1. Before the Consumer Protection Act 1961 gave the Home Secretary the power to make safety regulations, primary legislation was necessary to deal with each area. Statutes included the Fabrics (Misdescription) Act 1913 and the unusually titled Rag Flock and Other Filling Materials Act 1951.

2. Previous legislation included the Consumer Protection Act 1961, the Consumer Safety Act 1978, the Consumer Safety (Amendment) Act 1986, Consumer Protection Act 1987 (which introduced a general safety duty for the first time) and the General Product Safety Regulations 1994.

3. See, eg, Ramsay, I Rationales for Intervention in the Consumer Marketplace (London: Office of Fair Trading, 1984)Google Scholar and ‘Consumer redress mechanisms for poor-quality and defective products’ (1981) 31 Univ of Tor LJ 117, and

4. In the words of Leff, ‘One cannot think of a more expensive and frustrating course than to seek to regulate goods or “contract” quality through repeated lawsuits against inventive “wrongdoers” ’; Leff, A Unconscionability and the crowd: consumers and the common law tradition 1970 University of Pittsburgh L Rev 349 Google Scholar at 356.

5. Although there is debate about whether that regulation goes too far; see, eg, Viscusi, WK Regulating Consumer Product Safety (Washington: American Enterprise Institute, 1984).Google Scholar

6. The Molony Committee observed in 1962 that ‘[a] major cause of consumer weakness in the past has lain in the inadequate enforcement of the many laws in his favour’; Board of Trade Final Report of the Committee on Consumer Protection (the Molony Committee) Cmnd 1781 (1962) para 869.

7. [2002] OJ L11/4.

8. For an examination of the substantive changes introduced by the Regulations, see P Cartwright ‘The General Product Safety Regulations 2005: implementing Directive 2001/95/EC in the UK’ Yearbook of Consumer Law (forthcoming, 2006).

9. Safety notices include requirements to mark, requirements to warn, suspension notices, withdrawal notices and recall notices. They are examples of statutory notices that require the person on whom they are served to act in a particular way. Breach of a notice is a criminal offence.

10. For discussion of the effect of resources on enforcement activity see below.

11. The DTI has noted that they are quite heavily used and argues that they are effective; see DTI Transposing the Revised General Product Safety Directive (London: DTI, 2002) p 25.Google Scholar

12. Consumer Safety: Report by the Secretary of State for Trade and Industry for the period 1 April 1988–31 March 1993 (London: HMSO, 1993).

13. For more detailed discussion of the meanings of these terms see below.

14. Regulation 12(2).

15. Howells, G Consumer Product Safety (Aldershot: Ashgate, 1998) p 269.Google Scholar Action could not be taken until 14 days passed without representations being made. If the trader stated that he wished to make representations, he would have to be given a further 28 days in which to do so.

16. The DTI has explained that ‘[t]he Department is often able to secure the necessary co-operation of suppliers without exercising this power’; Consumer Safety: Report by the Secretary of State for Trade and Industry for the Period 1 April 1998–31 March 2003 HC 411 (London: HMSO, 2003) para 27. This reflects the concept of enforcer as ‘benign big gun’, that is ‘speaking softly but carrying a big stick’; see Ayres, I and Braithwaite, J Responsive Regulation (Oxford: Oxford University Press, 1992) p 19.Google Scholar

17. DTI, above n 11, p 25.

18. The literature on the role of information in consumer protection is voluminous. See, eg, Schwarz and Wilde, above n 3; Reich, R Towards a new consumer protection’ (1979) 128 University of Pennsylvania Law Review 1;CrossRefGoogle Scholar For an important recent contribution, see

19. MJ Trebilcock ‘Rethinking consumer protection policy’ in Rickett, CEF and Telfer, TGW (eds) International Perspectives on Consumers’ Access to Justice (Cambridge: Cambridge University Press, 2003) p 68 CrossRefGoogle Scholar at p 75.

20. Regulation 2(1).

21. Lucas, D Warnings: do they really make a difference?’ (1999) 17(7) Safety and Health Practitioner 18.Google Scholar See also ch 10.

22. Regulation 2. By contrast, the same regulation states that recall means ‘any measure aimed at achieving the return of a dangerous product that has already been supplied or made available to consumers’.

23. This contrasts with the draft Regulations, which stated that where an enforcement authority serves a withdrawal notice it ‘shall also take action to alert consumers to the risks the product presents’.

24. Section 13(1).

25. See Fairgrieve, D and Howells, G General product safety – a revolution through reform?’ (2006) 69(1) MLR 59 CrossRefGoogle Scholar and (forthcoming).

26. [1992] OJ L228/24.

27. This was not a view shared by the Consumers’ Association, who argued that the phrase ‘already on the market’ would include products already sold to and in the possession of consumers, as well as products on the shop shelves awaiting sale; see Association, Consumers’ Improving Recalls of Unsafe Products (London: Consumers Association, 1993) p 12.Google Scholar

28. DTI Modern Markets: Confident Consumers Cm 4410 (1999), p 31.

29. See R v Liverpool City Council, ex p The Baby Products Association [2000] BLGR 171.

30. Regulation 2.

31. In England and Wales, that debt may be recovered by way of complaint, as mentioned in s 58 of the Magistrates’ Courts Act 1980.

32. The Enforcement Concordat is a voluntary code of practice that sets out best practice for enforcement authorities. Its principles of good enforcement are standards (setting clear standards); openness (clear and open provision of information); helpfulness (helping business by advising on and assisting with compliance); complaints about service (having a clear complaints procedure); proportionality (ensuring that enforcement action is proportionate to the risks involved); and consistency (ensuring consistent enforcement practice). Recent case-law has emphasised the importance that the courts will attach to compliance with such concordats. See R v Adaway TLR 22 November 2004, where it was held that the judge should have stayed proceedings when an enforcement authority did not comply with its stated enforcement policy.

33. Some commentators have been heavily critical of such an approach and, in particular, what they see as academic support for compliance strategies. See, for example, Pearce, F and Tombs, S Ideology, hegemony and empiricism: compliance theories of regulation’ (1990) 30 Brit J Criminol 423.CrossRefGoogle Scholar For a reply, see

34. See, eg, AJ Reiss ‘Selecting strategies of social control over organisational life’ in Hawkins, K and Thomas, J (eds) Enforcing Regulation (Boston: Kluwer Nijhoff, 1984) p 23.CrossRefGoogle Scholar

35. This contrasts with a deterrence strategy, the aim of which is ‘to secure conformity with the law by detecting violation, determining who is responsible for the violation, and penalising violations to deter violations in the future, either by those who are punished or by those who might do so were violations not penalised’; ibid, pp 23–24.

36. Bragg, RJ Trade Descriptions (Oxford: Clarendon Press, 1991) p 202.Google Scholar Evidence shows that this strategy is favoured in the context of trade descriptions legislation. See also It may be that a more rigid approach has been taken in the area of product safety, although the Regulations may mean that this is no longer possible; see

37. DTI Guidance for Businesses, Consumers and Enforcement Authorities: Guidance Notes (August 2005) para 7.4.

38. The DTI’s 5-yearly reports reveal this.

39. Black argues that risk is becoming ‘the central organising principle in regulation and public service delivery’; see Black, J The emergence of risk-based regulation in the new public risk management in the United Kingdom 2005 Public Law 512 Google Scholar at 512. See also Hodges, above n 21, ch 18.

40. Hampton, P Reducing Administrative Burdens: Effective Inspection and Enforcement (London: HM Treasury, March 2005)Google Scholar para 9.

41. For an introduction, see Adams, J Risk (London: Routledge, 1995).Google ScholarPubMed For an examination of the relevance of risk to ex ante regulation and ex post compensation, see For discussions of the role of risk in product safety, see and Hodges, above n 21, ch 18.

42. See Hodges, ibid, p 229. The distinction between risk and hazard is not always fully appreciated – a point that was noted by some respondents to the DTI’s consultation. Instructive is the Methodological Framework for Facilitating Consistent Risk Estimation and Evaluation (Annex 1 in The General Product Safety Regulations 2005 Notification Guidance for Producers and Distributors (September 2005)).

43. Above n 39, at 521.

44. Indeed, it is possible to draw a distinction on this basis between risk (where you do not know what will happen but you know the odds) and uncertainty (where you do not know the odds either). This was the approach taken by Knight but, as Adams correctly points out, this is not how the term risk is used in practice, even in the technical literature: Knight, F Risk, Uncertainty, and Profit (Chicago: Houghton Mifflin, 1921)Google Scholar and Adams, above n 41, p 25.

45. Adams, ibid, p 14.

46. See, eg, Asch, above n 41, pp 70–79; Howells, above n 15, pp 21–23.

47. Enforcement Concordat.

48. For an empirical examination of health and safety officials’ approaches to enforcement, see Hawkins, K Law as Last Resort (Oxford: Oxford University Press, 2002).Google Scholar

49. Under the Regulations, a product must present ‘the minimum risks compatible with the product’s use’. Some risk will be inevitable from some products; see reg 2.

50. Regulation 17(2)(e).

51. As Feintuck argues ‘though promising proactive and pre-emptive intervention to prevent potentially irreversible harm, its precise meaning remains somewhat unclear’; Feintuck, M ‘Precautionary maybe but what’s the principle? the precautionary principle, the regulation of risk and the public domain’ (2005) 32(3) Journal of Law and Society 371 CrossRefGoogle Scholar at 371.

52. DTI, above n 11, p 26.

53. DTI, above n 37, para 7.16.

54. DTI, above n 11, p 26.

55. Spencer, JR Handling, theft and the mala fide purchaser 1985 Crim LR 92 Google Scholar at 95–96.

56. It is not clear whether the authority must actually believe the product to be dangerous but it is submitted that they must, in addition to having reasonable grounds for that belief.

57. See further below.

58. Regulation 10(5).

59. These are currently being revised.

60. In practice, there seems little evidence of enforcement authorities showing an over-zealous enthusiasm for formal enforcement action.

61. See Cardwell, above n 36.

62. Conversations and correspondence with senior officials within trading standards suggest to the author that there is widespread misunderstanding of this provision. Some officers think that provided they have reasonable grounds to believe that goods are unsafe, they cannot be required to pay compensation.

63. Michael Howard MP, Report of the Debate of the House of Commons Standing Committee C, 30 April 1986, p 34.

64. Cardwell, K and Kay, P The Consumer Protection Act 1987: liability of the enforcement authorities’ (1988) 6(7) Trading Law 212 Google Scholar at 214.

65. HL Official Reports, vol 485, cols 920–921, 9 March 1987.

66. See Howells, above n 15, pp 274–276.

67. CJ Miller Product Liability and Safety Encyclopedia (London: Butterworths) looseleaf, part IV, p 164.

68. Hawkins, K Environment and Enforcement (Oxford: Clarendon Press, 1984).Google Scholar This can be seen as the authorities’ search for ‘legitimacy’; see

69. Richardson, G Strict liability for regulatory crime: the empirical research 1987 Crim LR 295 Google Scholar at 302.

70. For an examination of regulatory costs and benefits, see Hahn, RW and Hird, J The costs and benefits of regulation: review and synthesis’ (1991) 8 Yale Journal on Regulation 233.Google Scholar

71. A well-known illustration of this is the passing of the Scented Erasers (Safety) Order 1984, SI 1984/83, which followed an investigation by the television programme That’s Life. Ramsay comments that the Order ‘does illustrate how the highly visible and emotive quality of safety issues, often heightened by the media, may press governments to make an immediate response’; Ramsay, I Consumer Protection: Text and Materials (London: Weidenfeld and Nicolson, 1989) p 488.Google Scholar

72. See Schrade-Frechette, K Risk and Rationality (Berkeley: University of California Press, 1991)Google Scholar ch 9.

73. See, eg, Hawkins, above n 68.

74. The extent to which authorities self-insure is not clear. Cardwell suggests that some enforcement authorities in the past have found liability insurance prohibitive; see Cardwell and Kay, above n 64.

75. Lord Cameron of Lochbroom mentioned the unscrupulousness of the trader as one of the factors that an enforcement authority should consider when applying for forfeiture of goods under the Consumer Protection Act 1987: HL Official Reports, vol 483, col 920, 20 January 1987.

76. See Cartwright, P Consumer Protection and the Criminal Law (Cambridge: Cambridge University Press, 2001) pp 224–225.CrossRefGoogle Scholar

77. See, eg, reg 8(1)(a).

78. Cartwright, above n 76, ch 7, and references contained therein.

79. See, in particular, Cartwright, ibid. There were 105 reported prosecutions for breach of the General Product Safety Regulations 1994 between 1 April 1998 and 31 March 2003, 98 of which resulted in conviction: DTI, above n 11.

80. Regulation 5(1) states that ‘no producer shall place a product on the market unless the product is a safe product’. Regulation 5(2) states that ‘No producer shall offer or agree to place a product on the market or expose or possess any product for placing on the market unless the product is a safe product’. Regulation 5(3) goes on to say that ‘[n]o producer or distributor shall offer or agree to supply any product or expose or possess any product for supply unless the product is a safe product’. Regulation 5(4) states that no producer shall supply a product unless the product is a safe product. Regulation 8(1) states that a distributor shall act with due care in order to help ensure compliance with the applicable safety requirements and that in particular, he ‘shall not expose or possess for supply or offer or agree to supply, or supply, a product to any person which he knows or should have presumed, on the basis of the information in his possession and as a professional, is a dangerous product’. This offence carries a penalty on indictment of up to 12 months in prison, a fine of up to £20,000, or both. On summary conviction, the penalties are 3 months in prison, a fine not exceeding the statutory maximum, or both.

81. Those are regs 7(1), 7(3) (by failing to take any of the measures specified in reg 7(4)), 8(1)(b)(i), (ii) or (iii) or 9(1). On summary conviction, the defendant is liable to imprisonment for a term of up to 3 months, a fine of up to level 5 on the standard scale, or both.

82. McGuire v Sittingbourne Co-operative Society (1976) 140 JP 306 at 310.

83. Parry, D Judicial approaches to due diligence 1995 Crim LR 695 Google Scholar.

84. Richardson, above n 69, at 303.

85. Andrews, C The Enforcement of Regulatory Offences (London: Sweet and Maxwell, 1998) p 27.Google Scholar