A number of events last year focused the attention of the general public on product safety issues, including the safety of toys. Against this background, in late 2007 and early 2008, the ACCC was active in the areas of product safety and product information.
Often regarded as a poor cousin compared to Part IV of the Trade Practices Act which deals with Restrictive Trade Practices, Part V Division 1A (Product Safety and Product Information) deserves reconsideration as a potential risk exposure for Australian manufacturers.
It provides for a range of matters including:
- the introduction of mandatory consumer product safety standards when they are thought reasonably necessary to prevent the risk of injury;
- the introduction of consumer product information standards when consumers need particular information about a product to be better informed when making choices about goods they buy;
- the recall of unsafe goods; and
- temporary (lasting 18 months) and permanent bans on the supply of unsafe goods.
Because product standards can be made by regulation and by notice in the Government Gazette, it can be difficult for companies to monitor product safety developments.
What has the ACCC been doing recently?
It has issued four mandatory standards guides about the following products:
- "Care labelling for clothing and textile products, product safety"(18 January 2008) which provides an overview of the mandatory requirements for the care labelling of clothing and textile products;
- "Baby bath aids, product safety" (18 January 2008) which explains the mandatory requirements for the supply of baby bath aids and the specific warning labels to be permanently attached to them;
- "Babies' dummies, product safety: a mandatory standards guide" (11 January 2008) which summarising the relevant product safety requirements; and
- "Cosmetics and toiletries: ingredient labelling, product information" (20 December 2007) explaining the relevant standard, the responsibilities of suppliers and retailers under it, and the ACCC's enforcement role.
The ACCC also issued a safety alert in respect of novelty contact lenses (30 November 2007). Non-prescription contact lenses, also known as cosmetic lenses, novelty lenses, crazy lenses, fancy lenses or fashion lenses are becoming increasingly popular. These contact lenses do not correct vision problems; they are coloured lenses that either enhance or change eye colour. The misuse of non-prescription contact lenses can cause eye harm ranging from mild infection to blindness. In its alert, the ACCC has provided guidelines in relation to eye protection.
Three banning orders were also made:
- an interim 18-month ban was gazetted on 19 September 2007 on children's toys having accessible material with a lead migration level greater than 90 mg/kg of lead when tested to Australian/New Zealand Standard AS/NZS ISO 8124.3:2003;
- an interim 18-month ban on toothpaste containing more than 0.25 percent by weight of diethylene glycol (DEG) was declared on 3 August 2007. DEG is a toxic substance. There have been reports of patient deaths and injuries in other countries over the past several years from ingesting DEG contaminated pharmaceutical preparations such as cough syrups. Test reports indicate that toothpaste containing DEG is still appearing in the global market, including Australia. Medium- to long-term exposure to DEG at significant levels in toothpaste may create unacceptable risks, particularly to children and individuals with kidney or liver disease; and
- an interim 18 month ban on bead toys containing 1,4-butanediol was declared on 5 February 2008. 1,4-butanediol is metabolised in the body as a drug known as "liquid ecstasy" which can cause drowsiness, loss of consciousness and seizures. This banning order follows the discovery of 1,4-butanediol in the children's toys "Bindeez".
Part V Division 1A also contains provisions requiring the notification of product recalls to the Federal Government.
A website is maintained of these notifications, www.recalls.gov.au/.
The Australian Recall website discloses that between 1 January 2007 and 31 December 2007 there were 379 recalls. This compares with 325 recalls during the previous year. The product category most frequently recalled were consumer products (174), cars (152) with food and medicines comprising 23 and 20 recalls respectively.
According to the Australian recalls website, two products were even recalled on Christmas Eve - a face painting kit and a four-piece car set.
Finally, a new Cosmetics Standard 2007 was made under the Industrial Chemicals (Notification and Assessment) Act 1989 and which came into force on 17 September 2007. The Cosmetic Standard changed the status of six categories of products (personal lubricants; face and nail products with sunscreen; skin care [moisturisers with sunscreen and sunbathing products]; antibacterial skin care; anti-acne skin care products; oral hygiene [teeth and mouth products]; and anti-dandruff hair care products) which previously treated as therapeutic goods and contains requirements regarding the composition and what claims can be made in relation to those products.
This Standard illustrates the various ways different products are regulated in Australia which sometimes is not self-evident. All cosmetic products and their ingredients must comply with the legislative requirements for cosmetics under the National Industrial Chemicals Notification and Assessment Scheme (NICNAS). New cosmetic ingredients (ie. those ingredients not already listed on the Australian Inventory of Chemical Substances are subject to notification and assessment under NICNAS (unless exempt) and all companies and individuals which import or manufacture cosmetic ingredients or products must be registered with NICNAS. In addition, a consumer product information standard made under the Trade Practices Act also applies to cosmetics and toiletries.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.