A proposed law regarding product safety (the "Proposed Law") is on the agenda of the Turkish Grand National Assembly. The Proposed Law represents a step in harmonising the Turkish product safety rules with the European Union ("EU") legislation.
If the Proposed Law is to pass, it will replace the Law relating to the Preparation and Implementation of the Technical Legislation on Products1 (the "Technical Legislation Law"). The Proposed Law sets out detailed product liability provisions for commercial entities and more comprehensive obligations on manufacturers, importers, authorised agents and distributors in comparison to the Technical Legislation Law.
Although one of the rationales for the adoption of the Proposed Law is to unify the otherwise complex and scattered product safety legislation, the legislation falls short in that respect as it still acknowledges the requirement for the issuance of various product safety regulations by different administrative authorities.
Under the Proposed Law, any product introduced to the market should be "safe" which, for these purposes means, in compliance with the technical specifications set out in the relevant product safety regulation.
According to the Proposed Law, the manufacturer's obligation to ensure that products are safe and bear the adequate instructions and warnings for their users to use them safely extends also to distributors and importers who market the product under their brand or those who change the product to an extent which would affect the compliance of the product with the relevant product safety regulation (together with the manufacturer, the "Obligated Parties").
The Obligated Parties will also be required to implement and enforce procedures to assess the conformity of their products and retain the records related to these procedures for at least ten years.
In case loss is suffered by a user due to non-compliance with the product safety regulations, the Obligated Parties will be liable. In case the loss arises due to the non-compliance by a number of Obligated Parties in the supply chain, these parties will be jointly and severally liable.
The Proposed Law regulates the concept of withdrawing a product from the market or recalling a product from users in case such product is not safe. This obligation regarding a product, which is not in conformity with safety regulations, will lie with the manufacturer. In case the product in question is imported, the importer will carry out the task to recall the product. Besides, distributors will have to ensure that the manufacturer or importer, as applicable, of a product takes appropriate measures such as withdrawing the product from the market or recalling the product from users.
Another obligation imposed, perhaps a tedious one as well, is the obligation of commercial entities to maintain the records of their counterparts in their upward and downward supply chains. Entities will have to store these records for ten years. Not surprisingly, due to the practical impossibility, commercial entities will not be under an obligation to keep the records of end customers to whom they have sold a product. Distributors should especially pay close attention to comply with this obligation. If the origin of a product is unknown (i.e. if the authorities cannot trace the manufacturer or the importer), the distributor will be responsible to provide the authorities with the contact details of the commercial entity from which they acquired the product and failure to do so will trigger administrative penalties and may render the distributor liable for any loss such product caused.
In addition to any damages which may be payable by the Obligated Parties to users of the products, the Proposed Law introduces a number of administrative fines ranging from TL 10,000 to TL 200,000. Further, in certain instances the authorities may even require the relevant entity to permanently cease certain activities.
Businesses and consumer associations welcome the authorities' efforts to further the harmonisation process with the EU legislation. The Proposed Law introduces higher standards for safeguarding the rights and safety of consumers. Even though additional obligations and tougher sanctions are on the horizon for commercial entities, businesses are content with the bill as it will enhance the reputation of Turkish products abroad by setting robust standards.
Manufacturers should be on alert that if the Proposed Law is to pass the legislation procedure in the Grand National Assembly, many of them will have to implement new technical information gathering and traceability procedures, and will have to revise their contractual arrangements, including their terms and conditions of sale to bring them in line with the new legal framework.
1 The Law relating to the Preparation and Implementation of the Technical Legislation on Products numbered 4703 and published in the Official Gazette and dated 11 July 2001 and numbered 24459
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