When placing consumer products on the German market, various product safety standards have to be met. The applicable rules and regulations can be quite difficult to determine. Failure to comply will however result in governmental as well as private-party actions against the importer and the manufacturer. Abiding by the pertinent rules and regulations is therefore crucial.
Legal product safety standards mostly stem from European Union law
Although all of the European Union (EU) member states employ their own product safety government agencies and authorities, most of the material standards for products are set by the EU itself. Traditionally, this is accomplished via directives. Directives are legal acts set at EU level which have to be implemented into member state law before they become effective. The standards will nevertheless be harmonized throughout the European internal market. In recent years, the EU has begun enacting regulations in the consumer products sector as well. Regulations apply immediately, they do not have to be transposed. This way, even closer harmonization is ensured. Wherever EU law applies, it automatically supersedes national rules and regulations.
For many types of consumer products, there are individual directives and regulations. From a producer's perspective, the first step has to be determining which of these rules apply. The most important statutes in the field of consumer products are the following:
The low-voltage directive (Directive 2006/95/EC of the European Parliament and of the Council on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits; LVD) applies to electrical equipment designed for use with a voltage rating of between 50 and 1,000 V for alternating current and between 75 and 1,500 V for direct current.
The toy safety directive (Directive 2009/48/EC of the European Parliament and of the Council on the safety of toys; TSD) applies to products designed or intended, whether or not exclusively, for use in play by children under 14 years of age.
The medical device directive (Council Directive 93/42/EEC concerning medical devices; MDD) covers any article (including software) intended to be used for human beings for the purpose of diagnosis, prevention, monitoring, treatment or alleviation of diseases, injuries, handicaps and for the investigation, replacement or modification of the anatomy or of a physiological process as well as for control of conception, including accessories, as long as it does not achieve its principal intended action in or on the human body by pharmacological, immunological or metabolic means.
The cosmetics directive (Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products) covers substances and mixtures intended to be placed in contact with the external parts of the human body or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance and/or correcting body odors and/or protecting them or keeping them in good condition.
The machinery directive (Directive 2006/42/EC on machinery) sets safety standards for assemblies, fitted with or intended to be fitted with a drive system other than directly applied human or animal effort, consisting of linked parts or components, at least one of which moves, and which are joined together for a specific application.
The textiles regulation (Regulation (EU) No 1007/2011 on textile fibre names and related labelling and marking of the fibre composition of textile products) sets labeling and marking requirements for any raw, semi-worked, worked, semi- manufactured, manufactured, semi-made-up or made-up product which is exclusively composed of textile fibres.
This list is far from exhaustive as there are countless further directives and regulations on virtually all sorts of products.
The responsibility for having products tested rests with the producer
With Decision No 768/2008/EC of the European Parliament and of the Council on a common framework for the marketing of products, certain further obligations for producers have been established. Especially the obligations set with regard to CE conformity marking have great practical relevance.
The manufacturer must ensure that his products comply with the applicable requirements by carrying out or commissioning a product conformity assessment procedure. Products complying with the essential requirements shall be affixed with the CE marking by the manufacturer and must include an EC declaration of conformity.
Failure to comply with the rules and regulations can have dire consequences
In case of a breach of product safety law, market surveillance authorities will initiate infringement procedures. If private parties were harmed by the product, the producer can be held liable for damages. Market rivals might decide to seize the opportunity and hold the producer accountable as well. Under several EU member states' laws, marketing products which do not comply with the applicable product safety standards constitutes unfair competition. Last but not least, the media might pick up on the product safety breach too. In some cases, this can well lead to market share losses much more substantial than any government fine.
Non-legal standards may have to be taken into account as well
Under certain circumstances, merely complying with compulsory standards will simply not be enough. This especially applies to situations where the producer furnishes his product with special quality labels, or where products are being tested by consumer organizations.
For a lot of products, special quality labels are being issued by private organizations. As a rule of thumb, the standards set in this regard will be higher than the legally binding ones. What is more, these privately set standards are not limited to product safety per se. They may take into account corporate social responsibility (CSR), workplace safety and environmental issues just as well. The requirements differ widely between the various labels. When marking products with said quality labels, these standards have to be taken into account just like legislatively set rules and regulations.
Special attention is also advised when dealing with consumer organizations and their monthly or annual testing publications. Such journals play a very important role especially in the German and Austrian markets. The editors will test the product against their own standards, which include CSR issues just as well. The final outcome of the product review will depend in large parts on the level of cooperation between the producer and the magazine editors.
Assuring compliance with the relevant product safety and CSR standards demands vigorous diligence regarding the applicable legal regimes in the first place.