30 September 2022 • 5 minute read
Environment, Health, Safety and Product Compliance: September round-up
- Underage Sales: A draft sentencing guideline (at consultation) has the potential to significantly increase penalties particularly for retailers involved in the inadvertent sales of knives to underage customers. Should the guideline come into force, it raises the prospect of £million fines for the worst offenders but perhaps more strikingly a very high probability of 6 figure fines even for organisations convicted on the back of an isolated breach with ostensibly reasonable precautions in place. This would represent a marked change from the generally low fines handed down at present, driven in part by the absence of a specific sentencing regime.
- Product: UKCA Marking: Legislation will be brought forward to allow for further easements in relation to UKCA marking which will (amongst other things) allow the UKCA mark to be placed on labels and accompanying documentation until 2025.
- Health, Safety and Environmental: Transport of Dangerous Goods by Road: Parties who are currently only acting as consignors (by virtue of sending dangerous goods or by virtue of contract) of dangerous goods must from January 2023 appoint a Dangerous Goods Safety Adviser (DGSA). The remaining months of the year represent a good opportunity to review arrangements in respect of dangerous goods transportation.
- HFSS Products: Legislation prohibiting the placement of HFSS products in prominent in store or online locations (e.g., checkouts, aisle-ends; home or payment pages) will come into force next month (October 2022) creating requirements for retailers and considerations for suppliers to trade.
- Single Use Plastics & Packaging Waste: Scotland is the most advanced of the four nations in relation to single use plastics having introduced prohibitions on products such as cups and containers (made from expanded polystyrene), plastic straws, plastic cutlery, etc. with Wales planning to follow a similar though not identical path. Whilst England has already prohibited e.g., plastic straws and stirrers, it remains in consultation about next steps as well as potential extended producer responsibility legislation and product labelling.
- Regulatory Sentencing: Leave to appeal was refused by the Court of Appeal in a fatal trespass case which resulted in a £6.5 million fine (which remains the highest under the 2016 Sentencing Guideline). The Magistrates Court now has the power to impose periods of 12 months imprisonment for either-way offences.
- The UK's October 2022 deadline requiring prepacked foods (and other specific foods) to name a UK-based food business operator or importer has been delayed until 1 January 2024, meaning an EU name and address will be sufficient for a further 15 months.
- Proposals are afoot to introduce mandatory water efficiency labelling (akin to existing energy labelling) for consumer products such as washing machines, dishwashers and showers.
- The UK government may be prepared to 'bonfire' very recent food law central to its anti-obesity drive e.g. laws mandating calories on menus and the sugar tax, despite the former only coming into force this April.
- A large international food manufacturer has been handed a very significant fine after supplying a food product to a consumer containing a foreign object which had resulted from issues relating to its machinery. The case underlines the importance of (equipment) monitoring in the context of food safety/hygiene systems.
- A review of recent safety cases in the criminal courts reveals a notable uptick in prosecutions brought against directors and officers. Whether this is part of a longer-term trend remains to be seen but it does tell us that enforcing authorities are seemingly more prepared than ever to invest resources into proceedings against individuals where they identify more serious failings.
- The Supreme Court decision of Hastings (like the battle…) has re-affirmed the test relating to the question of whether a product is defective. Statistical evidence alone, the issuing of official notices or the decision to voluntarily recall a product do not determine that a product is defective. The test remains whether, objectively, a product fails to meet the level of safety persons are reasonably entitled to expect.
- UK suppliers of cosmetic products can continue to include only the details of an EU responsible person (there is no need for the details of a UK responsible person to be provided) until 31 December 2025.
- The ASA has responded to the Welsh Government’s proposed ban on the sale of energy drinks to under 16s observing that it may need to carefully introduce jurisdictional-specific advertising requirements, should such a ban come into force. Also in Wales, legislation banning single use plastics has been laid before the devolved Parliament.
- Trading Standards has reported on a notable trend in the sales of unsafe consumer products including vaping products, various electronic goods and e-bike chargers.
- A new EU regulation on recycled plastic materials will enter into force on 10 October 2022 regulating the safety of recycled plastic intended to come into contact with food, including food packaging. It remains to be seen whether a similar position is taken in Great Britain.