This is the fourth part in a series I'm writing on legal considerations for direct-to-consumer ecommerce brands operating in the UK, whether headquartered in the UK or abroad. The first post covered the Consumer Contracts Regulations (2013) and the Consumer Rights Act (2015). The second post covered the Data Protection Act (2018), which is the UK's implementation of the General Data Protection Regulation (GDPR) first initiated by the European Union.
This final post is about the UK's product safety regulations. Not to scare you, but this is something you really want to get right, because the worst-case-scenario of this could be serious injury or death to someone, not to mention the end of your business or even jail time if you've been negligent. The good news is that the UK's laws in this area are fairly simple for most product, common-sensical, and overlap with those of the European Union.
There are two main parts to UK product safety laws: the general requirements which apply to all products, and then specific laws applying to certain product categories.
Standard caveat: I'm not a lawyer and have no legal training. What I do have is over 12 years experience in ecommerce in the UK and elsewhere, as a brand owner and operator, and more recently as the owner of a 3PL specialising in foreign ecommerce sellers in the UK. On the downside, that means you can't take anything here as legal advice, and you should do your own research to complement reading this article. On the plus side, what I write is readable and born from real life experience.
I became a father for the first time in 2023, and that's made me significantly more aware of matters of product safety. At first, the concern was choking hazards, and chemical exposure given my son's desire to put anything he could get his hands on into his mouth.
Lead dust and paint was a particular concern, given its historical presence in homes and public spaces, including in items like old toys and books, and the fact that some countries even today still haven't banned lead paint (the UK banned it relatively late, in 1992), so it can potentially sneak in to product manufacturing.
As my son moved on from the "taste everything phase" to the "poke, push and grab phase", new hazards emerged like cables, scissors and pretty much anything which could be pulled from a raised surface. As he's gradually learned to crawl and walk, it's become ever harder to keep an eye on him, and even my bed became dangerous (falling off it!).
The reason I mention all this about my son's heart-attack-inducing escapades is that it taught me something important. While a situation or product may not seem at all a safety concern for you, that doesn't mean it can't be extremely dangerous for someone else. And that certainly applies to the products your brand produces.
Your own vision is inherently impaired when it comes to considering safety risks to others. Which is one reason why safety regulations exist.
The main thing to say about the UK's product regulations is that if no safety regulations apply to your specific product type, then you must assume you're covered by the requirements of the General Product Safety Regulations (2005). These mandate that products must be safe under normal or foreseeable usage conditions.
The General Regulations state that producers must ensure products are designed and manufactured to be safe. They must provide information on safe usage and potential dangers to consumers so that consumers can assess the risk inherent in a product. Producers must continue to monitor product safety once products are released to the market, and must take appropriate action if safety issues arise, for example through issuing product recalls.
Producers must also identify themselves on the product or packaging, and must inform the relevant authorities if they become aware that a product placed on the market is dangerous.
Incidentally, the term 'producer' here refers to both manufacturers and the branding entity which presents itself as the producer by placing its name or logo on the product, even if it didn't manufacture the product itself. If you're a direct-to-consumer ecommerce brand, that means you.
Distributors (which include retailers and wholesalers) are also required to act with due care to ensure products meet safety standards. They're obliged to pass on product information to consumers, and cooperate with monitoring and safety activities, including removing unsafe products from the market.
The regulations empower authorities, for example the Trading Standards body, to monitor and enforce compliance. They're able to conduct inspections, seize unsafe products, or require corrective action like recalls. They can also take action to prohibit products from sale, issue fines or even pursue imprisonment in the case of serious breaches.
Both producers and distributors are liable for for any injury or damage caused by unsafe products, and consumers can seek compensation for personal injury or losses. Consumers' right to compensation is also enshrined in the Consumer Protection Act (1987).
If your product falls into a particular category, you'll need to investigate more specific regulations. This is where additional research and reading is essential, as a myriad of extra specific requirements can apply, including testing, labelling and certification.
Toys, as an example category, are covered by the Toy Safety Regulations (2011). There are requirements on shape, size, and the use of particular non-toxic, non-flammable materials. Toys have to meet limits on the presence of hazardous chemicals like lead and phthalates, and must not contain substances which could harm a child's health through ingestion, inhalation or skin contact.
Electrical toys must meet requirements on voltage, insulation and temperature limits. Toys should be hygienic and easy to clean.
Toys also have to have labels with age recommendations and specific safe use instructions, including a specific warning about small parts being a choking hazard for children under three years old.
Depending on a toy's complexity and potential risks, it may need to be tested by a third party body. Toys are also required to display UKCA marking (the UK's equivalent of the EU's CE marking), indicating they comply with relevant safety requirements, and manufacturers must maintain technical documentation of how they're made.
Finally, the Toy Safety Regulations also include similar requirements to those under the General Product Safety Regulations.
Obviously if you're selling toys, I advise you to read these regulations in full as a general overview is never going to cover everything you need to do. The good news is that the UK's toy regulations were originally an implementation of the EU's Toy Safety Directive, which means that if toys already meet safety standards in Europe, they should be compliant in the UK also.
I've used toys as one example above but there are several product-specific categories of regulation and you should check whether any apply to your product. Cosmetics must be safe for human health under the Cosmetic Products Enforcement Regulations (2013), and food is covered by the Food Safety Act (1990).
The government has a helpful A to Z list of industries where specific product safety requirements exist. Certain categories like cosmetics are affected by several areas of regulation.
There are regulatory bodies which exist for specific industries, such as the Food Standards Agency (FSA) covering food or the Medicines and Healthcare products Regulatory Agency (MHRA) covering drugs and medical devices. The Department for Business and Trade (DBT) owns safety regulations regarding other categories of products such as toys, aerosols and electrical equipment.
Various marketing, labelling and marketing standards exist for plants, food and manufactured goods being imported to the UK. Product standards and labelling is an area still undergoing significant change and updating following the UK’s departure from the European Union so it’s something you’ll want to continue to monitor.
A final point on safety. We often have a tendency to assume that everything is done at our own risk, and as individuals it's our own fault if we get hurt, either for a silly decision, lack or awareness or moment of carelessness. We take slips, trips and falls for granted, fail to connect illnesses with the food we consumed, and write off minor cuts and bruises sustained during product usage as insignificant despite them indicating the presence of even greater risks.
This attitude ignores the massive impact of the environment on an individual's likelihood of having an accident.
While we do all have an obligation to look out for our personal safety, sometimes just small changes can reduce the risks for everyone. That might be moving a box, restricting an activity, putting out a warning notice or changing a design.
As product creators and brand owners we have a major part to play here in making sure the inherent risk to the public when using our products is minimised.
