Mandatory safety standards have force under the Australian Consumer Law (Cth) (ACL) once the Commonwealth Minister declares that certain minimum standards should exist in relation to goods and product-related services. These are known as “Mandatory Standards” (Mandatory Standard or Standard) and will apply to manufacturers, wholesalers, hires and retailers. This article will set out how Mandatory Standards come about, and examples of what a business must meet before selling their product.
The Mandatory Safety Standards
Section 104 of the ACL gives the Commonwealth Minister power to make certain safety standards in relation to goods and product-related services. The Product Safety Australia website then lists all the current Standards and product safety information. There are presently 41 Mandatory Standards placed on children’s clothing, toys, infant and nursery products, sports gear, cosmetics and so forth.
These Standards outline the minimum requirements a product must meet before they are supplied to a business or the public. The specified requirements will include any design, processes or testing, warning or instruction requirements of the goods that are necessary to avoid or reduce the risk of injury to a consumer. We will now outline some of the Standards that currently exist.
Mandatory Standard’s exists in relation to the labelling of tobacco products. The Standard subsists in the Competition and Consumer (Tobacco) Information Standard 2011 (Tobacco Standard). Of note, there are additional requirements under the Tobacco Plain Packaging Act 2011 and Tobacco Plain Packaging Regulations 2011. The Tobacco Standard applies to all tobacco products, which are manufactured in, or imported into, Australia.
The Tobacco Standard states that the purpose of the Standards is to provide a system of warnings and informative messages to customers. The application of the Tobacco Standard is that health warnings must cover a “significant part” of a retail tobacco packet. The packaging must be labelled with:
- Warning statements;
- Specific graphics;
- Explanatory messages;
- Information messages.
Sunglasses & Fashion Spectacles
Mandatory Standard’s exist in relation to sunglasses and fashion spectacles. The Consumer Protection Notices No.13 of 2003 set out the Standard (Spec Standard).
The purpose of the Spec Standard is to create a uniform testing and classification procedure for sunglasses and fashion glasses. The application of the Spec Standard requires that sunglasses and fashion spectacles are accurately labelled and tested in a particular manner. For example, the Standard requires suppliers test sunglasses and fashion spectacles through specialist laboratories and then classify them in a five-category system. The five-category system is as follows:
- Lens Category 0: Fashion spectacles – not sunglasses; very low sun glare reduction; some UV protection.
- Lens Category 1: Fashion spectacles – not sunglasses; limited sun glare reduction; some UV protection; not suitable for driving at night.
- Lens Category 2: Sunglasses; medium sun glare reduction; good UV protection.
- Lens Category 3: Sunglasses; high sun glare reduction; good UV protection.
- Lens Category 4: Sunglasses – special purpose; very high glare reduction; good UV protection; must not be used when driving. Here, a further symbol (car with a cross through it) must be included.
As is evident, Mandatory Standards are imposed to protect customers and provide uniformity in their shopping experience for particular products. However, some products need to be banned. If there is a risk that goods or product-related services will cause serious injury, illness or even death, the ACL provides a procedure in which the products may be banned. A responsible Minister may ban a product:
- Temporarily (for 60 to 120 days); or
Serious penalties exist if you even offer to sell a banned product. The penalty can be up to $1.1 million for a corporation or $220,000 for individuals. A list of currently banned products exists on Product Safety Australia website.
When a safety problem is identified in a product, the product must be recalled (withdrawn). Recalls may occur in two ways:
- A supplier may voluntarily initiate a recall of a product if the product poses a risk of injury or fails to comply with the relevant Standard.
- Under section 122 of the ACL, a responsible Minister may publish on the internet a “recall notice”. A recall notice will be published, and when this is done, it is an offence to sell that product. Failure to comply with a recall notice may incur a penalty of up to $1.1 million for corporations or $220,000 for individuals.
A business must be aware of the Mandatory Standards that exist in relation to their products and comply with those Standards. It is prudent that proper procedures for ensuring continuous compliance with these Standards is embedded into the business culture.
If you have any questions about the mandatory safety standards your business must satisfy before selling its prodcut, get it touch with our consumer lawyers on 1300 544 755.