On September 29th of 2023, Professor Fabrizio Esposito participated in the Expert Hearing on the Legislative Proposal for a Regulation on Toys Safety. Specifically, he shared some of his observations regarding the Draft Toy Safety Regulation – with a focus on what, in his expert opinion, is missing from said draft.
Regarding Articles 5 and 6, Fabrizio’s “general concern is that the text formulates provisions for the consumer of toys using the same language used in general consumer law – but, here, we talk about children and their supervisors. See, for example, Article 6(3) talking about warning that are marked «in a clearly visible, easily legible and understandable and accurate manner». For whom? The supervisor? The child? Article 5(2) points us in a different direction with regard to safety: «bearing in mind the behavior of children». Therefore, he suggested that “the warnings of Article 6 should also «bear in mind the development of the children» and, borrowing from Article 5 even more, «… children who are intended or is foreseeable that will use the toy» – something similar to the clearly identifiable average consumer in Article 5(3) Unfair Commercial Practices Directive”.
However, “even more worrying is paragraph 4, which reads as follows: «Labels and instructions for use shall draw the attention of children or their supervisors to the inherent hazards and risks to the health and safety of children involved in using the toys, and to the ways of avoiding such hazards and risks». Why labels and instructions should be addressed to either the supervisor or the child?”. With this in mind, Fabrizio proposes that “labels and instructions should be understandable by both the supervisor and the child, if necessary, using images or even videos accessible via QR code or a similar technology”.
Bringing his focus back to Article 6(3), which reads «The manufacturer shall mark warnings in a clearly visible, easily legible, and understandable and accurate manner on the toy, on an affixed label or on the packaging and, if appropriate, on the instructions for use which accompany the toy. Small toys which are sold without packaging shall have appropriate warnings affixed to them», Fabrizio argues that “manufacturers should not have unconstrained discretion to decide where to place the warning between label, packaging, or instructions. The discretion should have the aim of maximizing visibility, legibility, understanding and accuracy”.
Regarding the same provision, the NOVA Scholar refers that “warnings are not on the instructions, [therefore] this requirement is really difficult to comply with”. He also shares some doubts about “whether «before the purchase» is the only crucial time for warnings to be «clearly visible»”, suggesting that “a critical moment for the warning is immediately before the first use”.
Shifting his attention to his major concern of his intervention, he emphasizes that, according to RAPEX, “41% of toys are unsafe due to chemical substances” – which is why the Commission has chosen to intervene more intensively in this area. However, he notes that “40% of toys are unsafe due to small parts – yet there is nothing in the regulation to address this, besides a duty of sample testing on manufacturers and importers when «they consider it necessary»”. With this in mind, Fabrizio urges the Committee to also address this issue in a more effective manner.
Also, and because he fears that “product information will unlikely be a panacea”, the professor highlights the “need for more surveillance or ex-post (after the toys are marketed) regulatory approaches, to detect non-compliant toys (perhaps with the help of Toy Industries of Europe), to avoid a lemon market problem detrimental to children and fair traders alike”. However, it is also important to empower supervisors (parents and other caregivers) to keep children safe, since it “takes one committed supervisor to identify a safety issue, to the benefit of the entirety of the whole EU residents”.
From this point of view, Fabrizio then shares some of his ideas to articulate both points together.
First, “retailers should make the cylinder [used by authorities involved in the in-depth checks to identify problematic small parts] available to supervisors, together with clear instructions on how to perform and document the finding that a toy is unsafe due to small parts. A similar approach could be extended to other tests authorities make, if feasible”.
Secondly, “it should also be made clear that finding a toy to be unsafe should entitle the consumer to terminate the contract and receive full restitutions, plus a fixed indemnity to incentivize the sharing of the information with the retailer. The communication by the supervisor would then trigger the duty to report pursuant to Article 10(2) second part, thereby strengthening the system already in place on the basis of information that is already collected by parents”. However, “it should also be made clear that supervisors have the power but not the duty to report, so that their liability cannot be derived in any way from failing to report”.
Thirdly, the “economic operators who receive a safety complaint should share with the complainer a copy of the complaint. [This] will pressure the operator to inform authorities, etc., as required by the regulation”.
Finally, since enforcement is a pivotal concern, Fabrizio proposes the modification of Article 52 on penalties “to introduce at least minimum sanctions for:
(i) putting on the market unsafe products, thereby complementing the automatic barrier created by the product passport;
(ii) higher-than-minimum fines for small-parts safety issues because they are so concerning;
(iii) higher fines also for failing to report a suspected lack of conformity by an economic operator;
(iv) perhaps even criminal offenses for fake product passports and technical assessments”.
Written Observations About the Draft Toy Safety Regulation
