Various amendments have been agreed in Brussels to Directive 92/59/EEC on general product safety which will extend obligations on distributors of consumer products under the forthcoming 2001 Directive. The following are the main points.
All consumer products
Distributors have obligations in relation to any consumer product. The primary obligation has been extended from acting with due care to help ensure compliance with the general safety obligation of the GPSD, to helping to ensure compliance with any safety requirement of any vertical directive that might apply to a product instead of the GPSD's general safety requirement where that general safety requirement is ousted by the vertical requirement. It is, therefore, now clear that distributors of, for example, medical devices or other new approach products are included.
Duty to keep tracing documentation
Under the 1992 Directive, distributors were obliged to participate in monitoring the safety of products, especially by passing on information on product risks and by co?operating in the action taken to avoid those risks. These obligations were fairly generalised, but the 2001 Directive has added a specific requirement to safeguard and provide documentation necessary for tracing the origin of products. Compliance with this could be very costly. Moreover, there are some uncertainties about its scope.
On a purposive analysis, this duty might be expected to require distributors to keep information on both where products have come from and where they have gone to, but the wording used seemingly only relates to the former, in that it is necessary to be able to trace the origin, rather than the destination of products. However, a court may well be attracted by the purposive interpretation.
Further, there is a strong argument that it is not necessary to keep information that positively identifies the actual origin of each product, but merely to keep information necessary for tracing such origin. In other words, a distributor must know where he obtained the product from, rather than where his supplier obtained the product from or its actual producer ? although such information may be useful if it were to be available and recorded. In practice, however, many distributors would not be aware of the origin of all products which pass through their hands. The alternative argument is that, especially since producers are under the 2001 Directive required to mark their products so that they can be identified, distributors should keep this information (perhaps in addition to keeping the identity of their own suppliers).
These issues need to be clarified, since they considerably effect the scope and therefore the cost of the duties involved.
Duty to notify the authorities of dangerous products, and duty to collaborate with the authorities on action taken
These two new obligations have been added by the 2001 Directive, but also apply to producers. The duty to notify, in particular, raises some difficult practical questions which arise out of this duplication of the obligation on both producers and distributors, for which UNICE should press for clarification through guidelines.
For further information please contact Christopher Hodges on +44 (0)20 7367 2738 or by e-mail at Christopher.hodges@cms-cmck.com.
