General product safety: distributors
23 August 2023
The requirements under the General Product Safety Regulations 2005 for retailers and wholesalers
This guidance is for England, Scotland and Wales
Consumer products must be 'safe'. Safety can be assessed by the application of standards; if the product complies with a designated standard*, it is automatically taken to be safe. This is known as a presumption of conformity.
[*'Designated standards' are those approved by the Secretary of State and published by the British Standards Institution (BSI).]
The General Product Safety Regulations 2005 (GPSR) provide the main basis for ensuring the safety of consumer goods by imposing certain controls. These ensure that all products intended for or likely to be used by consumers under normal or reasonably foreseeable conditions are safe.
As a retailer or wholesaler of consumer goods whose actions do not affect the safety of the goods (this is termed a 'distributor' under the Regulations), you will have certain obligations. These obligations also apply to businesses that hire out or supply second-hand goods or supply goods as part of a service.
If any of your actions do affect the safety of the goods, you become a 'producer' in the eyes of the law; see 'Producer obligations' below.
Where a product is already subject to other existing regulations (for example, toys) then those regulations will apply to that product. The GPSR do not apply to the safety of a product where there are specific provisions of UK law governing all aspects of its safety; instead, they operate as a kind of 'mop-up' set of regulations.
However, the GPSR do apply where they go further than the existing regulations in terms of the specific aspects of safety covered and the extent of the obligations on distributors. The GPSR apply to all products intended for or likely to be used by consumers (even if not intended for them) that are supplied or made available; the test would be whether a consumer can purchase the product without challenge. This includes products supplied or made available to consumers for their own use in the course of a service - for example, gym equipment for use in a gym, high chairs provided for use by diners in a restaurant and trolleys for use by shoppers.
Unlike sector-specific laws the GPSR do not permit UKCA / CE marking (in other words, the UKCA / CE mark cannot be placed on products that do not require it); however, the GPSR do require that producers and distributors only supply safe products.
The following types of consumer goods would fall within the GPSR:
- children's articles such as cots, prams, high chairs and bunk beds
- household goods such as crockery, cutlery and cooking utensils
- gardening tools
- furniture and soft furnishings
- candles and other ornaments
- hobby and art materials
If there are aspects of safety under the GPSR that are not covered by the products' own sector-specific regulations - such as the packaging of cosmetic products - then the GPSR aspects will also apply.
The Regulations also cover products that were originally designed and intended for professional use but subsequently 'migrate' on to the consumer market (such as certain power tools). Where consumers can acquire professional products, they must be treated as 'consumer goods'.
As a distributor, if you supply a 'professional use only' product to a consumer you will be responsible for its safety and if the product could never be safe for use by consumers you should take such steps as are reasonable and necessary to ensure the marketing and supply of the product is very strictly controlled.
The main obligation on a distributor is to supply a safe product.
In particular you must act with due care to help ensure that only safe products are supplied, and you must not supply products that, as a professional, you know (or should have presumed on the basis of information in your possession) to be dangerous. For example, if a product has been subject to a recall, you must not supply any that you may still have in stock.
As a distributor, you must also provide consumers with relevant information to enable them to:
- assess any risk posed by the product throughout the period of its use (where such risks are not immediately obvious)
- take precautions against those risks
This means passing on all the warnings and instructions that accompany the product.
A further obligation on distributors is to be able to show traceability of the products you supply. In practice the documentation that is required to support Inland Revenue and VAT requirements should be sufficient, as long as they show from whom the goods were purchased and, if not for retail, to whom they were sold. Such records have to be kept for a minimum of six years, which should cover your GPSR obligations.
Where you discover (perhaps as a result of a consumer complaint) that a product you have supplied poses risks to the consumer and is unsafe, you must immediately notify your supplier of the issue. In some instances - for example, where it is not easy to contact your supplier - you must then inform your local Trading Standards service.
You must cooperate with the enforcement authorities at their request. This includes the provision of information relating to the product, the nature of the risk, the product's supply and marketing, and also in taking appropriate action to remove the risk from consumers.
It is an offence under the GPSR not to fulfil these obligations.
ENFORCEMENT ACTION BY THE AUTHORITIES
Where distributors have not fulfilled their obligations under these Regulations, enforcement authorities have access to a range of measures that can be employed in removing risk to consumer safety. These are known as safety notices. They are only used when voluntary actions have not removed the risk.
All parties concerned must, whenever feasible, be given an opportunity to submit their views before the adoption of a measure.
The measure chosen will be proportionate to the seriousness of the risk.
Where there may have been a breach of the Regulations, these notices temporarily ban the placing on the market or the supply of a product while tests are undertaken and the results are awaited.
REQUIREMENT TO MARK / REQUIREMENT TO WARN
These powers allow an enforcement authority to order the marking of a product with suitable warnings where it could pose risks in certain conditions, or require that specific warnings be given to certain persons considered to be at particular risk from a product - for example, young children, the elderly, etc.
Enforcement authorities can issue a withdrawal notice to permanently prevent a person from further supplying a product that is believed to be dangerous where it is already on the market (if the voluntary action is insufficient or unsatisfactory).
If you affect the safety of the goods by any action - such as removing the goods from their packaging, assembling products, repairing products or not passing on instructions and warnings - then you become the 'producer' of the goods. In this case you will have to comply with the producer obligations under the GPSR.
See 'General product safety: producers' for more information.
The Office for Product Safety and Standards (OPSS) has published guidance notes entitled General Product Safety Regulations 2005: As They Apply to Products Being Supplied in or Into Great Britain From 1 January 2021.
For more information on the work of Trading Standards services - and the possible consequences of not abiding by the law - please see 'Trading Standards: powers, enforcement and penalties'.
IN THIS UPDATE
No major changes.
Last updated: June 2023
- General Product Safety Regulations 2005
- Product Safety and Metrology etc (Amendment etc) (EU Exit) Regulations 2019
This information is intended for guidance; only the courts can give an authoritative interpretation of the law.
The guide's 'Key legislation' links may only show the original version of the legislation, although some amending legislation is linked to separately where it is directly related to the content of a guide. Information on changes to legislation can be found on each link's 'More Resources' tab.
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