FEATURE
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.
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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 prod-
ucts, 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 tec