Asbestos in consumer products: a reminder that product safety doesn't end at market entry

A recent Government statement (see link below) on asbestos in consumer products serves as a timely reminder that product safety risks can arise from product composition and supply chain issues just as readily as from design defects or manufacturing faults. The publication is a joint statement by the Office for Product Safety and Standards (OPSS), the UK Health Security Agency (UKHSA), and the Health and Safety Executive (HSE) addressing public concern about asbestos contamination in consumer products. Consumers are advised to stop any use of or access to affected products and follow the official clean-up and recall guidance, and the government has committed to continuing to monitor the situation and update public advice as appropriate.

Whilst asbestos has long been recognised as a dangerous substance, the legal issues arising from its presence in consumer products engage broader product safety obligations. For businesses involved in the retail, distribution, manufacture, or importation of consumer products, the discovery of a presence of banned substance in a product that has been placed on the market can create immediate regulatory, commercial and reputational challenges. Where the need arises, businesses must assess the potential harm, maintain supply chain visibility and, in accordance with legal duties, take corrective action to protect their consumers.

The UK product safety framework

The starting point under the UK product safety regime is the requirement that only safe products should be placed on the market. However, once a product has been designed and launched for sale, the story doesn’t end there. Businesses are expected to put in place appropriate systems for monitoring product safety throughout continued sales, identifying emerging risks and responding where concerns arise. 

Where information comes to light suggesting that a product may present a safety concern, businesses then need to undertake a structured and documented hazard assessment. This will typically involve identifying the nature and seriousness of the hazard, the likelihood of consumer exposure and the extent of affected products in circulation.

For both manufacturers and other economic operators in the supply chain, product traceability is particularly important. The ability to identify affected batches, suppliers, distributors and sales channels is often critical to determining both the scale of any issue and the appropriate corrective response. 

Regulatory notification and corrective action

Where a product may present a safety risk, businesses need to consider at an early stage whether corrective action and engagement with regulators is required. Regulatory scrutiny is often focused not only on the underlying defect or contamination issue but also on how a business has responded once aware of a concern. 

The range of potential corrective measures will depend on the circumstances and severity of the issue identified. Responses may include enhanced consumer warnings, suspension of sales, removal of products from the supply chain, product withdrawal or, in more serious cases, consumer recalls.

Importantly, businesses should be able to demonstrate not only the conclusions reached but also the decision-making process that led to those conclusions. Clear records of investigations, testing, hazard and probability assessments and mitigation measures can be crucial if regulatory action later follows. 

Supply chain visibility under the spotlight

Recent attention on asbestos in consumer products highlights a broader challenge facing many businesses: understanding what is actually contained within products and components sourced through increasingly complex global supply chains.

In many cases, the possibility of a presence of prohibited, restricted or hazardous substances only becomes apparent after products have entered the market. However to avoid such findings and the associated user remediation duties, compliance can extend beyond product specifications and compliance testing and certification. It should include supplier due diligence, contractual controls, verification processes and mechanisms for identifying emerging risks once products are in circulation such as sample testing on a regular basis.

Businesses that rely heavily on third-party manufacturers or imported components may wish to use recent developments as an opportunity to review whether their current arrangements provide sufficient visibility of product composition and supply chain risks.

Potential liability beyond regulatory enforcement

The implications of a product safety issue are rarely confined to regulatory intervention. Product-related incidents can also give rise to product liability claims, contractual disputes, reputational harm and significant management time.

Where products are alleged to be unsafe, claimants may seek compensation for damage said to have been caused by the product. In parallel, businesses may face commercial pressure from customers, distributors, insurers and investors seeking reassurance that appropriate systems and controls were in place before the issue arose.

As a result, organisations should avoid viewing asbestos-related concerns solely through a compliance lens. The potential consequences are often broader, encompassing legal, commercial and reputational exposure.

Practical considerations for businesses

The recent focus on asbestos in consumer products provides a useful reminder for businesses to review their product safety preparedness. In particular, businesses should consider whether they have adequate systems in place to:

• identify affected products and batches quickly and reliably;
• trace products through the supply chain to distributors and end consumers;
• document a proportionate safety assessment and the decision-making process;
• implement corrective measures efficiently and demonstrate compliance to regulators.

Businesses with well-developed incident response procedures are generally better placed to respond effectively when concerns emerge and to demonstrate that appropriate steps have been taken. In addition, the report highlights that businesses that rely heavily on contract manufacturers or third party supplied components may wish to consider whether their current arrangements provide sufficient visibility and protection against such supply chain vulnerabilities.

CMS has extensive experience helping clients across a range of sectors to navigate complex product safety issues, including liaising with technical advisors and advising on safety evaluation and compliance assessments, assisting with the implementation of appropriate corrective actions, consideration of regulatory notifications and registrations of safety alerts, and defending against legal action.

The full statement can be viewed here: Joint Statement on Asbestos in Consumer Products - GOV.UK

If you would like assistance, please contact Esme Saynor or Megan Loxley at CMS. 

Article co-authored by Arzush Iqbal and Rowena Hunt, Trainee Solicitors at CMS