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Product Recall – Total Recall?

A product recall may be an appropriate action, but is it effective?

On 2 October 2020, the Government published the findings of its research into improving the effectiveness of product recalls, which emphasised the need to provide clear instructions when a communicating a recall. Using a consumer panel, they tested behaviour using product recall messages. With over 45 product recalls in the last month alone, both the Government and manufacturers need to consider how to effectively communicate with consumers in their homes – especially in a COVID-19 world. In this blog, we set out the current regime and how the report offers useful pointers on improving product recall announcements.

Product recall regime in the UK

In the UK, the safety of consumer products is regulated by the General Product Safety Regulations 2005 (SI 2005/1803) (GPSR), which implements the EU General Product Safety Directive (2001/95/EC) (GPSD). There are specific regimes within the GPSR for items such as food, pharmaceuticals, medical devices, toys and vehicles.

UK product safety law, and its strict liability regime for defective products, is generally derived from EU law.

Following Brexit, it is expected that this body of law is likely to remain unchanged - at least in the short term - subject to Government policy changes. This is because the Consumer Protection Act (CPA) 1987 enshrined the substance of the EU Product Liability Directive (85/347/EEC) into domestic law.

A producer, defined in the GPSD to include a manufacturer, importer or someone who applies their own brand to a product, is obliged to monitor the safety of its products after they have been placed on the market. Where a safety issue arises, the GPSR requires that a producer must be prepared to take "appropriate action”.

Appropriate action

Whilst the legislation does not provide any legal criteria as to determine what action is appropriate in any given circumstances, the Office for Product Safety and Standards (OPSS) and British Standards Institution released a Code of Practice (the Code) on consumer product safety related recalls. The Code incorporates recommendations from safety experts commissioned by the Government and was the first ever published, Government-backed Code of Practice for product safety recalls.

Protection for consumers is also reinforced by the Consumers Rights Act 2015 as amended, which enables the Secretary of State, and the OPSS on its behalf, to serve recall notices where it believes it to be necessary. The OPSS first relied on this power in 2019 in relation to Whirlpool Hotpoint washing machines.

Corrective action may include seeking more information and or monitoring developments as a minimum. However, in the most serious of cases, producers will need to recall items from the supply chain and the hands of consumers. It is vital that any affected consumers are quickly informed of such a recall, especially where the hazards posed by the product include a threat to life. The Code places a heavy emphasis on the need for businesses to draw up effective communication plans and keep them under review during the recall process.

The Code offers some further indications about recall announcements, specifying that they should include:

  • clear headings which draw attention to the announcement, containing the phrase “Important Safety Waning” and a description of the corrective action, such as “Product Recall”
  • a clear description of the hazard such as fire, electrocution, asphyxiation
  • a photograph of the product
  • details of when and where the product was available for sale.

Are recalls effective?

The Government Report reviewed research on messaging around product recall, with the view to provide insights on how to increase the effectiveness of a product recall action. Whilst the report advocates the need for further research, its findings indicated that:

  • where a product should not be used by consumers, the recall message “should not include the word ‘voluntary’”, as it suggested there was less risk in continued use of the product
  • “having clear, bullet-pointed instructions on what action the customer needs to take may result in a quicker response” from consumers
  • “letters and television may be a more effective mode of communication compared to newspapers”.

Protecting consumers in the new normal

In 2018, the Office of National Statistics (UK) measured the country’s e-commerce revenue as £688.4 billion, making the UK the most advanced e-commerce market in Europe. In 2020 it is expected that online sales will amount to 26% of total retail sales. The Pandemic exacerbated this trend with consumers spending more time at home and having to purchase a variety of products online to adapt to their modified ways of living and working. Whilst the report did not address the impact this may have on product recall campaigns, producers will need to consider the implications of this.

Advertisements in shops are less likely to be effective, as online sales rise and many shops close subject to restrictions, especially in times of Lockdown. Direct methods of communication, such as letters and emails, are more likely to reach those at risk. We also expect a rise in the use of social media to advertise recall notices.

In the specific context of medical devices and medicines, alerts and recalls published by the UK regulator the Medicines and Healthcare Regulatory Authority (MHRA), are primarily communicated to patients via frontline medics through hospitals and GP practices. Those alerts and recalls are often urgent in nature and can directly affect the health of the patients using that product. The ‘new normal’ has disrupted healthcare provision in the UK meaning that communications between patients and healthcare providers are rendered sporadic and more difficult than ever before. This may impact the speed with which vital product warnings are conveyed to patients. Manufacturers/producers and the MHRA will need to re-double efforts to ensure the rapid and effective communication of Medical Device Alerts and Field Safety Notices by all means to patients across the UK.

Related Lawyers: Samantha Hewitt, Sarah Moore
Related Practice Areas: Consumer Claims

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