Are you thinking about having your product meet voluntary product safety standards? Some might consider it to be costly and time-consuming. However, there are compelling reasons to do so, not to mention that it may help you avoid civil liability in some jurisdictions.
In this article, we present common questions associated with voluntary product safety standards and present the business case for adopting such voluntary standards.
What are voluntary product standards?
A standard can be said to be “voluntary” if the importer or manufacturer of the product is not legally obliged to follow a particular standard. With voluntary standards, it is up to you whether you want to pick any one standard published by standardization organizations.
Although developed by private standardization organizations, most jurisdictions adopt various standards and give them legal effect. For instance, a legal instrument (e.g. regulation, directive, act) regulating consumer products would typically comment on the duty or responsibility of a business operator and would refer to voluntary standards that if met would satisfy the obligation.
What are mandatory product standards?
A standard is “mandatory” in the sense that business operators are legally obligated to meet such cited standards in certain legislations. Failure to follow such cited standards, typically results in detrimental consequences, like product recalls, civil or criminal penalties, and prohibitions from placing the product on the market.
Most standards on their own are voluntary in nature. It is when legislations cite such standards and treat them as instruments that must be followed that they become “mandatory”. In the United States, for instance, the Consumer Product Safety Improved Act (CPSIA) makes certain ASTM standards ‘mandatory’ that are otherwise voluntary in nature.
The legislation may refer to a particular version of the standard or alter the requirements of the referenced standard.
The following are typically voluntary standards unless given special treatment by an applicable legislation. For instance, the CPSIA incorporates standards by reference into US regulations.
ASTM International Standards (US)
The American Society for Testing and Materials International (ASTM International) develops standards for various industries concerned with consumer products, metals, construction, and more.
The following are some published standards from ASTM International:
a. ASTM F963 – Standard Consumer Safety Specification For Toy Safety
b. ASTM F2923 – Standard Specification for Consumer Product Safety for Children’s Jewelry
c. ASTM E1333 – Standard Test Method for Determining Formaldehyde Concentrations in Air and Emission Rates from Wood Products Using a Large Air Chamber
ASTM standards can also be treated as mandatory standards where they are incorporated by reference in legislation. For instance, this is the case of ASTM F963, which is incorporated by reference under CPSIA.
ANSI Standards (US)
The American National Standards Institute (ANSI) does not develop standards. Instead, it coordinates organizations that develop standards and manages the voluntary standards system in the US. Standard developers who follow ANSI rules and procedures gain ANSI approval and their final products are seen as American National Standards.
Here are some examples:
a. ANSI A13.1 – Scheme for the Identification of Piping Systems
b. ANSI/AWC PWF – Permanent Wood Foundation Design Specification
c. ANSI/AITC A190.1-1992 – For wood products – Structural Glued Laminated Timber
Such standards are voluntary in nature unless incorporated by reference in US legislation (like in 29 CFR Part 1910 – Occupational Safety and Health Standards).
UL Standards (US)
Underwriters’ Laboratories (UL) provides product testing services, certifications, marks, and standards that are widely recognized worldwide. Such standards are voluntary in nature unless incorporated by reference in US legislation (like in 29 CFR Part 1910). Additionally, online retailers, like Amazon, may require business operators to comply with UL standards for certain products.
The following are standards published by UL:
a. UL 62368-1 – Audio/Video, Information, and Communication Technology Equipment – Part 1: Safety Requirements
b. UL 1694 – Standard for Tests for Flammability of Small Polymeric Component Materials
c. UL 2596 – Test Method for Thermal and Mechanical Performance of Battery Enclosure Materials
EN Standards (EU)
These are European standards drafted and maintained by European standardization organizations:
a. European Committee for Standardisation (CEN)
b. European Committee for Electrotechnical Standardisation (CENELEC)
c. European Telecommunications Standards Institute (ETSI)
These standards are voluntary guidelines that provide product technical specifications for various products. Additionally, they can be harmonised under directives and regulations, and compliance with such standards affords the producer a presumption of conformity with the corresponding essential requirements of the directives.
As such, compliance with EN standards is often de facto mandatory in the EU.
Some examples of EN standards are provided below:
a. EN 71-1 – Safety of toys – Part 1: Mechanical and physical properties
b. EN 336 – Structural timber – Sizes, permitted deviations
c. EN 631 – Containers for foodstuffs
d. EN 1972 – Diving equipment – Snorkels – Requirements and test methods
ISO Standards (International)
The International Organization for Standardization (ISO) develops voluntary standards and is made up of national standards organizations from multiple member countries. The following are some of their published standards:
a. ISO/DIS 20187-2(en) – Inflatable play equipment – Part 2: Additional safety requirements for inflatable bouncing pillows intended for permanent installation
b. ISO/DIS 2113(en) – Reinforcement fibres – Woven fabrics – Requirements and specifications
c. ISO/DIS 9098-2(en) – Bunk beds for domestic use – Safety requirements and tests – Part 2: Test methods
IEC Standards (International)
The International Electrotechnical Commission (IEC) develops voluntary international standards relating to electrotechnologies through global consensus. It also manages global conformity assessment systems to certify products and their conformity with international standards.
The following are some standards published by the IEC:
a. IEC 60728-11 ED5 – Cable networks for television signals, sound signals, and interactive services – Part 11: Safety
b. IEC 61547 – Equipment for general lighting purposes – EMC immunity requirements
c. IEC 60884-1 ED4 – Plugs and socket-outlets for household and similar purposes – Part 1: General requirements
d. IEC 63399 ED1 – Household and similar use electrical rice cookers – Methods for measuring the performance
Why are some standards voluntary while others are mandatory?
It essentially comes down to the legislative treatment given to the standard. Legislations can compel business operators to strictly follow certain referenced standards, which in turn become mandatory product standards.
Sometimes a voluntary standard can be essentially treated as a “mandatory” standard, especially when it is incorporated by reference into the legislation. Thus, observing the legislative’s language used and interpreting the legislative intent is important in determining whether a standard ‘must’ or ‘shall’ be followed (i.e. is mandatory).
Aside from product regulations that determine whether products can be placed in the market, large online retailers representing sizeable markets may require that certain voluntary standards be adhered to in order to use their platform. In this manner, a standard can also be perceived as being ‘mandatory’.
What are some benefits of ensuring compliance with voluntary safety standards?
From a regulatory standpoint, complying with voluntary standards may aid in demonstrating compliance with certain applicable regulations.
Additionally, following voluntary standards might help with:
a. Build consumer confidence
b. Enables importers and manufacturers to gain access to markets (including through retailers like Amazon)
c. Improves interoperability between products or services
d. Provides a competitive advantage
e. Provides protection from product liability claims
Additionally, compliance with voluntary product standards is often necessary in case no standards exist for a certain product. Keep in mind that a product can still be recalled even if no standards exist for the product. Certain elements from existing product standards can sometimes be used to enhance product safety, which is both in your interest – and that of your customers.
Are harmonised standards voluntary in the EU?
Importers and manufacturers can choose to follow harmonised standards to demonstrate that their products follow the applicable EU legislation. In this sense, these standards are voluntary in nature as there might be other technical solutions that you can adopt to satisfy the essential safety requirements outlined in EU product directives and regulations.
However, the consequence of following other technical solutions (i.e., non-harmonised standards) is that the product does not automatically have a “presumption of conformity” with the applicable EU legislation.
Without a presumption of conformity, you would have to show compliance through other means. For instance, the services of a Notified Body may be used to show conformance. In practice, this can mean that you have to actually create your own standard – which in most cases is far more complex than applying a pre-existing harmonised standard.
Can my compliance with voluntary safety standards be used as a defense against product liability claims?
Product liability claims refer to the claims that can be made by consumers against business operators (e.g. importers and manufacturers) for defective products. Such defective products may cause harm and injury, and different jurisdictions provide different avenues for consumers to seek redress.
Failure to observe and correctly apply product safety regulations may result in troubles with the regulatory enforcement agency and product liability claims leveled against the business operator.
The issue arises when pondering the legal significance of following voluntary safety standards when faced with product liability claims. The short answer to the above question is that it helps, but it helps in different ways depending on the particular jurisdiction in which you are facing such claims.
To understand why this is the case, it is important to first identify the source of law(s) behind the product liability claim and the legal value of adhering to mandatory and voluntary safety standards We explain this in detail in the subsequent subsections.
Sources of law
Different jurisdictions will have different sources of law relating to product liability. Some laws are codified and can be easily found, like Directive 85/374/EEC on liability for defective products (Product Liability Directive). This directive covers most products in the European Economic Area and permits consumers to seek financial redress for physical damages to consumers or their property caused by defective products.
In some jurisdictions, product liability laws may come from court decisions. This is the case in common law jurisdictions like the US, the UK, Hong Kong, and other jurisdictions. For instance, in the US, there are generally three kinds of defects recognized and developed by courts:
a. Manufacturing defects – these are defects that are a result of a departure from the manufacturer’s intended design for the product, for example when a product does not comply with its manufacturer’s design specifications
b. Design defects – Such products are designed in a manner that carries a foreseeable risk of harm to the user, and that such risk could be mitigated or avoided by using a reasonable alternative design
c. Warnings and instructions – Such products are alleged to have inadequate warnings and instructions which could lead to foreseeable risks of harm
These theories of liabilities are developed from case to case, and typically require legal experts to extract legal principles.
Defending against product liability claims
Complying with all the applicable mandatory standards helps in avoiding product liability, generally. For instance, in the EU, the Product Liability Directive allows producers to avoid liability by proving that the product defect was a result of complying with the applicable mandatory regulations.
However, the problem is that in certain jurisdictions, like the US, compliance with such mandatory standards does not serve as an absolute defense against certain claims like those based on design defects (see point b. above).
In such cases, compliance with mandatory standards may be seen as fulfilling the minimum requirements for product safety. Plaintiffs in design defect cases can argue that a reasonable alternative design could have been used that would have resulted in a safer product.
The product risk assessments carried out by the producers can be used to argue that the product was reasonably safe. The adoption of voluntary standards could help in this regard in that the producer can make the argument that they complied with the state of the art. However, sometimes exceeding existing voluntary standards may even be necessary to ensure a reasonably safe product.
Are there any advantages to exceeding voluntary safety standards?
As mentioned in the previous section, exceeding voluntary safety standards may just be necessary when importing or manufacturing in certain jurisdictions. However, in doing so it provides a competitive advantage and reaps the previously-mentioned benefits explained above. The Consumer Protection Safety Commission’s published ‘Best Practices’ article is useful in this regard.