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  European Law Monitor newsCommission's Stocktaking on Consumer Product Safety controls, with a specific focus on toys

The stocktaking

Why did the Commission carry out this "stocktaking"?

In early September, following a series of high profile recalls, European Commissioner for Consumer Affairs Meglena Kuneva confirmed her intention to engage in a rapid stocktaking exercise to review the strengths and weaknesses of the consumer product safety mechanisms currently in place in Europe, using the toy recalls over the summer as a case study. The review published today outlines the main results obtained so far and gives recommendations for further action.

What did the stocktaking process cover?

Ensuring product safety is a complex activity in which many actors play a role. Therefore, this stocktaking has addressed all the main actors in this process, including the activities in the Member States, our relationships with China and the US and, last but not least, the role of economic operators. Given its important role in defending the interests of European consumers, the Commission has also endeavoured to ensure a close involvement of the European Parliament.

At the same time, the relevant Commission services of Commissioners Mandelson, Kovács, Kyprianou, Ferrero-Waldner, upon invitation from Vice-President Verheugen and Commissioner Kuneva, carried out an internal screening of current European and international legislative framework governing product safety. The purpose of this exercise was to obtain a clear overview of the existing legislative framework and related activities (including relationships with China), to identify possible weaknesses and how to remedy them, and to see whether the solutions and methods identified in one policy area could be applied to another (see report for detailed results)

What are the main messages from the stocktaking report?

There are 4 key messages coming from the review:1. The central message is enforcement. The current EU legislative framework, based on harmonized safety requirements and European standards, is basically capable of ensuring a high level of consumer protection and facilitating intra-community trade at the same time. This is being reinforced by legislation in the pipeline on the New Approach and Toys Directive. When properly applied, it is fit for its purpose.

The stocktaking sets out a package of initiatives which will be taken forwards in the coming months to step up enforcement with industry, member states and international partners.

2. Industry must take its full responsibilities • they cannot outsource their responsibilities on safety. Manufacturers and importers are ultimately responsible for ensuring that only safe products are placed on the market, as laid down in the General Product Safety Directive 2001/95/EC ("GPSD"). To this purpose manufacturers have to ensure safety from design to factory first and foremost by checking that all components respect the existing regulations and norms and that the final product is safe to use. Importers and retailers have to get assurance from their suppliers on the safety of products they will place on the market.

All these operators have to take all necessary corrective measures and have the obligation to inform the relevant authorities when they find that a product that they have placed on the market is unsafe.

3. The Commission will step up work with National surveillance authorities to further improve risk based, and co-ordinated market surveillance. Resources available to perform controls have to be used in the most efficient way so that more controls are performed in the most problematic areas according to statistics and to other factors such as the existence of existing detailed norms or not. Proportionate measures to address specific and emerging risks where necessary will be envisaged, for example regarding magnets.

4. Co-operation with our international partners is key. In particular, the results of the third EU Rapex China report are very encouraging. They indicate very considerable progress in terms of follow up action on the side of the Chinese to stop dangerous consumer goods coming onto the EU market.

International co-operation with China


What are RAPEX and "RAPEX-China"?

RAPEX (EU Rapid Alert System for non-food consumer products) is a European rapid alert system for dangerous consumer products. It ensures that information about dangerous products identified by the national authorities is quickly circulated between the national authorities themselves and the European Commission, with the aim of preventing or restricting the selling of these products on the market. 30 countries currently participate in the system; all the European Union countries and the European Economic Area (EEA) countries: Iceland, Liechtenstein and Norway.

A Memorandum of Understanding (MoU) on general product safety between DG SANCO and the Chinese General Administration for Quality Supervision, Inspection and Quarantine (AQSIQ) was signed in January 2006. The MoU establishes a framework for better communication and collaboration between both regulators and specifically seeks to support the Chinese authorities in their efforts to ensure product safety, particularly for consumer goods exported to the EU.

One important measure in this context is that RAPEX information concerning products of Chinese origin is made available to AQSIQ, thereby allowing them to directly follow up on notifications regarding unsafe products (so-called RAPEX-China). This system is allowing AQSIQ to follow up the cases on their territory. This is essential, as nearly half of the dangerous consumer products detected in RAPEX are coming from China

What is the 3rd EU RAPEX China Report?

Following the implementation of the RAPEX-China system, AQSIQ has undertaken to report on follow up actions. The 3rd RAPEX-China report became available in October and officials from the Commission discussed its content with Chinese officials during a visit to Beijing on 23 October. From now on, reports were promised on a quarterly basis.

Why is this third report so significant?

The Report follows up on the recent confidence crisis in Chinese exports and the Mattel toys recalls. Since then, the Commission has undertaken an extensive stocktaking exercise to evaluate all the product safety chain in Europe and with our main trade partners, including the People's Republic of China. The Report is part of this exercise and provides a snapshot of the situation, identifies strengths and weaknesses and present recommendations for further progress.

What are the main findings of the EU RAPEX-China Report?

The analysis of the RAPEX China report showed that AQSIQ has made a significant effort with respect to its enforcement actions as a follow-up to the RAPEX notifications. They investigated 268 notifications, compared to 84 in the two previous reports together, and took a range of corrective measures in 43% of the cases. In 35% of all cases export of the unsafe products was stopped by AQSIQ.

Why were only 43% of the notifications followed up with corrective actions?

One of the main problems AQSIQ faces when investigating the notifications is incomplete, or complete lack of, information about the manufacturer, which prevents them from following up effectively. This accounts for 25% of all notifications. In other cases, for example, the manufacturing of the unsafe products had already stopped, the company did no longer exist or the products had already been improved.

What are the other measures taken by the Chinese authorities to improve product safety?

AQSIQ is constructing a rapid warning and investigation platform, designed to connect with the EU RAPEX-China system, so that the received notified cases can be sent directly to the relevant local AQSIQ offices that are responsible for the investigations, thus allowing for a quicker and more effective response.

Specifically regarding toy safety, AQSIQ is implementing a four-month programme (running from September to December 2007) to address existing problems. This effort has resulted in strengthened and targeted market surveillance, and concrete actions to stop unsafe toys from being produced and exported, including the investigation of over 3000 toy manufacturers. In Guangdong Province alone, where most of Chinese toys are produced, this resulted in more than 750 toy manufacturers having their export certificates suspended or revoked. A further 690 companies were ordered to renovate their manufacturing facilities and improve product quality within a fixed time period.

What is the EU doing about being able to provide the Chinese with full information so they can track down all the dangerous goods?

One of the main problems with unsafe products that are found on the European market is the lack of information about their country of origin (17% of all RAPEX notifications in 2006) or about the manufacturer, making effective follow-up very difficult. The Commission recognises that traceability of products throughout the supply chain is of key importance in enforcing product safety and will further investigate the options over the course of 2008. Obviously, economic operators have to play a key role in implementing any solutions in this area, for example by using and extending RFID (Radio Frequency Identification) technology. The Commission will also discuss possible options with its US counterparts in view of the American recommendations in this area.

Is it true that 50% of all dangerous consumer goods withdrawn from the market came from China in 2006? What are the most recent figures? Has it improved?

The 2006 RAPEX report published in March 2007 indeed shows that almost 50% of all notified products originated in China. This largely reflects the high proportion of Chinese products in the EU imports of consumer goods. In October 2007, with an all-time high of 179 RAPEX notifications, 69% of all notifications concerned Chinese products against an average of 48% over 2007. However, this mainly reflects the increased efforts by the Member States in the follow-up of the toy recalls, bearing in mind that close to 80% of all toys on the European market are imported from China.

International cooperation with the US


What is happening in the US?

Europe and the United States face many similar challenges regarding product safety. As many products are common to both markets, a strong transatlantic relationship in this matter is of key importance to ensuring consumer safety on both sides of the Atlantic and with China, which is also a very important trading partner for the US.

As a result of the product safety problems in the first half of 2007, President Bush established an Import Safety Working Group in July to identify appropriate actions. The Working Group has delivered an assessment report and an action plan, which broadly recommend improving the coordination between authorities, strengthening the cooperation with third countries and building safety into the entire supply chain together with economic operators. The recommendations and concrete action steps cover a wide range of activities and agencies and cover all products, including food, feed, medical devices and 'ordinary' non-food consumer products. The American and the European approaches are fully coherent.

In September, the US Consumer Product Safety Commission (CPSC) signed an agreement with AQSIQ to ensure the safety of children´s toys and addressing other product safety issues. Under the agreement, AQSIQ agreed to take immediately action to eliminate the use of lead paint on Chinese manufactured toys exported to the United States. Moreover, the two agencies announced work plans for cooperation in four product categories: Toys, fireworks, cigarette lighters and electrical products. This cooperation framework is very similar to what the EU has in place with China (see above), with the exception that the US is (for statutory reasons) not giving detailed information on recalled products to China on all products.

What about EU•US Co-operation? Will it increase, will you share information?

The EU and the US authorities continue their close and frequent dialogue on product safety issues with a view to coherence in the implementation actions following the respective stocktakings. With respect to the concrete actions proposed by the US Working Group on Import Safety, a number of actions could have an impact on European businesses, for example strengthening existing safety standards and extending mandatory manufacturer/importer certification requirements. After concrete questions are identified, these can be discussed in the EU-US Working Group which the authorities recently agreed to establish.

The US Congress is currently considering a proposal to allow the CPSC to exchange specific information with third country authorities, which would allow putting cooperation on a more effective footing.

With Member States


National surveillance authorities • targeted gpsd measure on magnets

How did market surveillance authorities respond to the Mattel recalls? Did they do enough surveillance over the summer? What levels of checks did they do?

The actions undertaken and results achieved by market surveillance authorities show that the Member States have generally been vigilant and have effectively accompanied the 'voluntary' recalls.

Many Member States indicated that they run regular campaigns on toy safety, in particular in the run-up to the Christmas period and that up to 50% of the resources they allocate to the enforcement of consumer product safety rules are dedicated to toy safety.

The effects of this increased effort by the Member States are well reflected by some specific indicators:

       * October 2007 saw an all-time high of 179 RAPEX notifications;
       * 69% of all notifications during the same month concern Chinese products against an average of 48%; and
       * Toys were the subject of 39% of all October notifications against an average of around 25%.

The efforts by the Member States also show an increasing level of cooperation between the market surveillance and customs authorities.

Generally, how does the Commission monitor Member State National authorities to see that enough checks are being done on a range of consumer goods?

The Commission services are in daily contact with the authorities in the Member States via the RAPEX system. Moreover, the Commission has established and coordinates a number of tools, fora and mechanisms to promote exchange information and best practices with and among Member States. For example:

       * A Committee of the Member States (the GPSD Committee) is in place and meets regularly, to discuss and decide on issues concerning the enforcement of product safety rules. The latest meeting of the Committee, entirely dedicated to the issue of last summer's toy recalls, took place on 3 October. The Committee is meeting again on 29-30 November.
       * A more informal forum (the Product Safety Network) also meets regularly to address issues relating in particular to risks linked to specific products. Besides these meetings, information is exchanged regularly via dedicated electronic fora.
       * To facilitate the market surveillance efforts of the Member States, the Commission co-finances cross-border enforcement actions by the national authorities • over 1.3 million EUR are being invested by the Commission in these actions in 2007. This has resulted in several 'joint actions', for example regarding playground equipment, cord extension sets, lighting chains and lighters. Two specific projects are worth highlighting:
       * PROSAFE (an informal network of market surveillance authorities in Europe) is currently undertaking a 3-year project[1] to develop best practices for market surveillance, which includes the development of a knowledge base, a Rapid Advice Forum, a handbook, risk assessment guidelines and a European training framework for market surveillance officers.
       * Member States in the Baltic Sea Region have recently started a project to improve cooperation, specifically focusing on the collaboration between market surveillance and customs authorities (see below).

Why is the Commission proposing to take a measure on warnings magnets?

There have been, over the past 12-18 months, a number of accidents worldwide with children swallowing magnets detached from toys or small parts of toys containing magnets. Besides a fatal accident reported in the US in 2006, at least 30 occurrences of children swallowing at least two magnets or a magnet and a metal object and requiring major surgery (the magnets are attracted to each other and may cause lacerations of the digestive tract) have been reported since 2006 worldwide. Hundreds of consumer complaints and incident reports have also been reported, and several RAPEX notifications of measures concerning magnetic toys submitted. Several toy manufacturers have recently issued major recalls of toys containing magnets, most prominently Mattel which, during the summer of 2007, recalled about 18 million toys on a global scale.

Magnets in toys are an emerging risk, which is currently not dealt with by specific rules. Even though magnets have been used in toys for a long time, in the course of the last few years they have become more powerful than in the past and therefore can detach more easily if attached with the same systems employed in the past. This is why, for example, in the wake of the recent recalls, some manufacturers have modified the design of the toys concerned, encapsulating the magnets in the parts containing them. Moreover given their increased attraction power, loose magnets or magnetic parts used in toys are posing a higher risk of serious accidents than in the past.

Last spring the Commission has mandated CEN (the European Standardisation Committee) to revise within 24 months the relevant European standard in order to cover the specific risks of toys containing small magnets. Of course, current rules state clearly that any toy can be removed from the market if it poses a risk for the health and safety of consumers, regardless of its compliance with any specific rule. However, a temporary measure such as warnings would be instrumental to address in a proportionate way the risk described pending the adoption of the standard, which aims at providing authorities with a precise benchmark to assess the safety of toys with regard to the specific risks that magnets may pose.

The measure would have a clear sunset clause linked to an event (the adoption of the revised toy standard) whose timeline is already known.

Have other Member States already taken action?

Yes. Besides the reinforced vigilance mentioned above, the French authorities have recently addressed a recommendation to manufacturers, importers and distributors to tackle this issue by affixing warnings on the packaging of toys containing small ingestible magnets. During the GPSD Committee meeting of 3 October, the Danish authorities have indicated that a similar solution is being implemented in the Nordic countries.

When will EU Member States decide? How?

The intended measure should be a Commission Decision, which must be supported by a favourable vote by the Committee of the Member States. It will be submitted to the Committee after internal consultation with all the Commissioners involved, in particular Vice-President Verheugen who is responsible for the toy safety Directive and for the standardisation process concerning toys. If a qualified majority of Member States support the measure, the European Parliament has a right of scrutiny period regarding the proposed measure. After that period has expired, the Commission can formally adopt the Decision

How long before the warnings will be seen on toys with magnets?

Spring 2008, depending on the outcome of the consultation and decision-making procedure.

What other kinds of measures can the EU take under the GPSD? Does the Commission propose to regularly introduce this kind of action?

The GPSD obliges economic operators and national authorities to take a wide range of measures to make sure that all products on the market are safe. In certain cases and under certain conditions it allows the Commission to require the Member States to take specific action at EU level to address a serious risk from certain products. Decisions of this kind have been adopted twice in the past, with a ban on phthalates (substances used to make PVC softer which have been classified as toxic for reproduction) in toys and childcare articles, and with the introduction of child-resistance requirements for disposable cigarette lighters and the ban of all novelty lighters.

As mentioned, most risks associated to consumer products are already specifically addressed by European rules. However, as experience shows, the Commission does not hesitate to propose specific, proportionate action if certain risks require it to do so.

With National Customs Authorities


What percentage of checks do customs do now on consumer goods? Isn't the priority on drugs and human trafficking etc?

Until recently, the role of the Customs consisted primarily in collecting customs duties and indirect taxes at import. Numerous developments, including enlargement and globalisation on the one hand and the threat of terrorist attacks and the role of organised crime on the other, have however changed this original role. Customs authorities in the EU are committed to ensuring the safety and security of citizens, for example by combating fraud and illegal trade in drugs and weapons.

Assisting with the enforcement of product safety requirements, in close co-operation with the market surveillance authorities, is an integral part of this task. Therefore, customs officials undertake physical controls of incoming consignments. Data from the Member States shows that in the first half of 2007 an average of 9% of incoming consignments are controlled, which is significantly higher than the 3% recommended by the World Customs Organisation.

What is wrong with the co-operation now between customs and surveillance authorities? How does it work now?

Cooperation between customs and market surveillance authorities is governed by the existing legislation in this area; Regulation 339/93 The purpose of this Regulation is to provide the customs authorities with legal basis and equally applicable and comparable procedures in all Member States to suspend, for no more than 72 hours, the release into free circulation of products which they suspect posing a serious risk to health and safety. There is no obligation for the customs authorities to initiate specific control checks for unsafe products, beyond the standard customs controls procedures. Therefore, the current legislative framework is substantially reactive, once an unsafe product has been identified in the course of customs controls, but no proactive obligation exists for the customs authorities to carry out controls for unsafe products at the EU borders on their own initiative.

Additionally, there is an emerging body of evidence showing that unsafe products detained by customs and not released for free circulation have been subsequently exported and have re-entered the Community via another point of entry, thus frustrating customs' efforts.

Why does the interoperability of the Custom's system and Rapid Alert system need improving?

Specifically with respect to the involvement of customs authorities in ensuring product safety, and in a response to identified weaknesses in the legislative framework, in the beginning of 2007 the Commission presented a proposal for a New Legislative Framework for the marketing of products, which will make it compulsory for them to perform checks regarding the safety of products entering the Community. It will also allow for the destruction of products presenting a serious risk.

The stocktaking exercise also highlighted two further areas for strengthening our cooperation:

       * Firstly, after a successful pilot project on mini-motor bikes, the development of Commonly Agreed Priority Control Areas (CPCA) will allow the Union to carry out targeted control actions relating to a specific type of goods, for example toys originating from a certain third country.
       * Secondly, concerning the Community customs risk management system and the use of Risk Information Forms, it is necessary to establish closer cooperation between the responsible customs services and the authorities operating alert systems, in the consumer product and food areas. In this way, information from the RAPEX and RASFF systems about unsafe products can be circulated to customs authorities more quickly.

Industry controls

Who is responsible for safety, the importer, manufacturer or retailer?

Depending on who places the product for the first time on the European market, this responsibility could lie with either the manufacturer, the importer or the retailer (acting as an importer).

In practice this means that the legal responsibility for the safety of the same toy could either lie with the manufacturer (who might produce the toy in Europe), the importer (who might buy it from the manufacturer in China) or the retailer (who might buy it from a trader in Hong Kong). All these actors should have in place measures to guarantee the safety of the toy they place on the European market.

Are the toy industries doing their job?

The general impression from the stocktaking is that reputable businesses make significant efforts to ensure the safety of their products and the improvement of the safety procedures is their day-to-day task. Regarding the specific toy recalls, our discussions with the companies and information from the Member States has shown that follow-up actions have been undertaken speedily and effectively. They have comprehensive product safety and quality assurance systems in place.

More generally, the 'branded' toy industry is putting delivery of safe products high on their agenda and has in place elaborate procedures for ensuring product safety during design and production. While every company operates slightly differently, the safety measures typically include design requirements (e.g. on banned substances), certification and testing of raw materials and components, training, certification and auditing of suppliers, and testing of production samples and final products

Why do you need an audit, don't you trust their controls?

While effective follow-up action has been taken by industry with regard to the recent recalls, the constant stream of RAPEX notifications regarding unsafe toys shows that there are still significant problems in making sure all toys, especially at the lower end of the market, are safe. That is why we have decided to undertake a fast, yet comprehensive, evaluation of business safety measures in the toy supply chain, which will also look at this less 'visible' part of the toy sector. For this purpose, a small ad hoc expert group will be established, comprising of Member State, business, consultant and consumer representatives, to carry out interviews and a fact-finding mission, with the aim to formulate concrete recommendations for improvements. The project is intended to deliver its results in the first quarter of 2008.

How can you be sure that manufacturers are doing enough to make checks all along the supply chain?

The legal responsibility of placing a safe product on the market lies with the manufacturers. During the several meetings with the industry it has become clear that product safety is very high on their agenda. Because toy companies fear damage to their reputation they are re-enforcing the checks already in place and, where necessary, introduce new checks as the case of Mattel has shown.

Following our meeting with the toy CEOs,, the industry signed up to a number of measures, including:

     1. Sharing expertise: in particular participating in the Commission´s fact finding mission on "Evaluating Business Safety Measures in the Toy Supply Chain" with a view to investigating ways that safety measures can be enhanced.
     2. Providing education and training: in particular in the context of the Memorandum of Understanding with China, providing education and training on EU toy safety standards so that there is a clear understanding of what is required to ensure that toys are safe and fully compliant;
     3. Cooperation with national authorities: in particular working to ensure that non-compliant goods and in particular counterfeit goods can be identified and intercepted to ensure a high level of consumer safety
     4. 'Safety Pact': in the long run we will develop and sign up to a Safety Pact on voluntary codes of good practice which shall include manufacturers, importers and retailers

What about retailers? Do they do checks?

Yes. It is not only manufacturers but also retailers that have specific product safety and quality assurance systems in place. Retailers, besides being distributors for branded products, are often also importers for their own-brand products and as such have the same obligations regarding product safety as manufacturers. From the discussions it has become clear that retailers take broadly the same measures as manufacturers regarding their own-brand products and also operate safety measures regarding the products from others they put on their shelves.

ANNEX: Breakdown of Third EU-CHINA RAPEX Report



       * Since October 2006, AQSIQ investigated 268 RAPEX notifications concerning dangerous non-food consumer products of Chinese origin
       * Progress is shown by October 2007 report covering actions in 184 cases, compared to a total of 84 cases in previous reports

Measures adopted in China

       * Export stopped (export ban ordered by authorities or voluntary stop by the Chinese manufacturer/exporter) • 93 cases;
       * Other corrective actions taken by the Chinese manufacturer/exporter • 9 cases;
       * Strengthened supervision over the Chinese manufacturer/exporter • 14 cases;

In other cases, no measures taken for various reasons

       * Chinese manufacturer/exporter could not be located • 36 cases;
       * Notified product has not been manufactured/exported by the firm indicated in a notification • 33 cases;
       * Investigation could not be initiated due to lack of information about the Chinese exporter • 12 cases;
       * Different risk assessment • 23 cases;
       * Other • 48 cases.

Total number of notifications investigated:

Measures adopted:
Corrective actions:
Export stopped:
Measures not adopted:
Supervision strengthened: 5%
Manufacturer not found:
Different manufacturer:
Different risk assessment:

* Other reasons for not adopting measures include: bankruptcy; products notified are different from those which are manufactured by the Chinese manufacturer; investigation is in progress; products are no longer manufactured; products have been manufactured according to the specifications which had been provided by the importer.
[1] The project is entitled EMARS which stands for Enhanced MARket Surveillance through best practice. More information can be found on