Blogs

Blogs

Rutger Oldenhuis, founder of RecallDesk, will write a series of blogs for Bike Europe Magazine about product compliance, product safety and recalls. Please find his blogs below. You can also read the blogs on the website of Bike Europe (subscription may be required).

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E-bike battery fires and what the industry can do about it

By Rutger Oldenhuis – published in Bike Europe

Did you see the horror crash of Formula 1 racer Zhoa at Silverstone this year? He survived, miraculously, due to a mandatory safety measure that was introduced in 2018 by car sports federation FIA: the halo. The halo is a titanium part that is placed over the driver’s cockpit. The design has a strong resemblance with the upper part of a flip-flop – just look at your Havaianas.

Perhaps that was the reason why nobody in car racing really liked the introduction of the halo until they saw it actually serve a purpose. Since its introduction, several drivers owe their lives to the halo, including Zhoa. It’s a great example of ‘safety by design’ and the FIA can take pride that they have pushed through with this innovation, despite all the opposition. And from flip flops, it’s only a small jump to e-bike battery safety.

Thermal runaway

Battery fires, mainly caused by so-called thermal runaway events, are an increasing concern in the bicycle industry. In e-bike paradise, the Netherlands, there are 6-8 battery fires reported every week, but the real number is probably even higher. Thermal runaway events can have many different causes and the risks can be serious. Some batteries are ticking time bombs and should not be on the market in the first place. So, what can the industry do to minimise the risks?

Risk assessment

One of the goals of product design is to minimise the product risks that have been identified with the risk assessment. Complying with a harmonised standard is essential, but only relevant for the risks and risk categories that are covered by that standard. A producer is expected to carry out a risk assessment and check whether the harmonised standard covers all risks of the product.

Safety hierarchy

Once the product risks have been identified, they can be minimised following the Safety Hierarchy principle, which is like a 3-stage rocket. Step 1 is about applying inherently safe design measures (‘safety by design’). Step 2 is about applying safeguarding and complementary protective measures (e.g., a chain guard). Step 3 is about reducing risk through information for use, e.g., a warning on the product and/or in the manual. Typically, all three steps are being used, but with a clear preference and hierarchy. Step 3 is a last resort measure.

Is a warning in a product manual sufficient?

Despite the instructions and warnings for use in product manuals, consumers tend to charge batteries in their bedroom, park their e-bike in the burning sun and continue using their battery after it has dropped or suffered from a crash. Whether that behaviour would lead to an exemption of producer liability is arguable. If warnings are notoriously and continuously ignored, then such careless behaviour becomes foreseeable, and the producer will have to act on that by taking extra precautionary measures.

Risk reducing measures

For example, why not sell an e-bike with a sun protective battery bag? Why not have more safety features built in the Battery Management System, like overheating, drop or crash detection, combined with a push message on a mobile app? Most modern mobile phones have a simple strip indicating if there is water damage. Why can’t a battery have a simple crash-sensitive device that indicates if a battery has suffered from external impact? Imagine how that could improve not only the safety of consumers but also reduce the risks for companies using e-bikes for B2B services, like postal, rental and bike-sharing services.

A call on the industry

The increasing number of battery fires are harming the e-bike image. Only safe e-bikes should be allowed on the market. Harmonised safety standards are developed together with industry experts. When developing standards for e-bikes, there is a great opportunity for the industry to raise the bar and improve the safety standard for batteries based on the current state of technical knowledge and possibilities. Take FIA as an example. If flip-flops can do it for Formula 1…

Rutger Oldenhuis is founder and owner of RecallDesk (www.recalldesk.com), specialist in product law and product recalls. Contact: info@recalldesk.com

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The French Triman logo: Is the bicycle industry prepared?

By Rutger Oldenhuis – published in Bike Europe

In France, a law on product labelling recently entered into force, which is causing quite a stir. The law may have major consequences for companies selling consumer products in France, including bicycles. An informal ‘round the table’ with various sources suggests, however, that this new French law is not known yet to everyone in the bicycle industry. So, what is it about?

Triman logo + Sorting Information

As of 1 January 2022, a law has entered into force in France that requires companies to place the so-called Triman logo on products or packaging that are subject to ‘Extended Producer Responsibility’ (EPR). The Triman logo has been mandatory in France since 2015, but the number of products involved was limited and the logo was also allowed to ‘only’ be placed on the website. However, the new law goes a lot further.

The Triman logo has been mandatory in France since 2015.

Firstly, the list of products that fall under the EPR has been substantially extended. For example, sports equipment, including bicycles, as well as textile clothing, shoes, batteries, and accumulators, are now also included. And since all packaging – including non-recyclable – now also falls under the French EPR scheme, most companies selling in France will be affected by the new legislation.

Secondly, in addition to the Triman logo, so-called ‘Sorting Information’ must be depicted. That means that symbols indicate how consumers should separate the waste from the product and where to dispose of it. If different elements, parts or waste of the product are subject to different disposal procedures, they should be specified element by element.

The requirements of the new French labelling legislation are no sinecure and should not be underestimated. Companies that sell products throughout Europe must adjust their labelling specifically for France. That entails an enormous burden and increase in costs. Large multinationals may – reluctantly – absorb this, but for SMEs, that may not be so easy. Moreover, extra labelling creates more waste, whereas companies – encouraged by the EU Commission – need to reduce their carbon footprint.

Violation of the EU Treaty

But how about the European Union’s Holy Grail: the single market? Doesn’t this new French law create an obstacle to the free movement of goods? Can France impose these additional labelling requirements, just like that? Good questions. It is true that, under certain circumstances, an EU Member State may not simply introduce national legislation if it creates an obstacle to the free movement of goods unless there would be a justification. The key question is therefore whether France has a justification for imposing these draconian labelling requirements. The French legislators think they do, invoking the protection of the environment. The European Commission, on the other hand – spurred on by a large number of business associations – does not, but to date, it has not gone so far as to start infringement proceedings against France.

To comply or not to comply

Although many sources claim the new labelling requirements to be mandatory, the French law actually allows for different labelling than the Triman logo. More importantly, it is likely violating the EU Treaty. That triggers the question for businesses of whether or not to comply with it. Although the French legislator has chosen a relatively mild sanction regime, you can never be sure if your products would ultimately be banned from the market. On the other hand, would France really be confident enough to let it come to legal proceedings now that the labelling requirements are likely to violate the EU Treaty? Tough call! On the bright side, France has made an important exception: wine is excluded from the new labelling requirements. However, I am afraid it will not make the headache any less.

Rutger Oldenhuis is founder and owner of RecallDesk (www.recalldesk.com), specialist in product law and product recalls. Contact: info@recalldesk.com

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How M&M’s can make cycling safer

By Rutger Oldenhuis – published in Bike Europe

In the music world, a contract for live concerts typically has an appendix, also known as a ‘rider’, that includes all kinds of very detailed technical and practical rules and demands of a band. Some bands are known for adding insane or absurd requests to a rider – rock band Van Halen was one of them. Their wish list included “M&M’s (WARNING: ABSOLUTELY NO BROWN ONES!)”. Their contract further stipulated the following: “There will be no brown M&M’s in the backstage area, upon pain of forfeiture of the show, with full compensation”.

For a long time, this Van Halen clause was misunderstood for being yet another crazy demand from a bunch of spoiled rockers. But nothing could be further from the truth and businesses and their lawyers could really learn from it.

Read the contract

So, what was this clause really about? Building a stage for live concerts is no sinecure, even more so if it concerns a big act like Van Halen. Their hit ‘Jump’ may ring a bell to you. Look them up on YouTube and you’ll get an idea. Next to the right technical and physical set-up of the stage, the safety risks on stage should not be underestimated. Building a stage is often done under a lot of time pressure, so mistakes are easily made. If the members of Van Halen would arrive backstage and find brown M&M’s among the other colours, they would know that the organisation did not read their contract carefully and therefore they could not be sure of their safety on stage. Let me quote David Lee Roth, Van Halen’s lead singer at that time:

“When I was walking backstage, if I saw a brown M&M in that bowl … well, check the entire production. Guaranteed to find a technical error. They didn’t read the contract. Guaranteed to run into a problem. Sometimes this issue would threaten to destroy the entire show. Something that could be literally life-threatening”.

Lessons for bicycle industry

So, what can the bicycle industry learn from Van Halen? And where is the link with recalls? Well, the best thing about a recall is not having one. If your production is outsourced to third parties, the quality, compliance, and safety of your products are, to a large extent, in the hands of your supplier. Of course you trust your suppliers to make good products, but how can you be sure?

The supply chain of the bicycle industry is under heavy pressure and mistakes are easily made. Like Van Halen, you could attach your rider to the supplier agreement – an appendix including the technical requirements, safety standards and test protocols relevant to your products. Somewhere in that appendix, you could include a weird, funny, or unexpected demand that would immediately ring a bell if not spotted. Or it could make your contract a more ‘living’ document. If you need some inspiration, here are some examples:

“Every 100th box shall contain a drawing of an animal (size A4) made by the Quality Manager. A poem (max 4 lines) is also accepted.” or “After each successful batch test, the Quality Manager will confirm this by email and in the same email tell a joke. In case the batch test was not successful, instead of telling a joke, the Quality Manager will have to sing a song (by phone or video). Paying for dinner during the next Eurobike show is also accepted.”

Product compliance

These examples may look silly and not fit your corporate style or culture. My point, of course, is this: try to find whatever could be your “no brown M&M’s” clause in order to make sure your product compliance and safety process and requirements are actually taken seriously and continuously followed by your supplier, while at the same time building on a sustainable relationship. Such an unconventional approach may even work better than the rather static factory audits. In any case, it would make product compliance and safety a lot more fun.

Rutger Oldenhuis is the founder and owner of RecallDesk (www.recalldesk.com), specialist in product law and product recalls. Contact: info@recalldesk.com.

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That’s a Bingo!

By Rutger Oldenhuis – published in Bike Europe

There are two types of people: those who have seen the movie Inglorious Basterds and those who have seen it more than once. If you have not yet seen the movie, please look the other way or close your eyes. I will let you know when you can continue reading again.

I first saw Inglorious Basterds in a cinema in Amsterdam. I will never forget the opening scene. It seemed to last forever, and you could have heard a pin drop. Fear, disgust, sadness and humour intertwined. This was acting on the highest level; a piece of art. And if that wasn’t all, let me tell you about the movie’s climax. Well, you know what happened in that small theatre in Paris. And really, as the climax unfolded, literally everyone in the cinema in Amsterdam stood up and started to yell and clap their hands. Goosebumps! That is how realistic fantasy can become. Tarantino is a master in rewriting history.

Fantasy becomes reality

For most companies, a product recall is like fantasy – it happens to others, not them. Some companies may ignore a suspected recall, hoping it continues to be a fantasy. But that fantasy can become your worst nightmare. If there are signals within your company indicating a possible product safety issue, you better take the appropriate action. I am not sure if media outside the Netherlands paid any attention to the Philips recall lately, but their stock market value at some point dropped 50% because Philips allegedly ignored product complaints from the market involving a medical device since 2015.

Another example is last year’s Peloton treadmill recall. Publicly arguing with the CPSC (Consumer Product Safety Commission) in the USA and denying a potential safety issue while reports of adults, children and pets being pulled under the rear of the treadmill have been received is definitely not the way a suspected recall should be handled.

Batch testing

Many of my clients had never experienced a recall before. And yet, it happened. Fantasy became reality, and if they could only rewrite history, just like Tarantino, they would. And there are many things they could have done to mitigate the risk of having a recall. One example of a quick win is to continue to test your products after market launch, for example, through batch testing. And if you don’t manufacture your products yourself, make sure to involve your supplier(s) in your test protocol.

If you really want to bring your product safety process to the next level, let me bring 2 ISO standards to your attention that seem to be unknown to most companies: ISO 10377 and ISO 10393. These standards help businesses, both big and small, assess and improve safety processes in the design, in production and in the marketplace. The key message of these standards is that design and production defects are highly preventable.

QuickScan identifies weaknesses

If you prefer the quick wins, for your convenience, RecallDesk has developed a QuickScan based on the ISO standards mentioned above, supplemented with our own experience. You may also see this QuickScan as a fresh pair of eyes helping your business identify possible weaknesses in your product safety process. And don’t worry, even the biggest stock-listed companies have weaknesses. To give you an idea, here is just one example of a question taken from the QuickScan: “Do you have (properly) written agreements in place with your suppliers, covering recall damages?”

Ooooh, that’s a bingo!!

“We don’t need a contract. Our relationship is based on trust!” I often hear. Yes, but it’s just like a marriage: everything is fine until something goes terribly wrong. So, to celebrate the start of a new year, I am offering 5 QuickScans for free. Just drop me an email. First come, first serve. And for those who haven’t seen Inglorious Bastards yet, you may now continue reading.

Rutger Oldenhuis is founder and owner of RecallDesk (www.recalldesk.com), specialist in product law and product recalls. Contact: info@recalldesk.com

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Lost in translation

by Rutger Oldenhuis – published in Bike Europe

Michael Jackson is famous for many things, not least because of his misheard lyrics. Even native speakers have trouble understanding what he is actually singing and his version of “Come on!” is just inimitable: “Shamone!”. When I drove back from the Eurobike show early September, I noticed the sign I always see when driving across Germany: ‘80 bei Nässe’ (80 when raining). Only this time I wondered: what if foreigners don’t understand what that means? What if they just continue pushing their car to its limit when it starts raining?

As weird as the combination of these examples may seem, what they have in common is ‘language’. In Michael Jackson’s case, you can just continue listening, even if you don’t have a clue what he is singing. You may even not listen to him at all if you don’t like his music. But if you continue driving 200 km/h on a road that gets wet, you put yourself and your fellow drivers at risk.

Necessity of including all languages

I often get the question if all of the official EU languages are necessary for product information, packaging, labelling and manuals. The typical lawyer answer would be: it depends. In general, “the manufacturer, importer and distributor have the obligation to ensure that the product is accompanied by instructions in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned. It is for each economic operator which makes available the product in a Member State, to ensure that all the required languages are available”.

For many product categories, specific language requirements may apply for labels, packaging and instructions. Examples are the Machinery and REACH Directives and the Textile Regulation. For high-risk products, the minimum requirement is usually the official language of the EU member state where the products are marketed.

Risks of missed information

Another and – I admit – rather unconventional way of checking which languages are needed: ask yourself whether a ‘Michael Jackson’ or a ‘80 bei Nässe’ situation applies. Would it be important for your customer to understand how to install, use, service or maintain your product? Are there any risks to be considered if they missed any of such information? Als ik nu ineens doorga in het Nederlands, oder auf Deutsch, ou en français, или на по-рядко срещан език като българския? Do you think it may be important for consumers and even professional bicycle mechanics to receive such information in their own language?

In France, they made it pretty easy to answer that question. Based on the French ‘Toubon Law’, “in the designation, offer, presentation, instructions for use, description of the scope and conditions of warranty of a good, product or service, as well as in invoices and receipts, the use of the French language is mandatory.” This is typically interpreted broadly and even includes information on websites as well. Exceptions apply to trademarks and foreign words that are commonly accepted, like ‘t-shirt’ or ‘jeans’.

Jos Speedboat

At home, my brothers and I had our own way of dealing with Michael Jackson’s gibberish. Just for fun, we changed “Just beat it” to “Jos Speedboat” (Jos is a Dutch first name). This was a long time ago and you can image how totally flabbergasted I was when in 2005 a novel written by Dutch author Tommy Wieringa came out, called ‘Joe Speedboat’. What are the odds? A must-read by the way and translated in the official languages of the countries where it was marketed.

Rutger Oldenhuis is founder and owner of RecallDesk (www.recalldesk.com), specialist in product law and product recalls. Contact: info@recalldesk.com

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Some version of the truth

by Rutger Oldenhuis – published in Bike Europe

“I have always told you some version of the truth”, Jack Nicholson said to Diane Keaton in one of my favourite comedies “Something’s gotta give”. But it could very well have been a lawyer who said it. Indeed, attorneys-at-law are trained to defend your version of the truth, being supported by laws that often leave room for various interpretations.

It’s no surprise that even judges often argue about the legal truth. During my career as inhouse lawyer, one of my main tasks was to give as little work to attorneys-at-law and judges as possible. Mitigating legal risks (compliance) was key. Anti-trust, privacy, data protection, intellectual property, transfer pricing, ESG, anti-bribery and corruption. And last but not least: product safety and product compliance.

A product is assumed to be safe if it complies with relevant European or national legislation. Next to that, a product is assumed to be safe if it complies with a relevant harmonized standard. According to the European Commission, complying with harmonized standards is the safest way to demonstrate that your products comply with mandatory legal requirements. Producers should take their responsibility and allocate sufficient resources to ensure their products are safe and compliant when placing them on the market. Sometimes that is easier said than done. When I checked my son’s field hockey shoes for their size, I noticed the mandatory shoe labelling was missing. And too often I see products that are missing mandatory CE marking. Some authorities would love to seize those products if they get the chance.

But it takes two to tango. Legislators on their turn should help producers, e.g. by making laws that leave as little room for interpretation as possible. Taking UV protective clothing as an example. In the guidelines of the Personal Protective Equipment Regulation (PPER) the risk of UV protective clothing is classified as Category I, since it is regarded as an “atmospheric condition that is not of an extreme nature”. But the same guidelines literally say that “natural UV-radiation (sunlight) is not an atmospheric condition”, which would mean UV protective clothing should be classified in Category II. Category II products require a far more burdensome conformity assessment than Category I. So which version of the truth is true?

Despite the different conformity assessments, both Category I and II products require CE marking. A small market research revealed not all UV protective clothing (including bicycle clothing) has the required CE marking, which raises the question if all brands are aware of the applicability of the PPER in the first place. This would not be too worrying if only e-labelling was accepted as a means to demonstrate compliance. Labelling changes could be made more easily, e.g. in case of correcting a missing CE marking.

The European Union however is a very slow mover when it concerns e-labelling. One of the arguments that is often heard, is that today still a substantial part of the consumers is digital illiterate. But for the same reasoning: should we then not provide written product information since a substantial part of the population is illiterate? Maybe I’m too simple-minded, but digital illiterates will by definition not buy a product online. They will buy it in a brick and mortar store. It would be fairly easy to offer a printing solution in a shop, either at the checkout or through QR scanners in the shop. Product information would be up-to-date and printing would only be necessary in the local language. If a QR code works for Corona, what’s holding back the European Commission to adopt e-labelling?

“The truth doesn’t have versions”, Diane Keaton replied to Jack Nicholson. Lawyers know better, and a QR code may show different versions of the same truth, depending on the user. One of my favourite albums is “This Is My Truth. Tell Me Yours” by the Manic Street Preachers. And that’s another way of putting it.

Rutger Oldenhuis is founder and owner of RecallDesk (www.recalldesk.com), specialist in product recalls. This is his first blog in a series for Bike Europe. Contact: info@recalldesk.com.