European law report - Taking play seriously
EU toy manufacturers and importers will soon be faced with more stringent requirements in ensuring the safety of the products that they place on the EU market. The European Commission recently tabled a proposed law which will enhance toy safety standards imposed by current EU rules in order to reduce toy-related accidents.
Current EU rules regulating the toy industry date back to some 20 years ago. This fact, coupled with the recent spate of recalls from the EU market of a considerable number of China-made toys, seems to have increased the Commission's determination to ensure that only safe toys reach EU consumers. Following extensive consultation with interested parties, the Commission deemed that it was high time to update and modernise the current EU rules regulating the toy industry, in particular to keep up with technological progress. The proposed law has three main objectives: to impose new and higher safety requirements to cope with recently identified hazards; to strengthen manufacturers' and importers' responsibility for the marketing of toys; and to enhance the market surveillance obligations of EU member states.
The new toy safety measures proposed by the Commission primarily aim to ban toxic chemicals in toys. The proposed law prohibits the use of chemical substances, so-called CMRs, that may cause cancer. It also reduces the allowed limits of certain dangerous chemical substances like lead or mercury to be used in toys. Allergenic fragrances are strictly prohibited.
Toy manufacturers are obliged to issue appropriate warnings to improve the prevention of accidents. They must also provide comprehensive technical information for all their toys in order to allow the market surveillance authorities of member states to check the design and manufacture of a particular toy.
The proposed law also seeks to strengthen the rules to prevent accidents due to small parts in toys. Toys which are firmly attached to a food product at the moment of consumption and which require food to be consumed before getting access to the toy will be strictly banned. In line with these new rules, the visibility of the CE mark on a toy will be enhanced. The proposed law improves on current legislation regulating CE marking on toys. Thus, in line with current legislation in force, it provides that the CE marking shall be marked either on the toy or the packaging or, in the case of small toys, on a label or accompanying leaflet. However, it further stipulates that the CE marking will always be affixed on the packaging if the marking on the toy is not visible from outside the packaging. The new law will reinforce an importer's responsibility for ensuring that toys imported into the EU are safe. Importers and distributors are obviously not in a position to ensure themselves that the design and production of the toy is in compliance with the applicable requirements. However, they still have the duty to put in place controls to ascertain whether the manufacturer has fulfilled his obligations. This means that importers and distributors are obliged to ensure that the toys that they market bear the required CE marking and that the required documents have been supplied by the manufacturer.
On the other hand, an importer or a distributor who either places a toy on the market under his own name or trademark or who modifies a toy is deemed for all legal purposes to be a manufacturer. His obligations are therefore equivalent to those of a manufacturer and must ensure at all times compliance with the applicable requirements for all toys that he places on the market.
Distributors and importers, being close to the market place, are also expected to participate actively in market surveillance tasks carried out by national authorities and must be prepared to provide the competent authorities with all necessary information relating to the toys that they market.
A number of obligations are also imposed on member states, which are obliged to strengthen market surveillance and controls on the spot and at the EU borders. Member states must also stipulate and impose penalties if toy manufacturers/importers do not produce toys in line with the safety requirements of the directive. These new rules have been met by a mixed reaction from the players concerned. While European Consumer organisations are calling for more stringent requirements, particularly in so far as chemical substances in toys are concerned, industry maintains that the new proposal will raise many challenges for the industry, in particular when it comes to the practical implementation of the new rules.
Dr Vella Cardona is a freelance consultant in EU intellectual property and competition law. She is also a visiting lecturer at the University of Malta.
Current EU rules regulating the toy industry date back to some 20 years ago. This fact, coupled with the recent spate of recalls from the EU market of a considerable number of China-made toys, seems to have increased the Commission's determination to ensure that only safe toys reach EU consumers. Following extensive consultation with interested parties, the Commission deemed that it was high time to update and modernise the current EU rules regulating the toy industry, in particular to keep up with technological progress. The proposed law has three main objectives: to impose new and higher safety requirements to cope with recently identified hazards; to strengthen manufacturers' and importers' responsibility for the marketing of toys; and to enhance the market surveillance obligations of EU member states.
The new toy safety measures proposed by the Commission primarily aim to ban toxic chemicals in toys. The proposed law prohibits the use of chemical substances, so-called CMRs, that may cause cancer. It also reduces the allowed limits of certain dangerous chemical substances like lead or mercury to be used in toys. Allergenic fragrances are strictly prohibited.
Toy manufacturers are obliged to issue appropriate warnings to improve the prevention of accidents. They must also provide comprehensive technical information for all their toys in order to allow the market surveillance authorities of member states to check the design and manufacture of a particular toy.
The proposed law also seeks to strengthen the rules to prevent accidents due to small parts in toys. Toys which are firmly attached to a food product at the moment of consumption and which require food to be consumed before getting access to the toy will be strictly banned. In line with these new rules, the visibility of the CE mark on a toy will be enhanced. The proposed law improves on current legislation regulating CE marking on toys. Thus, in line with current legislation in force, it provides that the CE marking shall be marked either on the toy or the packaging or, in the case of small toys, on a label or accompanying leaflet. However, it further stipulates that the CE marking will always be affixed on the packaging if the marking on the toy is not visible from outside the packaging. The new law will reinforce an importer's responsibility for ensuring that toys imported into the EU are safe. Importers and distributors are obviously not in a position to ensure themselves that the design and production of the toy is in compliance with the applicable requirements. However, they still have the duty to put in place controls to ascertain whether the manufacturer has fulfilled his obligations. This means that importers and distributors are obliged to ensure that the toys that they market bear the required CE marking and that the required documents have been supplied by the manufacturer.
On the other hand, an importer or a distributor who either places a toy on the market under his own name or trademark or who modifies a toy is deemed for all legal purposes to be a manufacturer. His obligations are therefore equivalent to those of a manufacturer and must ensure at all times compliance with the applicable requirements for all toys that he places on the market.
Distributors and importers, being close to the market place, are also expected to participate actively in market surveillance tasks carried out by national authorities and must be prepared to provide the competent authorities with all necessary information relating to the toys that they market.
A number of obligations are also imposed on member states, which are obliged to strengthen market surveillance and controls on the spot and at the EU borders. Member states must also stipulate and impose penalties if toy manufacturers/importers do not produce toys in line with the safety requirements of the directive. These new rules have been met by a mixed reaction from the players concerned. While European Consumer organisations are calling for more stringent requirements, particularly in so far as chemical substances in toys are concerned, industry maintains that the new proposal will raise many challenges for the industry, in particular when it comes to the practical implementation of the new rules.
Dr Vella Cardona is a freelance consultant in EU intellectual property and competition law. She is also a visiting lecturer at the University of Malta.
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