FEATURES
GENERAL PRODUCT SAFETY
AND SHORT-FILLS
BY DAI DAVIS, SOLICITOR AND CHARTERED ENGINEER
General product safety is of fundamental importance to every
business. In the worst-case scenario, the very viability of
a business can be at stake. The European Union has long
had product-specific safety legislation. Since 1992 it has had
more general safety legislation designed to “sweep-up” any
products not otherwise caught by European safety legislation.
The current legislation is the General Product Safety Directive,
which in the UK is implemented by the General Product Safety
Regulations 2005 – the GPSR.
Other directives of the EU regulate specific products. The
General Product Safety legislation is different in that applies
to all products unless “there are no [other] specific provisions
governing the safety of the product” in European law.
The European Union Tobacco Products Directive 2014, enacted
in the UK by the Tobacco and Related Products Regulations 2016
applies only to products which contain tobacco or nicotine no
matter what the concentration of the tobacco or nicotine.
The safety of a product which contains no tobacco or nicotine
is therefore not governed by that legislation but by the GPSR. A
short-fill is designed to be vaped in an e-cigarette even though
it contains no nicotine and since it is not caught by the TPD, its
advertisement and sale will be governed by the GPSR.
44 | VMC
SAFETY UNDER THE GPSR
Under the regulation, a “safe product” has a complex definition.
It is a product “which, under normal or reasonably foreseeable
conditions of use … does not present any risk or only the
minimum risks compatible with the product’s use, considered to
be acceptable and consistent with a high level of protection for
the safety and health of persons”.
In determining that test the characteristics, presentation, labelling
and any warnings or instructions on the product are all relevant.
A further relevant factor is “the effect of the product on other
products, where it is reasonably foreseeable that it will be used
with other products”.
Where there is a European or national law or a standard
governing the product, it can be presumed to be “safe”. If there
are none, the safety should be determined having regard to, for
example: the product safety codes of good practice in the
sector concerned; the state of the art and technology; and
reasonable consumer expectations concerning safety.