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Where We’re Going, We Don’t Need Roads

Where We’re Going, We Don’t Need Roads

Pauline McCulloch

Back To The Future 2 predicted that by 21 October 2015 we would be racing around the streets on hoverboards. It wasn’t far off – hoverboards were certainly flying off the shelves at the end of 2015. Not literally of course, since contrary to their name, they didn’t actually hover.

This didn’t put many children off though, and hoverboards were at the top of many a Christmas list - the “must have” for any child with an ounce of street cred (or a Marty McFly fanatic parent).

This success was short-lived. Before Christmas had even hit, stories filled the press of hoverboards catching fire or even exploding, with the potential for serious injury in many cases. The Trading Standards Authority issued a warning to buyers, stating that a high proportion of the products were found to have failed safety testing. At home, parents were forced to convince children that hoverboards were not in production at Santa’s workshop.

What then of the hoverboard companies who arrived on to the scene with a product that as recently as 1989, seemed fantastical? As technology develops, how can companies who invent cutting edge gadgets ensure that they stay on the right side of safety laws?

There are obligations on producers to ensure that the products they put on the market are safe. A “producer” can include a manufacturer, own-brander and, where the manufacturer is based outside of the EU, the importer of a product.

Producers must provide consumers with adequate warnings of risks of a product, such as warnings on the product packaging and clear instructions for use. In addition, producers must take precautions against these risks, for example, by having quality control procedures in place such as adequate pre-market testing of the product. Producers are also required to keep themselves informed of any risks that have arisen with the product after sale, through post-market product surveillance.

If a producer discovers that products are unsafe then they have an obligation to notify the relevant enforcement authority (in Scotland, the local district council, or a specific sector enforcement agency), and then take action to remove the risks involved. This is the case even where the product has not actually caused a consumer injury at that point, but where there is the potential for it to do so. In some cases, such action may even include a product recall, as a last resort.

Failure to comply with these obligations, or where any action that has been taken is unsatisfactory or insufficient to prevent the risks, may result in enforcement action by the relevant authority. These enforcement powers include requiring suspension of sale, withdrawal from the market or recall of the product, as well as imprisonment and fines.

In addition to the legal obligations placed on producers, it makes reputational sense to take prompt action against any issues arising with your products, especially where a safety concern has been raised.

As technology becomes a driving force in our economy, it is crucial that companies take steps to protect themselves against exposure when products go wrong. Otherwise, they may be left wishing they could turn back the clock.

Pauline McCulloch
Senior Solicitor

This article was published in The Herald on 21 March 2016. To view it click here.