Taking safety seriously

By Rutger Oldenhuis LLM – Published in Bike Europe Magazine 5-2023

In September 2018, a terrible accident took place in the Netherlands. An electric vehicle, called a ‘Stint’, which is a small electric cart primarily used for transporting young children, was hit by a passenger train. These vehicles were commonly used in the Netherlands by childcare centres for transporting groups of children. As a result of the collision, four children lost their lives and two other individuals, a child and the adult driver of the Stint, were seriously injured.

Five years later, the Dutch Public Prosecution Service (OM) is bringing charges against two companies responsible for producing and selling the Stint, along with two company executives, for their involvement in multiple criminal offenses. This decision comes after an extensive investigation that was initiated following the accident in 2018. Based on the findings of this investigation, the OM concluded that the Stint qualified as a harmful product as defined in the Dutch Penal Code. Many studies would show that the product was unsafe on numerous points. For example, it allegedly did not meet the safety requirements as laid down in the Machinery Directive and the EMC directive. An investigation showed that the Stint had no proper brake construction, no brake switch, a faulty throttle, no start-up protection and no presence detection. The OM also reported that there were claims indicating that the Stint had undergone the CE marking procedure, despite this being untrue. The Declaration of Conformity (DoC) and manual wrongly highlighted its adherence to the safety requirements outlined in the Machinery Directive. The suspicion is that the individuals in question were well aware of the harmful effects associated with the product, yet chose to remain silent about it. Additionally, the individuals under suspicion are facing charges related to forgery. They falsely informed authorities that the Stint had undergone the appropriate CE marking procedure when applying for road admission. Furthermore, they altered their own manual by removing all references to this procedure shortly after the 2018 accident.

The Stint issue could have happened in any country and clearly shows that manufacturers must take product compliance and product safety very seriously. Of course, most accidents don’t receive the extensive news coverage that the Stint case did. However, with the introduction of the EU General Product Safety Regulation, manufacturers will be obligated to report accidents caused by their products, extending the government’s reach.

The people behind the Stint did not wish for or foresee this terrible accident. And yet that is exactly what you should do as a product manufacturer: contemplate worst case scenarios during the design and development phase and ensure that the product is designed to withstand them. Unfortunately, product compliance and product safety are all too often seen as an annoying expense. However, not taking these critical aspects seriously can come at a great cost. Besides the potential product risks for end-users, producers can be held criminally accountable if they wilfully and knowingly put a harmful product on the market.

The Stint case may also serve as a reminder that signing a DoC is much more than just a formality and should not be taken lightly. By signing a DoC, the signatory is taking legal responsibility that the product conforms to the specified requirements. This means that if the product does not actually conform, the signatory and/or the company could be held liable. For market surveillance authorities, a DoC is like low-hanging fruit. An incorrect or inaccurate DoC is a smoking gun and can easily lead to the conclusion that a company lacks effective safety processes. It underscores the importance of having product compliance and safety higher on the boardroom agenda. Compromising on product compliance and product safety budget is a dangerous balancing act. In the end, prioritising safety goes beyond merely establishing the right processes. It is fundamentally a mindset.

Hoe zit het nou met de wettelijke garantietermijn in Nederland? Mag die korter zijn dan twee jaar?

Het gebeurt regelmatig: winkels in Nederland die richting consumenten een beroep doen op een garantietermijn van een jaar. Desgevraagd wordt uitgelegd dat Nederland geen wettelijke garantietermijn heeft bepaald, maar die laat afhangen van de eigenschappen van het product. Daarbij wordt dankbaar gebruik gemaakt van informatie verstrekt door diverse overheidsinstanties. Maar klopt die informatie wel? Geldt er in de EU geen minimale wettelijke garantietermijn van twee jaar? RecallDesk heeft dit uitgezocht. De verrassende uitkomst leest u in dit artikel.

“De duur van de wettelijke garantie mag de verkoper of fabrikant niet zelf kiezen. Want dat volgt uit de wet. Veel consumenten denken dat zij volgens de wet standaard recht hebben op 2 jaar garantie. Dit komt uit Europese regels. Maar in Nederland staat geen vaste wettelijke garantietermijn in de wet. Hoelang hebt u dan wettelijke garantie? Zo lang als u mag verwachten dat uw product meegaat. In onze wet staat namelijk dat een product moet bieden wat u ervan mag verwachten. Dat is per product anders. En dat kan korter of langer zijn dan 2 jaar. Het hangt af van alle eigenschappen van uw eigen product. Gaat uw product eerder kapot dan u mocht verwachten? En hebt u het normaal gebruikt? Dan hebt u volgens de wet recht op reparatie of vervanging.”

Aldus de website van de ACM (ConsuWijzer).[1] De Kamer van Koophandel verwijst dankbaar naar de ACM.[2] De Consumentenbond noemt geen termijn en spreekt alleen over de termijn die geldt voor de omkering van bewijslast (zes maanden onder de oude Richtlijn, twaalf maanden onder de huidige Richtlijn).[3] Ook de Rijksoverheid verwijst naar de ACM.[4] Op een andere website van de Rijksoverheid wordt dan juist weer uitgelegd dat consumenten in alle lidstaten van de EU (plus Noorwegen, Liechtenstein en IJsland) recht hebben op minimaal twee jaar wettelijke garantie.[5] Hoe zit het nou?

Artikel 10(1) van Richtlijn (EU) 2019/771 bepaalt dat de verkoper jegens de consument aansprakelijk is voor elk conformiteitsgebrek dat bestaat bij de levering van de goederen en dat aan het licht komt binnen twee jaar na dat tijdstip. Het is een Europese Richtlijn die de minimumrechten vaststelt voor consumenten bij de aankoop van consumptiegoederen. Deze Richtlijn biedt lidstaten geen mogelijkheid om hiervan af te wijken in het nadeel van consumenten. Wel kunnen lidstaten langere termijnen handhaven of invoeren. Nederland heeft weliswaar (en onhandig genoeg) geen termijn opgenomen in de relevante wetgeving, maar heeft daarmee niet beoogd om minder dan twee jaar garantie toe te staan (hetgeen ook in strijd zou zijn met EU wetgeving). Dat kan onder andere worden opgemaakt uit de relevante passages van de Memorie van Toelichting bij Boek 7 van het Burgerlijk Wetboek, destijds bij de omzetting van artikel 5(1) van Richtlijn (EU) 1999/44 (de voorganger van artikel 10(1) van de huidige Richtlijn) in artikel 21 van boek 7 van het Burgerlijk Wetboek:

“Artikel 5 lid 1 bepaalt dat de verkoper krachtens artikel 3 aansprakelijk is wanneer het gebrek aan overeenstemming zich manifesteert binnen een termijn van twee jaar vanaf de aflevering van de goederen. Titel 7.1 BW kent geen vaste (verval)termijn bij het verstrijken waarvan de koper geen beroep meer kan doen op de rechtsgevolgen van non-conformiteit. Dit betekent dat ook na meer dan twee jaar kan blijken dat de zaak niet aan de overeenkomst beantwoordt, en de koper zijn in artikel 7:21 BW genoemde rechten kan uitoefenen. Een belangrijke factor daarbij is uiteraard de levensduur van de zaak. Met name bij duurzame consumptiegoederen is de levensduur daarvan veelal langer dan twee jaar. Met het systeem van titel 7.1 BW wordt meer recht gedaan aan de verscheidenheid van zaken, zodat de termijn van twee jaar uit artikel 5 lid 1 niet wordt overgenomen. In artikel 5 lid 1 wordt voorts bepaald dat indien voor de uitoefening van de in artikel 3 lid 2 vermelde rechten in de nationale wetgeving een verjaringstermijn geldt, deze niet korter mag zijn dan twee jaar vanaf de aflevering. De verjaringstermijn ter zake is in titel 7.1 BW geregeld in artikel 23 lid 2. Deze termijn is twee jaar en begint te lopen op het moment dat de consument het gebrek aan de verkoper meldt. Omdat dit moment nimmer eerder valt dan het moment van aflevering, behoeft deze bepaling geen aanpassing.”

Met andere woorden, in Nederland geldt een minimale garantietermijn van twee jaar. Voor meer duurzame producten mag een langere garantietermijn worden verwacht. De overheid doet er goed aan om alle informatie over wettelijke garantie die door overheidsinstanties wordt verspreid, hierop aan te passen.

Voor vragen over wettelijke garantietermijn, of andere vragen op het gebied van garantie (waaronder fabrieksgarantie) of consumentenrechten, kunt u (ook) terecht bij RecallDesk.

[1] Hoelang heb ik garantie en welke rechten heb ik dan? | ACM ConsuWijzer

[2] Garantie geven | Ondernemersplein (kvk.nl)

[3] Nieuwe regels garantie | Consumentenbond

[4] Welke garanties heb ik op een product? | Rijksoverheid.nl

[5] Wat zijn mijn rechten als ik een product koop in een Europees land? | Rijksoverheid.nl

Online platforms become quasi-regulators

By Rutger Oldenhuis LLM

The rapid growth of e-commerce has transformed the way we shop, allowing us to purchase a wide range of products conveniently from online marketplaces. However, this convenience also brings certain risks, particularly when it comes to product safety. Too often, we see products sold through online platforms that do not comply with relevant EU product legislation. It is not uncommon to find products subject to recalls still being available on online marketplaces. The enforcement of product safety regulations on online marketplaces has traditionally posed challenges for authorities. However, this situation is anticipated to undergo a significant transformation with the implementation of the upcoming EU General Product Safety Regulation (GPSR). An entirely new section has been included with obligations for ‘providers of online platforms’. This seems to be a real game-changer, not only for providers of online platforms but also for companies who sell products through online platforms. Under the GPSR, online platforms will be obligated to implement a comprehensive set of due diligence measures. These measures will ensure that both the platforms themselves and the traders utilising their platforms adhere strictly to relevant laws and regulations when selling products. To get the gist, here’s an overview of the upcoming requirements:

 

  • Online marketplaces are required to establish a single point of contact for communication with market surveillance authorities in Member States and consumers regarding product safety issues. This contact will also be registered with the Safety Gate Portal, a new web portal to inform the public and enable them to submit complaints.
  • Online marketplaces must set up robust internal processes for ensuring product safety.
  • Online marketplaces are expected to remove dangerous product content from their platforms within two working days following an order from market surveillance authorities.
  • Providers are required to monitor information about dangerous products via the Safety Gate Portal and take appropriate actions, if needed. They must also report any voluntary measures taken to the authority that made the notification.
  • Online marketplaces must process product safety notices within three working days from receipt.
  • Platforms must organise their online interface such that it enables sellers to provide comprehensive information about their products and make it easily accessible to consumers. This includes information about the manufacturer, product identification details, and safety information.
  • Online marketplaces should have mechanisms that enable traders to provide the necessary information and a self-certification declaring their compliance with the regulation.
  • Providers of online marketplaces must suspend services to traders that frequently offer non-compliant products after issuing a prior warning.
  • Platforms are expected to cooperate with market surveillance authorities, traders, and other relevant parties to eliminate risks presented by products offered online.
  • Providers must inform consumers in a timely manner about product safety recalls and publish this information on their online interfaces.
  • The regulation also imposes obligations on providers to cooperate with market surveillance authorities by sharing data about dangerous products, accidents, and product recalls.

Including a bulleted list in a blog may not win the beauty contest, but I hope it clarifies the message that the forthcoming GPSR makes online platform providers quasi-regulators when it comes to product compliance and safety. A clever move if you compare the surveillance capacity of national authorities with the financial resources of Amazon and the like. The message for traders using platforms is really: be prepared. The GPSR will enter into force on 13 December 2024. And yes, that’s a Friday…

EU product safety law going mental

By Rutger Oldenhuis LLM

In my previous blog post, I mentioned that I was in ongoing discussions with the EU Commission about the snag that I found in the new EU General Product Safety Regulation (GPSR). At the time of writing, I am still awaiting a response from the unit responsible for the automotive industry. I can understand that they might need some time to grasp the potential implications of the snag. Coincidentally, I am currently assisting an automotive client in developing a recall procedure. Naturally, I want this procedure to be future-proof, hence, to comply with the GPSR. However, this presents a dilemma. Today, automotive recall procedures typically require customers to schedule appointments with dealers for repairs. Pursuant to the GPSR, a dangerous vehicle, being non-portable, must be collected from the customer directly. It would be helpful if the EU Commission could clarify whether this new approach is strictly necessary or whether there is room for proportionality.

In addition to the far-reaching provisions on recall remedies, the GPSR contains many other provisions that go far beyond the current EU General Product Safety Directive (GPSD), which will be food for many more blogs to come. For example, the GPSR adopts the WHO’s definition of ‘health’, which states: “The World Health Organization defines ‘health’ as a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity”. As a result, the concept of ‘product safety’ acquires a more expansive meaning and a new dimension. However, it is not an entirely new phenomenon, which can be demonstrated by the following examples. A Dutch tableware company introduced a new product line called ‘Dutch Glory’, featuring traditional Dutch icons such as pancakes, cheese, clogs, and tulips. The problem was that it also featured an illustration of a smiling Anne Frank. After facing criticism, the company removed the products from the market. Another example is a play clay manufacturer who withdrew a “phallic-shaped toy” from the market in response to parental complaints. Given the GPSR’s extensive interpretation of safety and health, we can anticipate an increase in similar recalls.

The GPSR also places a greater emphasis on risk assessment compared to the GPSD. Unless already addressed by Union harmonisation legislation, the GPSR mandates that manufacturers conduct an internal risk analysis and compile technical documentation. This means that a manufacturer must perform a risk analysis and prepare technical documentation before introducing a product to the market in almost all cases. With the adoption of the WHO’s definition of ‘health’, the risk assessment must also incorporate ‘mental health’ considerations. The GPSR, for instance, specifies that a risk assessment “[…] should take into account the health risk posed by digitally connected products, including their impact on mental health, particularly for vulnerable consumers such as children”. This expanded risk assessment approach may influence how we evaluate the risks associated with, for example, gaming, social media, and even emerging platforms like the metaverse. The bicycle industry should evaluate how the new safety principle of the GPSR applies to their specific circumstances and determine its relevance and potential impact.

In the meantime, I hope that the European Commission will soon be able give guidance on the interpretation of the new recall measures for non-portable dangerous products. If there would be room for proportionality, that would be extremely helpful for my clients’ recall procedure. And good for their health.

I wonder if ChatGPT would have spotted this

By Rutger Oldenhuis LLM

I almost missed my deadline for writing this blog. ChatGPT was overloaded already for days, so I really had to write myself. So, let’s continue where I ended my previous blog.
Being a big fan of my blogs, you know I made a comparison with the car industry, where one hardly ever sees a ‘Stop Ride’ recall, despite the often serious risks. You know that I have made a case for fewer ‘stop using your bicycle immediately’ recalls. You also know that this is not going to happen if we take the (provisional) text of the General Product Safety Regulation (GPSR) literally. In fact, dangerous bicycles and cars, being non-portable, will have to be collected from consumers. The text does not leave any room for proportionality. Was this really intended by the EU Commission? Fortunately, the EU Commission also reads my blogs. And guess what? My assessment of the GPSR turns out to be correct. However, that is only for bicycles, not for cars. Since there is already specific sectoral legislation for cars in place that also handles recalls, the GPSR would not apply to cars. The question is whether that is a correct assessment.
It is true that there is sectoral legislation in place for cars, namely Regulation (EU) 2018/858 on the approval and market surveillance of motor vehicles and their trailers. However, if you read what it says about recalls, it is very high level and limited to phrases such as “the manufacturer shall immediately take the corrective measures necessary to bring that vehicle […] into conformity, to withdraw it from the market or to recall it, as appropriate”. And in case of serious risk, the national market surveillance authority will “require without delay that the relevant economic operator take all appropriate corrective measures without delay to ensure that the vehicle […], when placed on the market […] no longer presents that risk”.
Chapter VIII of the GPSR, on the other hand, contains very detailed recall and remedy provisions. For example, a recall notice must include a ‘stop use immediately’ instruction. In addition, non-portable, dangerous products must be collected from consumers. It is remarkable that the GPSR (where ‘G’ stands for ‘General’) contains such detailed and specific provisions. Since the GPSR is a so-called horizontal regulation, any additional (or more specific) obligations under the GPSR regarding recalls would be applicable to the car industry, as well as other industries not excluded from its scope. The sectoral car legislation does not exempt motor vehicles from the requirements of the GPSR. Regulation (EU) 2018/858 does not replace or derogate from the requirements of the GPSR. It sets out additional requirements for the safety and performance of motor vehicles and their components, but does not relieve manufacturers of their obligations under the GPSR. Therefore, any additional or more specific obligations under the GPSR would still apply to the car industry alongside the requirements of the sectoral legislation.
It should also be noted that the application of Chapter VIII of the GPSR is not excluded for sectoral legislation, while many other chapters are expressly excluded.
I am still in discussion with the EU Commission. If their intention was to exclude sectoral legislation from the scope of Chapter VIII, they can still do so through a simple amendment. However, I do not see why dangerous cars are less dangerous than dangerous bicycles. No recall is the same, and it would therefore be better to, instead of exclude it, change Chapter VIII and leave more room for proportionality. To be continued. Cars aside, if the text of the GPSR remains unchanged, dangerous (cargo) bicycles and LEVs must be collected from consumers. I wonder if ChatGPT would have spotted that snag.

Product recalls under the GPSR: beware of the snag!

By Rutger Oldenhuis LLM

The ink has yet to dry, but the recently approved text of the long-awaited General Product Safety Regulation (GPSR) will cause quite a stir. The GPSR will replace the now-aging General Product Safety Directive (GPSD) and is expected to come into force at the end of 2024.

Like any other, the bicycle industry should take note of the GPSR now, because the implications will be significant, and infringement may lead to penalties. There is much to say about the new Regulation, but here I will focus on the provisions relevant to product recalls.

Let me start with some interesting statistics that speak for themselves. The word ‘recall’ (in some form) appears 81 times in the GPSR versus 17 times in the GPSD. The word ‘corrective’ (as in ‘corrective measures’) appears 31 times in the GPSR versus 0 times in the GPSR. More importantly, there seems to be a snag that apparently was overlooked by most (if not all) trade associations and other stakeholders during the drafting phase. A snag that can make the burden of a recall even bigger than it already is.

Although certain parts and chapters of the GPSR do not apply to products for which specific harmonised EU regulations already exist, the provisions relevant to product recalls apply to all product categories, unless their applicability is expressly excluded (for example, medicinal products, food and feed). Where European legislation normally excels in vague texts and open norms that need to be further fleshed out by courts, remarkably, the GPSR contains quite detailed recall provisions and instructions, which you would normally expect in the form of a guideline. For example, the GPSR prescribes that the headline of a recall notice must be ‘Product safety recall’. Furthermore, words or expressions such as ‘voluntary’, ‘precautionary’, ‘discretionary’, ‘in rare/specific situations’ as well as indicating that no accidents have been reported, should be omitted. In addition, consumers must be instructed to stop using the product immediately. The latter, in particular, seems very rigid and can potentially have very far-reaching consequences, which – so it seems – were overlooked during the drafting phase of the GPSR, especially when we take a closer look at the legal requirements of recall remedies.

In the event of a recall, the GPSR stipulates that consumers should be given a choice of at least two of the following remedies: repair, replacement, or a refund. Consumers may only be offered one remedy if the other remedies are impossible or disproportionate. The question then, of course, is what is disproportionate; in that respect I also refer to my previous blog that I wrote for Bike Europe. In any case, consumers are always entitled to a refund if the economic operator has not arranged for repair or replacement within a reasonable time without significant inconvenience for the consumer. A possible snag is the provision that prescribes that if products by their nature are not portable, the economic operator must arrange for the collection of that product. If we follow the text of that clause literally, this would mean that, in the event of a recall of an unsafe bicycle, consumers must immediately stop using it and the economic operator must collect the bicycle from the consumer. The question is whether this is really intended. After all, it would also mean that, for example, an unsafe car would have to be collected from consumers. Given the high number of automotive recalls, that would undoubtedly lead to a logistical nightmare and a huge financial burden. The European Automobile Manufacturers’ Association (ACEA) seems to have completely overlooked this in their feedback on the draft text. The only thing they worried about was that, instead of using a picture of an unsafe product, it should also be allowed to use an illustration…

How Dirty Is Greenwashing?

By Rutger Oldenhuis LLM

Introduction

It’s a phenomenon often seen in advertising: exaggeration, also known as “puffery”. Typically, puffing is not regarded as misleading advertising, even though the claims cannot be objectively verified. “We serve the best sandwiches in town!” Everyone will understand that such an advertising claim is completely harmless. For a long time perhaps something similar could be said about environmental claims used by corporates to market their products or services. Terms like ‘green’, ‘eco-friendly’, ‘conscious’ or ‘sustainable’ are all over the place and almost lost their meaning.[1]

However, in a relatively short period, the tide seems to be turning. NGOs, consumer initiatives, newspapers, activist shareholders, national authorities and the EU Commission are paying more and more attention to companies that use unsubstantiated or vague sustainability claims (also known as ‘greenwashing’), with the European Green Deal as an important driver. Not without consequences. And with the recent Shell-case, corporates with large carbon footprints may even have more to worry about.

In this article I will briefly explain the current legal perspective of environmental claims used by corporates to market their products or services, in particular on a business-to-consumer level.[2] What is allowed, and what not?[3] I will also briefly touch upon the Shell-case, which may be the first of alternative legal actions to be expected against climate change.

Unfair commercial practice

In the EU, sustainability is covered by a patchwork of regulations and directives.[4] On a business-to-consumer level, the overarching legal basis (or ‘safety net’) of ‘greenwashing’ can be found in Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market (“UCPD”). However, if you search the UCPD for key words like ‘environmental’, ‘sustainable’ or ‘greenwashing’, you won’t find any hits, despite the latest amendments made in November 2019. Indeed, it does not provide specific rules on environmental claims. Nevertheless, according to the EU Commission Notice on the interpretation and application of the UCPD (“the UCPD Guidance”), the UCPD provides a legal basis to ensure that traders do not present environmental claims in ways that are unfair to consumers. Interestingly, the UCPD Guidance uses the word ‘environmental’ 123 times and includes the following definition of ‘greenwashing’:

 “The expressions ‘environmental claims’ and ‘green claims’ refer to the practice of suggesting or otherwise creating the impression (in a commercial communication, marketing or advertising) that a good or a service has a positive or no impact on the environment or is less damaging to the environment than competing goods or services. This may be due to its composition, how it has been manufactured, how it can be disposed of and the reduction in energy or pollution expected from its use. When such claims are not true or cannot be verified, this practice is often called ‘greenwashing’.”

Examples of greenwashing

An environmental claim can be misleading if it contains false information and is therefore untruthful. The UCPD Guidance includes many practical examples, including the following:

 

  • Using the term ‘biodegradable’ for a product which is not actually biodegradable or for which no tests have been carried out.
  • Presenting electrical appliances such as irons, vacuum cleaners, coffee machines, as ‘environmentally friendly’ (‘eco’), although tests show that they frequently do not perform better than similar products or where no tests have been carried out.
  • Presenting tableware containing bamboo as a sustainable, recyclable and eco-friendly alternative to plastic materials, when such products are in reality a mix of plastic, bamboo (sometimes bamboo dust) and resin made of melamine and formaldehyde that is necessary to produce various shapes (dishes, bowls etc.) and degrees of stiffness.

Environmental claims are likely to be misleading if they consist of vague and general statements of environmental benefits without appropriate substantiation of the benefit and without indication of the relevant aspect of the product the claim refers to. For example:

 

  • Traders increasingly make claims about carbon neutrality by investing in projects that compensate for CO2 emissions. For example, a car rental company offers consumers the possibility to ‘drive CO2 neutral’ by choosing an option that compensates for emissions. This practice may be problematic if the underlying carbon credits are of low environmental integrity or are not accounted for appropriately, so that they do not represent real and additional emission reductions.
  • A court considered that the marketing of hair and skin care products, where the trader had stated that their products are organic with claims such as ‘eco’ and ‘organic’, were vague and without clear qualifications. The court also assessed that it is not clear enough with only the graphic symbol/logo/label of a third-party certification label as a qualification of what organic and/or eco means.

According to the EU Commission, examples of claims that are likely misleading are ‘environmentally friendly’, ‘eco-friendly’, ‘eco’, ‘green’, ‘nature’s friend’, ‘ecological’, ‘environmentally correct’, ‘climate friendly’, ‘gentle on the environment’, ‘pollutant free’, ‘biodegradable’, ‘zero emissions’, ‘carbon friendly’, ‘reduced CO2 emissions’ ‘carbon neutral’, ‘climate neutral’ and even the broader claims of ‘conscious’ and ‘responsible’.

Furthermore, traders should not distort claims about the composition of the product (including raw materials). For example:

 

  • Advertising a product as containing ‘sustainable cotton’ could be misleading if the origin of the cotton is neither traceable nor separated in the production chain from conventional cotton.

Many more examples are explained in the UPCD Guidance, which guidance can be used as a valuable source for companies who want to better understand the legal aspects of unfair commercial practices, including greenwashing.

Half of the green claims lack evidence

In January 2021, the European Commission and national consumer authorities released the results of a screening of websites (so called “sweep”), an exercise carried out each year to identify breaches of EU consumer law in online markets. That year, for the first time ever, the sweep focused on ‘greenwashing’. The outcome was that half of the green claims lacked evidence. In many cases sufficient information for consumers to judge the claim’s accuracy was missing. Claims included vague and general statements such as ‘conscious’, ‘eco-friendly’, ‘sustainable’, which were often unsubstantiated.

The sweep was not without consequences for Decathlon and H&M. They were publicly reprimanded by the Dutch surveillance authority for using vague and unsubstantiated environmental claims. Both companies donated respectively €400,000 and €500,000 to charities as penance, and promised they would adjust their environmental claims. The Dutch authority therefore refrained from further penalties.

Which environmental claims are allowed?

As a rule of thumb, consumers must be able to trust environmental claims put forward by traders. Consequently, in order not to be misleading, environmental claims must be ‘truthful, not contain false information and be presented in a clear specific, unambiguous and accurate manner’. The UPCD contains the following example:

 

  • Highly polluting industries should ensure that their environmental claims are accurate in a sense of being relative, e.g. ‘less harmful for the environment’ instead of ‘environmentally friendly’.

The UCPD clarifies that any claim (including environmental claims) should be based on evidence which can be verified by the relevant competent authorities. Traders must be able to substantiate environmental claims with appropriate evidence. Consequently, claims should be based on robust, independent, verifiable and generally recognised evidence which takes into account updated scientific findings and methods. The burden of proof regarding the accuracy of the claim rests on the trader. Enforcement authorities have the power ‘to require the trader to furnish evidence as to the accuracy of factual claims in relation to a commercial practice’. Independent third party testing should be made available for the competent bodies if the claim is challenged. If expert studies give rise to significant disagreement or doubt over environmental impacts, the trader should refrain from the claim altogether.

Could greenwashing lead to a product recall?

Environmental product risks can be a reason for having to recall products from the market. That may for example be the case if a product contains certain hazardous substances in too high volumes. Whether greenwashing could lead to a recall, depends on the circumstances of the case. Volkswagen recalled millions of cars after admitting they had used a ‘defeat device’ to cover-up the actual pollution levels (also known as ‘Dieselgate’). Another example of a corrective action may be the obligation to change product and packaging due to incorrect labelling. Next to that, consumers may be entitled to get a refund based on consumer law (e.g. based on non-conformity). The result is de facto the same as a recall.

The unprecedented Shell-case

A corporate’s social and environmental responsibility may stretch a lot further than its commercial practices vis-à-vis consumers. The Shell group (“Shell”) is one of the world’s largest producers and suppliers of fossil fuels. The CO2 emissions of Shell, its suppliers and customers exceed those of many countries. This contributes to global warming, which causes dangerous climate change and creates serious human rights risks, such as the right to life and the right to respect for private and family life. It is generally accepted that companies must respect human rights. This is an individual responsibility of companies, which is separate from states’ actions. On May 26, 2021, the Hague District Court in the Netherlands has ordered Shell to reduce the CO2 emissions of the Shell group by net 45% in 2030, compared to 2019 levels, through Shell’s corporate policy.[5] This order has been given in proceedings initiated by seven foundations and associations as well as over 17,000 individual claimants. According to the court, the claimants were right to believe that Shell takes insufficient action, acts unlawfully, and should do more to reduce CO2 emissions. Shell’s reduction obligation follows from the ‘unwritten standard of care’ laid down in the Dutch Civil Code, which means that acting in conflict with what is generally accepted according to unwritten law is unlawful. From this standard of care follows that when determining Shell’s corporate policy, Shell must observe the due care exercised in society.[6]

The following scientific evidence was used in the Shell-case:

The total worldwide capacity remaining to emit greenhouse gases is referred to as the ‘carbon budget’. At present, global CO2 emissions amount to 40 Gt CO2 per year. So every year that CO2 emissions remain at this level, 40 Gt is deducted from the carbon budget. If global CO2 emissions are higher, more than 40 Gt will be deducted from the carbon budget. A carbon budget of 580 Gt CO2 was available from 2017 – a best estimate – for a 50% chance of a global warming of 1.5ºC. In 2020, 120 Gt of CO2 has been used and 460 Gt of CO2 remains. If emissions remain the same, the carbon budget will run out in the foreseeable future.

Concluding

The inconvenient truth is that we need laws (written and unwritten) and Green Deals to stop greenwashing and push corporates to implement truly sustainable practices. The Shell-case shows that, regardless of using environmental claims (true or false), companies may be legally forced to take appropriate measures across their supply chain to protect the environment. This raises the question if more court cases like the Shell-case can be expected.

[1] Another issue is the jungle of green labels used for products. It is difficult for consumers, companies and other market actors to make sense of the many environmental labels and initiatives on the environmental performance of products and companies. According to the EU Commission, there are more than 200 environmental labels active in the EU, and more than 450 active worldwide. There are more than 80 widely used reporting initiatives and methods for carbon emissions only. However, this falls outside the scope of this article.

[2] The upcoming new or proposed legislation in the field of sustainability, which form part of the EU Green Deal, falls outside the scope of this article.

[3]  For writing this article, I thankfully made use of the UPCD Guidance as one of my main sources.

[4] Among others Regulation (EC) No 66/2010 of the European Parliament and of the Council on the EU Ecolabel, Regulation (EU) 2017/1369 of the European Parliament and of the Council setting a framework for energy labelling, Directive 1999/94/EC relating to the availability of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars, Directive 2012/27/EU on energy efficiency, as amended by Directive (EU) 2018/2002, Directive 2010/31/EU on the energy performance of buildings, Regulation (EU) 2020/740 on the labelling of tyres with respect to fuel efficiency and other parameters, Directive (EU) 2019/944 of the European Parliament and of the Council on common rules for the internal market in electricity, Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products, Regulation (EU) 2018/848 of the European Parliament and of the Council on organic production and labelling of organic products, Directive (EU) 2018/2001 of the European Parliament and of the Council on the promotion of the use of energy from renewable sources, Directive 2009/73/EC of the European Parliament and of the Council on common rules for the internal market in natural gas.

[5] The Decision is available in English here: ECLI:NL:RBDHA:2021:5339, Rechtbank Den Haag, C/09/571932 / HA ZA 19-379 (engelse versie) (rechtspraak.nl)

[6] Shell has lodged an appeal against the ruling, which is still pending.

The French Triman Logo: To Comply Or Not To Comply?

By Rutger Oldenhuis LLM

(Includes important update per 16 Februari 2023)

Introduction

In France, a law on product labelling recently entered into force, which is causing quite a stir. The law, which requires companies to use the so called Triman logo and waste sorting pictograms, may have major consequences for companies selling consumer products in France, including sporting goods, apparel and shoes. The requirements of the new French labelling legislation are no sinecure and should not be underestimated. Companies that sell products throughout Europe are expected to adjust their labelling specifically for France. That entails an enormous burden and increase of cost. 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.

Many sources suggest this new law is mandatory, whereas non-compliance would lead to high fines. That is not entirely correct and needs to be nuanced. At the same time, a large number of industry associations (including FESI), supported by the EU Commission, are of the opinion that the French law is violating the EU Treaty. Furthermore, we may expect the EU to come with harmonised labelling in the near future. That leaves companies with a difficult question: should we comply or not? To help companies answering that question, in this article I will explain what the new French labelling requirements essentially are about and will share some insights and practical tips.

What is the law about?

As of January 1, 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 OECD defines EPR as a policy approach under which producers are given a significant responsibility – financial and/or physical – for the treatment or disposal of post-consumer products.” In other words, the polluter-pays principle.

The French Triman logo is not new. The use is mandatory 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.

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

Secondly, in addition to the Triman logo, so-called Sorting Information must be depicted by means of pictograms. 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, that should be specified element by element, which makes the new requirements a lot more burdensome.

What Sorting Information symbols do I need to use?

Although you would expect France to come up with a harmonised approach, unfortunately that is not the case. The design of the Sorting Information pictograms is left to each Producer Responsibility Organisation (PRO), subject to approval by the French authority. For example, the pictograms used for sporting goods (organised by Ecologic) may look different than the pictograms used for clothing and textile (organised by re_Fashion) and may look different than the pictograms used for packaging (organised by CITEO).

What is the deadline to comply?

The French law does not stipulate any harmonised fixed dates. Deadlines of implementation, and for disposal of stock, depend on the date of approval of the pictograms submitted by each individual PRO to the French authority. For example, for clothing and footwear, according to re_Fashion, by 1 February 2023 at the latest (or 1 August 2023 for products manufactured or imported before 1 February 2023) the information “must be affixed on all items of clothing, household linen and footwear”[1]. However, for packaging waste, according to CITEO, marketers have until 8 September 2022 to bring their packaging into compliance. Then, they have until 8 March 2023 to sell existing stocks of packaging manufactured or imported before 9 September 2022. As of 9 March 2023 all packaging must include Sorting Information unless exempted by law. These are just two examples. To know which deadlines apply, companies will have to check with each relevant PRO.

Challenges

Following the French labelling requirements, companies may face some practical challenges. For example, a shoe box may be shipped to a consumer in a carton box or a plastic bag. Some shoes may have a hang tag attached to it, some may not. There may be plastic or other material inside the shoe box that you don’t know about. Et cetera. If it is unknown upfront what elements are contained in a box and how a product will be packed and shipped, which Sorting Information pictograms should be used? It is very burdensome, if not impossible, to customise the Sorting Information per each Consumer Sales Unit and have different pictograms printed or attached to each element of your product and packaging materials.

Solutions

Although it is probably not envisaged by the French legislator, a practical solution may be to use a ‘one-type-fits-all’ Triman logo, consisting of pictograms of products and packaging materials that are likely to be used when shipping and selling your products (belonging to the same product family). The risk may be that a pictogram is shown of waste material that is actually not used, but what damage could that really do? Furthermore, instead of printing them on the product or packaging, the French law also allows for placing the Triman logo and Sorting Information on documents supplied with the product. Taking online D2C sales as an example, the Triman logo and Sorting Information pictograms could be shown on the order confirmation form included in the box or bag. When needed, pictograms can be changed very easily, making compliance within your supply chain a bit less burdensome.

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? 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. There is a principle in the EU known as the “mutual recognition principle”. Based on this principle, in the absence of harmonised rules, once a product is lawfully placed on the market of one of the EU member states, other member states cannot create market barriers based on national technical rules (including product labelling). In other words, if a product without the Triman logo is lawfully placed on the market of e.g. Germany or the Netherlands, France cannot stop this product from being sold in France, unless they have a justification. The key question is therefore whether France has a justification for imposing these new labelling requirements. The French legislator 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[2], 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 suggest that the new labelling requirements are mandatory, the French law actually allows for different labelling than the Triman logo. However, the question is whether it will really help companies. Based on the French law, the Triman logo can only be replaced by another label if it is similar to the Triman logo and subject to mandatory law of the EU or a member state. According to my appraisal, that is a wrong codification of the mutual recognition principle. More importantly, the labelling requirements are likely violating the EU Treaty. That triggers the question for companies whether or not to comply. Although the French legislator remarkably has chosen for a relatively mild sanction regime (fines can be up to a maximum of €15,000), you can never be sure if your products will ultimately be banned from the French market. On the other hand, we may wonder if France would really be confident enough to let it come to legal proceedings, now that the labelling requirements are likely violating the EU Treaty.

Problem-solving procedure: SOLVIT

The decision whether or not to comply with the French labelling requirements may strongly depend on the risk of fines and perhaps even a sales ban in France, and consequently, expensive legal proceedings. However, for situations like these, the EU offers a service called SOLVIT that may be unknown to many companies.

SOLVIT[3] is a service provided by the national administration in each Member State that aims to find solutions for individuals and businesses when their rights have been breached by public authorities in another Member State. SOLVIT presents itself as an effective non-judicial, problem-solving mechanism that is provided free of charge. It works under short deadlines and provides practical solutions to individuals and businesses when they are experiencing difficulties in the recognition of their Union rights by public authorities. Where the economic operator, the relevant SOLVIT Centre and the Member States involved all agree on the appropriate outcome, no further action should be required. When the SOLVIT’s informal approach fails, the EU Commission would be empowered to make a decision within 45 working days. Since we already know the position of the Commission vis-à-vis the new French labeling requirements, the SOLVIT procedure may be an interesting option.

SOLVIT is only relevant for cross-border conflicts in the EU. For companies that produce locally in France, compliance with the French Triman logo will be a national matter. Therefore, the SOLVIT procedure unfortunately will not be accessible to them.

French dealer ban

For companies that sell in France through a dealer network, there is another risk. The French authority may visit a shop and impose a sales ban on products that do not comply with the labelling requirements. French dealers may therefore be reluctant to sell products that are not compliant. It will not be the first time that the compliance department of large French retail chain imposes a sales stop of products that do not comply with the applicable labelling requirements. The question is how sensitive French dealers will be for the argument that the French labelling requirements are actually violating EU law.

Conclusion

Although the French authority would like us to believe that the new labelling requirements are harmonised, implementation is left to individual PROs, resulting in a mess of different pictograms and deadlines and making compliance a headache for companies. Furthermore, the new requirements violate the EU Treaty. It is also expected that the EU will sooner or later come with harmonised labelling for the entire EU market. That triggers the question for companies whether or not to comply with the French labelling requirements. However, the risk of a French sales ban, either imposed by the French authority or French dealers, is not an attractive one. On the other hand, the question is whether the French authority would be confident enough to let it come to a trial. If so, SOLVIT seems like a fast, attractive and promising dispute resolution service. In any case, for companies selling in France, it’s a tough call!

(Update 16 February 2023 | Source February infringements package: key decisions (europa.eu))

Commission calls on FRANCE to ensure that its labelling requirements concerning waste sorting instructions comply with the principle of free movement of goods

The European Commission decided to open an infringement procedure by sending a letter of formal notice to France (INFR(2022)4028) for failure to address its labelling requirements concerning waste sorting instructions. To be placed on the French market, household products belonging to an extended producer responsibility (EPR) scheme have to be materially labelled with the ‘Triman logo’, signage informing that the product is the object of sorting rules, and the ‘infotri’, information specifying the methods for sorting.

The provision of waste sorting instructions to consumers is currently not governed by harmonised EU rules. National laws adopted in this field shall not create unnecessary burden internal market trade. In this context, the imposition of national-specific labelling requirements risks undermining the principle of free movement of goods and can lead to counterproductive environmental effects. Such measures can also lead to increased material needs for additional labelling and additional waste produced due to larger than necessary sizes of the packaging.

The French authorities do not seem to have conducted a sufficient analysis of the proportionality of their policy choice as other suitable options, less restrictive of trade between Member States, are available. France is also in breach of the notification obligations under the Single Market Transparency Directive (Directive (EU) 2015/1535) to the extent that the law was not notified to the Commission at a draft stage, prior to adoption. France now has two months to address the concerns raised by the Commission. Otherwise, the Commission may decide to send a reasoned opinion to France.

[1] Unlike what re_Fashion suggests, there is no obligation to affix the logo on the product. The logo can also be depicted on the packaging or on a document supplied with the product.

[2] See TRIS/(2020) 03628. Not publically available. Available for free with the author upon request.

[3] SOLVIT – EU rights problem solving when working, living or doing business in another EU country – European Commission (europa.eu)

The New EU General Product Safety Regulation Will Be A Game Changer

By Rutger Oldenhuis LLM

Introduction
Last December, the text of the long-awaited EU General Product Safety Regulation (GPSR) was finalized, which will replace the outdated EU General Product Safety Directive. The GPSR is expected to come into force by the end of 2024. The ink has yet to dry, but one thing is certain: selling consumer products in the EU will never be the same. In this article I summarize the main highlights of the GPSR.

Regulation
First of all, it is a Regulation and not a Directive. A Regulation has direct effect in all EU Member States, without the intervention of national legislators. A Directive needs to be transposed into national law and often allows Member States to include deviating provisions, which obviously jeopardizes the single market principle. That is no longer possible with a Regulation. The provisions of the GPSR therefore apply in full in all EU Member States.

Safety net
Like the GPSD, the GPSR is a legal safety net, but it contains more extensive and more far-reaching provisions than the GPSD. Some of the provisions do not apply to products covered by Union harmonisation legislation since they are already covered in such legislation. Other provisions do apply in order to complement Union harmonisation legislation, for example when certain types of risks are not covered by that legislation. This sometimes makes it a difficult puzzle to determine which provisions of the GPSR do or do not apply to a specific product. It is important to note that the provisions on e.g. recalls and remedies apply to all products within the scope of the GPSR.

Introduction of ‘health’
Remarkably, the GPSR refers to the WHO definition of ‘health’: “The World Health Organization defines ‘health’ as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” The term ‘product safety’ thus takes on a much broader meaning and a whole new dimension. The following examples show what this can mean in practice.

A Dutch company that sells tableware introduced a new product line called ‘Dutch Glory’. This product line – in addition to (the typical Dutch) pancakes, cheese, clogs and tulips – also featured an illustration of a smiling Anne Frank. After criticism, the company has withdrawn the products from the market.

Another example that comes to mind is a case where a manufacturer of play clay took a “phallic-shaped toy” off the market because some parents had complained about it.
Based on the broad interpretation that the GPSR uses for safety and health, we may expect more of these types of recalls.

Risk assessment (pre-market)
Compared to the GPSD, much more attention is paid to risk assessment in the GPSR. Unless already covered by Union harmonization legislation, the GPSR prescribes that manufacturers must carry out an internal risk analysis and draw up technical documentation. In other words, in most cases a manufacturer will have to carry out a risk analysis and prepare technical documentation before a product is put on the market. In line with the previous paragraph, it is remarkable that ‘mental health’ must also be included in that risk assessment.

The GPSR for example stipulates that a risk assessment “[…] should take into account the health risk posed by digital connected products, including on mental health, especially on vulnerable consumers, in particular children. Therefore, when assessing the safety of digital connected products likely to have an impact on children, manufacturers should ensure that the products they make available on the market meet the highest standards of safety, security and privacy by design in the best interests of children.”

This may influence the way we assess the risks of for example gaming and social media. And what to think of the metaverse?

QR code not accepted as sole means of product information
The QR code seems to be commonly accepted as a means to product information and instructions. However, despite heavy lobbying, the GPSR does not accept E-labelling as a replacement for old-fashioned labelling and thick multilingual manuals.

Online platforms are the new market surveillance authorities
An entirely new section has been included with obligations for ‘providers of online platforms’. This seems to be a real game changer for both providers of online platforms and all economic operators who sell products through online platforms. Although providers of online platforms are not liable for the compliance and safety of the products themselves sold through their platform, they must ensure – through a battery of due diligence obligations – that traders using their platform only sell products that comply with applicable laws and regulations.

This makes providers of online platforms de facto the new ‘gatekeepers’ when it comes to product compliance and safety. Since most traders sell products through online platforms, this could have a tremendous (and hopefully positive) impact on the level of product compliance and safety. If traders want to sell their products via Amazon or the like, they should be in control of their product compliance and safety processes. In case of repeated non-compliance, pursuant to the GPSR, providers of online platform will have to suspend their services to this trader until further notice.

Traders outside the EU selling directly to the EU should establish in the EU
Pursuant to the GPSR, without having a representative established in the EU, economic operators established outside the EU can no longer sell directly to consumers in the EU through online channels. The representative established in the EU will be the person or company to be addressed if products do not comply with EU legislation.

Accident reporting duty
The GPSR introduces an obligation for manufacturers to report “without undue delay” accidents caused by products they have placed on the market. Accidents are defined as occurrences that resulted in an individual’s death or in serious adverse effects on their health and safety. The report must be made to the competent Market Surveillance Authority of the Member State where the accident occurred. Importers and distributors also play an important role: they must report accidents to the manufacturer.

Do you have a recall plan?
The GPSR prescribes that economic operators shall ensure that they have internal processes for product safety in place, allowing them to comply with the relevant requirements of the GPSR. This also means there must be a recall plan in place. Again, a reservation must be made in regard to products subject to specific Union harmonization legislation. In any case, it is highly recommended to properly safeguard internal processes for product safety within an organization.

Recall? At least two remedies
In the event of a recall, the GPSR stipulates that consumers should be given a choice of at least two of the following remedies: repair, replacement or a refund. Consumers may only be offered one remedy if the other remedies are impossible or disproportionate. This obviously leads to discussion about what is meant by ‘disproportionate’.

A snag that can make the burden of a recall even bigger than it already is
EU legislation normally excels at vague texts and open norms, which need further clarification by means of guidelines or are expected to be further fleshed out by judges in court. It is therefore remarkable that some provisions of the GPSR contain very detailed provisions, which you would normally expect to see in the form of a guideline. On the one hand that is commendable, on the other hand it can be very tricky.

To give an example: the GPSR prescribes that in the event of a recall, the consumer must be instructed to immediately stop using the affected product. In addition, the GPSR stipulates that, in the event of a recall, the economic operator must collect the unsafe product from the consumer if it is not portable. If we take this literally, for example, consumers should stop using an unsafe car immediately and the car should be collected from the consumer by the manufacturer (or dealer). The question is whether this is really intended. It would undoubtedly lead to a logistical nightmare and a huge financial burden. Stakeholders seem to have overlooked this in the drafting phase of the GPSR.

It will be easier for consumers to submit complaints to authorities
The ‘Union rapid information system’, also known as ‘RAPEX’, will be modernised to enable more efficient corrective measures to be taken across the EU. One of the aims is to make it easier to inform the public and enable consumers to submit complaints. Manufacturers and their reputation for product quality and safety will therefore be more exposed.

Penalties
As a final comment, it is important to realise that the GPSR introduces penalties for those who violate the GPSR. It is not yet clear how high these penalties will be, but it is expected that they will play a significant deterrent effect for economic operators.

Concluding remarks
A new wind is blowing in the EU in the field of product safety. Although the GPSR is not perfect, we can only welcome its arrival. Clearly, if you sell consumer products in the EU, you need to have your product compliance and safety processes in place. Only companies that take product safety seriously will be the winners in a market where product laws and regulations are becoming increasingly complex and demanding.

To Avoid Crisis Or Be Prepared

QuickScan
Placing only safe products on the market should be part of every consumer goods organizations strategy and corporate culture. It should not be the responsibility of one person or department, but a responsibility that is shared across multiple disciplines. Creating and enhancing a product safety culture within your organization is first of all a matter of connecting the dots. To help organizations enhancing their product safety processes, RecallDesk has developed a QuickScan. This QuickScan is largely based on ISO standards 10377 and 10393, added with own knowledge and experiences. The ISO standards have multiple layers that allow you to go as deep into your product safety processes as your company may wish. This QuickScan has filtered out only those product safety aspects that – when solved or paid attention to – may offer you quick wins.

Product compliance
In today’s complex and ever-changing regulatory landscape, ensuring product compliance is crucial for businesses seeking to bring their products to market, maintain consumer trust, and avoid legal and financial repercussions. Product compliance plays a pivotal role in safeguarding consumer health and safety. Many countries and regions have specific regulations and technical standards that products must meet before they can be legally sold or imported. At RecallDesk, we specialize in product compliance and offer comprehensive services tailored to your specific industry and needs. We assist you in understanding the complex regulatory landscape, conducting compliance audits, developing compliance strategies, and navigating through certification processes. Whether you are launching a new product, expanding into new markets, or seeking to ensure ongoing compliance, RecallDesk is dedicated to providing you with practical legal advice, proactive risk management, and effective solutions.

Risk assessment (pre-market)
When bringing a new product to market, it’s important to take the time to conduct a thorough risk assessment before launching. This process helps to identify potential hazards associated with the product and ensures that steps are taken to mitigate these risks. RecallDesk conducted multiple risk assessments for its clients.

By performing a product risk assessment, you can:

  1. Identify potential hazards: A risk assessment can help you identify potential hazards associated with your product, such as safety risks, health risks, and environmental risks.
  2. Evaluate the likelihood and severity of those hazards: Once potential hazards are identified, you can evaluate the likelihood and severity of each hazard. This helps you prioritize which risks are most critical to mitigate.
  3. Develop risk mitigation strategies: With an understanding of the potential hazards and their severity, you can develop strategies to mitigate those risks. This may include modifying the product design, changing manufacturing processes, adding warning labels or instructions, or providing protective equipment.
  4. Ensure compliance with regulations: Conducting a risk assessment can also help ensure that your product complies with relevant regulations and standards, reducing the risk of liability and potential legal issues down the line.

Overall, performing a product risk assessment is an essential step in ensuring that your product is safe, compliant, and successful in the market. Don’t skip this critical step – take the time to assess potential risks and put mitigation strategies in place before launching your product.

Product manual
A good product manual is an essential component of any successful product. It provides customers with the information they need to use your product safely and effectively, and can also help reduce the number of customer support inquiries and returns.

Here are some of the reasons why a good product manual is so important:

  1. Helps customers use the product safely: A well-written product manual provides clear and concise instructions on how to use the product safely. This includes information on any potential hazards or risks associated with the product, as well as instructions on how to avoid them.
  2. Improves customer satisfaction: When customers have access to a clear and easy-to-use product manual, they are more likely to be satisfied with their purchase. A good manual can help customers feel more confident in their ability to use the product, reducing frustration and increasing overall satisfaction.
  3. Reduces customer support inquiries: A comprehensive product manual can also help reduce the number of customer support inquiries you receive. When customers have access to clear instructions and troubleshooting information, they are less likely to need additional assistance from your support team.
  4. Minimizes returns and warranty claims: A good product manual can also help reduce the number of returns and warranty claims. When customers have access to clear information on how to use the product and troubleshoot common issues, they are less likely to return the product or make a warranty claim.

A good product manual builds on the risk assessment (pre-market) and is an essential tool for any product-based business. It helps ensure customer safety, improves satisfaction, reduces support inquiries and returns, and can even help increase sales. If you’re launching a new product, be sure to invest the time and resources into creating a high-quality product manual. RecallDesk can help you with that.

Contractual arrangements
With our legal expertise RecallDesk can help you making sure that responsibilities and liabilities around product compliance and recalls are contractually well-stipulated, in the upstream as well as downstream supply chain.

Recall plan
Having a recall plan ready gives you immediate control in times of crisis, saving time and money. A recall plan typically includes a recall procedure, the names/functions of the recall team, a checklist, a contacts list, useful templates, and so on. A recall plan should be tailored to the organization using it. RecallDesk has drafted numerous recall plans for clients across diverse industries, including the automotive sector.

RecallDesk News BlogsRecall training & workshops
Organizing recall training and workshops can be highly beneficial for companies with a heightened risk of product recalls. Conducting recall simulations is particularly valuable for training recall teams and preparing organizations for potential incidents. RecallDesk offers comprehensive training programs to fulfill these needs.

Webinars
Rutger Oldenhuis LLM speaks regularly as an expert at various occasions and events. Reach out to us if you are interested to host or join a webinar.