacturer/exporter. Identification of the responsible Chinese companies remains the biggest challenge for AQSIQ in carrying out follow-up activities to notifications (in 154 of the 599 notifications investigated, the manufacturer could not be found). The 2008 Report can be accessed at: http://ec.europa.eu/consumers/safety/rapex/docs/rapex_annualreport2009_en.pdf
It is no coincidence that with the increased focus on consumer items hailing from China, the revision of the toy safety Directive has been urgently sought by the EU institutions, with a hard-hitting legislative text being (informally) agreed between the Council and the European Parliament at the end of last year.
The product scope of the agreed-upon Directive comprises products designed or intended, whether or not exclusively, for use in play by children under 14 years. The toy must be accompanied by instructions and safety information in a language easily understandable by consumers (as determined by the individual Member States). Importers will be obliged to carry out sample testing of toys with regard to the risks presented, investigate and keep a register of complaints, of non-conforming toys and of toy recalls, and keep distributors informed of such monitoring. There are also strengthened rules on warnings, both on packaging and on toys themselves.
As for chemicals, the limit values of certain metals, namely arsenic, cadmium, chromium VI, lead, mercury and organic tin, which are particularly toxic, and which should therefore not be intentionally used in those parts of toys that are accessible to children, should be set at levels that are half of those considered safe, according to the criteria from the Commission's scientific committee. The text further states that nickel in stainless steel has proven to be safe; consequently it is appropriate to provide that it can be used in toys. The Commission may, moreover, adopt specific limit values for chemicals used in toys intended for infants under 36 months, or in toys intended to be placed in the mouth. Additionally, substances that are carcinogenic, mutagenic or toxic for reproduction (CMR) categories 1A, 1B or 2 must not be used in toys, their components or their micro-structurally distinct parts (with only certain derogations allowed). The future Directive also contains a list of 55 restricted allergenic fragrances, including musk ambrette and treemoss extracts, and a list of 11 fragrances that can be used, but subject to labelling.
The risk of choking is also expressly covered: toys and their parts must not present the risk of asphyxiation as a result of airway obstruction, and certain toy packaging must be of such dimensions as to prevent it from causing airway obstruction if wedged in the mouth, pharynx, etc. As for noise, toys which are designed to emit a sound should be so designed and manufactured that the sound from them is not able to impair a child's hearing.
According to one Commission official, the Council is expected to formally adopt the revised Directive on 11 May 2009. Thereafter, it will be published in the EU's Official Journal (possibly in June), with Member States being required to implement the revised Directive within 18 months from then. This means that the new law's key provisions could begin applying throughout the EU by the end of 2010. Importantly, however, in order to allow toy manufacturers and importers sufficient time to adapt to the new requirements, there should be a transitional period of two years from the new Directive's entry into force, during which toys which comply with the old toy safety Directive (88/378/EEC) may be placed on the market. Also, in the case of the new Directive's chemical requirements, this period is four years so as to allow the development of the harmonised standards which are necessary to comply with those requirements.
