Notification of a dangerous product under the GPSD may lead to product liability consequences

From 14 January 2004, producers and distributors products are obliged under Directive 2001/95 (the GPSD) to notify the authorities if they have placed an UNSAFE consumer product on the market. Not all Member States have yet implemented this requirement - the UK may not do so before the end of 2004. Companies may face difficult decisions in deciding whether individual circumstances need to be notified or not, depending on their assessment of whether the safety risk of the product is "minimal" and "acceptable". This situation will only be made more difficult by the risk that the fact of notification is likely to be picked up by consumer lawyers and used as an admission in subsequent product liability claims.

The act of notification signifies that the producer or distributor has placed a product on the market that is legally considered to be dangerous, that is it does not satisfy the legal definition of a safe product. It is likely that claimants will argue that the fact of notification is either a positive admission, or at least strong evidence, of liability, for example because the product is defective. There is considerable similarity between the definition of a safe product in the GPSD and the definition of a defective product in Directive 85/374 on product liability: the former was modelled on the latter, at least in relation to the matters to be taken into consideration, and even if the wording of the two tests initially seems to diverge, the results must be similar in many cases. The liability test is "the level of safety that persons are entitled to expect" and the regulatory test is "minimum acceptable risk". It seems inevitable that arguments will arise on this topic.

Prudent notifiers should, therefore, pay careful attention to the form of words that they use when notifying, so as to seek to minimise the product liability risk. Some companies may be uncertain over whether their product is in fact legally dangerous and, therefore, whether they have a duty to notify. In this situation, adopting particular wording so as to indicate that the notification is provisional, without prejudice, or tentative, may be important

Notification should not necessarily imply that a producer or distributor was negligent, since notification is merely evidence of the conclusion as to the regulatory status of the product, rather than of the conduct of any specific individual which may have caused that status, or that such conduct was unreasonable.

For further details please contact Christopher Hodges at [email protected]