On 11 May 2009, the new toy safety Directive was adopted by the Council without further discussion. Given the significant number of toys imported from Hong Kong and mainland China to the EU, sellers should apprise themselves of this new law, which will replace the twenty year old Directive 88/378/EEC and will require substantive changes to be implemented by the toy industry.
The new Directive is expected to be published in the Official Journal in June 2009. It has been fast-tracked through the legislative procedure, due to the sensitive nature of the product range it covers and concerns which were magnified by a deluge of product recalls of dangerous toys in 2007.
The text adopted by the Council will impose new and more stringent safety requirements to cope with recently identified hazards, strengthen manufacturers' and importers' responsibilities for the marketing of toys and enhance market surveillance activities by Member States' enforcement authorities. The changes set out in the new toy safety Directive are substantial, with the introduction of new strict requirements and detailed clarifications of provisions of Directive 88/378/EEC. Details of some of these significant changes are set out below.
Definitions
The definition of "toys" is clarified in the new Directive as "products designed or intended, whether or not exclusively, for use in play by children under 14 years of age". The list of products not to be regarded as toys is expanded and clarified in Article 2 and Annex 1 of the new Directive and includes a number of products which are of interest to traders. The list of products includes further detail on existing product categories which would not fall within the scope of the Directive, such as certain collectors' items, providing that the packaging of such items should bear a visible and legible indication that is intended for collectors of 14 years of age and above. The new Directive also provides that decorative objects for festivals and celebrations will not be considered toys (and not just Christmas decorations as provided in Directive 88/378/EEC).
New categories are also added to the list of products not to be considered to be toys for the purposes of the new Directive, including: swimming learning devices for children such as swim seats and swimming aids; skateboards intended for children with a body mass of more than 20kg; and child-appealing luminaries.
Further definitions are elaborated upon in the new Directive, including "placing on the market" which means the first making available of a toy on the Community market. The definitions of different economic operators are also set out, including manufacturers, authorised representatives, importers and distributors. Amongst others, aquatic toys, functional toys, activity toys, chemical toys and olfactory board games are also defined.
New and higher safety requirements
Toys which are placed on the market in the EU will be required to comply with expanded essential safety requirements. These new requirements provide, amongst other matters, that the ability of users and, where appropriate their supervisors, shall be taken into account (especially toys intended for use by children aged under 36 months). Further "particular safety requirements" are set out in Annex II to the new Directive. These set out requirements for toys including their: physical and mechanical properties; flammability; chemical properties; and electrical properties.
The safety requirements have been updated to ensure high levels of protection and to take technical progress into account. Thus, in the field of electrical properties, technical progress has made it possible to allow the limit of 24 volts set in Directive 88/378/EEC to be exceeded.
Stricter rules will apply in relation to hazards caused by certain chemical substances and fragrances used in toys, as well as noise from toys. Safety requirements have been adopted to protect children against the risk of chemical substances in toys, in particular substances classified as being carcinogenic, mutagenic or toxic for reproduction (CMRs), allergenic substances and certain metals. The new Directive states that chemical substances in toys should also comply with Regulation 1907/2006 concerning the Registration, Evaluation, Authorisation and Authorisation of Chemicals (REACH). The new Directive also provides that limit values for the use of certain substances (e.g., lead, arsenic and organic tin) should be reduced. New essential safety requirements are set out regarding noise from sound-emitting toys and specific safety requirements are imposed to cover potential hazards from toys in food.
The new Directive also sets out appropriate conformity assessment procedures to be followed by the manufacturer and obligatory requirements for conformity assessment bodies and notifying authorities.
Warnings
The new Directive also complements and reinforces existing provisions on clearly legible warnings for toys, setting out a list of warnings to be applied to certain types of toys in its Annex V. These include a general requirement to display the minimum or maximum age of the user of the toy and, where appropriate, the abilities of the user, the maximum or minimum weight of the user and the need to ensure that the toy is used only under adult supervision. Further specific warnings and the wording to be used are provided for certain categories of toys, including: toys not intended for use by children under 36 months; activity toys; functional toys; chemical toys; aquatic toys; packaging for fragrances in olfactory board games, cosmetic kits and gustative games; and toys in food.
Warnings must be marked clearly, legibly and in a manner which is understandable to consumers on the toy, an affixed label or the toy's packaging and if appropriate, on instructions for use. Where the toy is sold without packaging due to its size, the warnings should be affixed to the toy itself. Warnings which will determine the decision whether or not to purchase the toy (e.g., minimum and maximum user age) must be visible prior to purchase (the warning must also be made visible prior to an internet sale).
Manufacturer and Importer responsibility
In accordance with existing legislation on the marketing of products, economic operators placing toys on the EU market will carry the responsibility for ensuring that that these toys comply with the new Directive. The new Directive acknowledges that certain tasks should be executed by the manufacturer (e.g., the Directive acknowledges that manufacturers may be best placed to carry out conformity assessments for toys), but it also sets out the obligations of authorised representatives, importers and distributors.
The aim of clarifying the different obligations of the various economic operators is to ensure that the obligations to ensure compliance with the legislation passes down the supply chain and to increase the traceability of toy products. For example, importers have an obligation to only place compliant toys on the EU market and to ensure that the appropriate conformity assessment procedure has been carried out by the manufacturer. Importers are also obliged to ensure that toys are accompanied by instructions and safety information in a language or languages easily understood by consumers (as determined by the Member State concerned).
Market surveillance and safeguards
The new legislation reinforces market surveillance requirements for toys, strengthening the possibilities for action by market surveillance authorities. A procedure is to be introduced to compliment existing safeguards, to inform interested parties of measures taken with regard to toys which present a health and safety (or other public interest) risk.
Member States will be required to implement the Directive within 18 months of the date of its publication in the Official Journal, i.e., before January 2011. Certain transitional periods are provided for to ensure that toy manufacturers and importers, amongst others, have sufficient time to adapt to the new requirements. Thus, for two years after the entry into force of the new Directive, toys which comply with the current legislation (Directive 88/378/EEC) may be placed on the market. In the case of the new chemical requirements, a four-year transitional period is provided for, to ensure that harmonized standards can be developed to ensure compliance.
