Helmet hair

By Rutger Oldenhuis LLM

Swedish Hövding revolutionized cyclist safety with an innovative airbag system. Claimed to offer up to 8 times better protection than traditional helmets, Hövding sold over 300,000 units over a span of 12 years. The avoidance of “helmet hair” is an important and notable advantage of using an airbag instead of a traditional helmet. No wonder Hövding’s main market is Sweden, where urban cyclists are particularly mindful of their appearance.

However, a shocking turn of events occurred in December 2023 when Hövding’s board filed for bankruptcy, resulting in the loss of jobs for 42 employees and 8 consultants. This decision stemmed from the Swedish Consumer Agency’s actions: a temporary sales freeze on November 1, 2023, followed by a permanent sales freeze and product recall on December 15, 2023. The Swedish Consumer Agency (SCA) alleged that the airbag failed to activate in 27 reported incidents, leading to head injuries.

One factor that may have influenced the SCA’s decision was the late 2022 release of a secret recording by Swedish media from within Hövding. This recording fueled allegations that the company was aware of design flaws in the airbag but continued to sell it nonetheless.

Despite the potentially incriminating recording, Hövding successfully contested SCA’s conclusions before the Administrative Court. According to the Court’s ruling, Hövding argued that the 27 cases did not justify claims that the airbag provided inadequate protection. They explained that their product’s algorithm aligned with its intended design and conducted risk assessments in line with European Commission guidelines. These assessments indicated a low risk of head injury due to inadequate protection. Collectively, these reported cases did not warrant an immediate recall of all airbags from the Swedish market.

The Court recognized that the airbag must be designed to provide cyclists with adequate protection, but it also observed disagreements between Hövding and the SCA on the extent, likelihood, and severity of risks associated with using the product, as well as its intended protective capabilities. Considering this ongoing dispute and recognizing the substantial impact of a prohibition on Hövding’s business and legal challenges, the Court determined that the appealed decision would not take effect until the Court made a final ruling. Interestingly, the secret recording didn’t appear to impact the Court’s decision. Hövding’s request for suspension of the permanent sales freeze and recall was approved, offering a glimmer of hope. However, the damage inflicted by SCA’s actions proved insurmountable, leading to the company’s closure.

This case underscores the potential repercussions of regulatory actions on businesses as well as the importance of comprehensive risk assessment in case of a suspected unsafe product. A well-prepared risk assessment can significantly assist a business in demonstrating that a recall would not be proportionate.

While supervisory authorities play a crucial role in safeguarding society from harmful products, similar to businesses, they are also required to adhere to specific rules and guidelines. This court case illustrates that a supervisory authority cannot simply disregard this fact, especially without providing further justification or conducting their own risk assessment. All too often, supervisory authorities ignore their responsibilities to carry out a risk assessment as a basis for deciding what corrective action is necessary and proportionate. It is reassuring to witness a court recognizing this and reminding the authority of their responsibilities.

This case also emphasizes the value of taking legal action when disagreeing with regulatory decisions. Unfortunately, in Hövding’s case, this action came too late, affecting not only the company but also the fashionable cyclists of Sweden, who now face the return of “helmet hair”.