Legal safety requirements of selling second hand goods such as toys or electrical items
By Suzanne Dibble of Lawyers4mumpreneurs
If you are selling certain second hand goods in the course of a business, a number of consumer protection and safety regulations will apply.
General product safety law is found in the General Product Safety Regulations 2005. This Act applies equally to the sale of second hand goods as it does to new goods. Under these regulations, it is an offence (punishable by up to a £20,000 fine and a year in prison) for you (i) to sell a product which you know or should have presumed is a dangerous product, (ii) to fail to participate in monitoring the safety of a product you have sold (by passing on information on the risks posed by the product, keeping and producing the documentation necessary for tracing the origin of the product, and cooperating in action taken by a producer or an enforcement authority to avoid risks) and (iii) to fail to notify an enforcement authority when you know that a product poses safety risks. You do however have the defence of ‘due diligence’ if you can show that you took all reasonable steps and exercised all due diligence to avoid committing the offence.
There is no specific guidance on ‘all due diligence’ and the steps you should take to ensure that the product is safe. Things you can do to check the safety include checking the CE marking and the EC Declaration of Conformity, checking that there are no loose wires or accessible live components, checking that the product’s voltage, currency and frequency are marked clearly and, for complete peace of mind, arranging electrical testing of the product. You should of course also make sure that all instructions and safety information are included with the product. Finally, you should keep careful records of the producer, importer and anyone else in the supply chain, provide your customers with an easy forum to raise complaints and notify the producer and/or the authorities as soon as you discover a safety defect.
Specific regulations apply to the sale of toys and electrical items, namely the Electrical Equipment Safety Regulations and the UK Toys (Safety) Regulations. For the sale of toys, you would be wise to look at the particular risks set out in a government note on toy safety which can be found at http://www.berr.gov.uk/files/file11286.pdf and satisfy yourself that these risks don’t exist. Likewise for the sale of electrical equipment, have a look at Annex A of the government guidance note found at http://www.berr.gov.uk/files/file38623.pdf.
The Consumer Protection Act 1987 is the main Act that gives consumers the right to bring a claim against you for loss suffered from defective products. If you do not supply own brand products or import products from outside the EC, customers are unlikely to be able to bring a claim against you as long as, when requested, you provide the customer with details of the producer, importer or own brander of the product. However, if you are a seller who has put your name or trademark on the product or has imported the product from outside the EC, you may very well be subject to additional liability under this Act, unless you can provide one of the requisite defences.
With regard to product liability insurance, it is not required by law but you may think it advisable for your business, particularly if you are a seller who has put your name or trademark on the product or has imported the product from outside the EC and are therefore facing more stringent liability under the Consumer Protection Act 1987. However this insurance will only cover you for any loss suffered as a result of a civil claim from a customer who has suffered loss, and not against any criminal sanctions. Hence your best course of action will always be to check the safety of the product before sale.
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