Following on from Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB), the High Court has confirmed the approach to be taken when determining whether a product is defective under the Consumer Protection Act 1987 (“the Act”).

In Gee & Others v DePuy International Limited [2018] EWHC 1208 (QB) (“the Pinnacle Metal Hip Litigation”), Mrs Justice Andrews OBE found that the Defendant’s product was not defective under the Act.  The correct test to be applied was whether the product had an abnormal tendency to result in damage or harm, as compared with appropriate comparator products.

The judgment signals a continuing departure from the approach taken by Mr Justice Burton in A v National Blood Authority [2001] 3 All E.R. 289. Most significantly, it confirms that factors such as avoidability of the defect, cost of precautionary measures and the benefit of the product more generally are factors to be taken into account when assessing whether products meet an objective safety standard.

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Fipronil egg scare: implications for corporates

On 7 August 2017 the Food Standards Agency (FSA) and Food Standards Scotland (FSS) announced that 21,000 eggs imported into the UK from farms in Belgium and the Netherlands were contaminated with the pesticide Fipronil.  The number of contaminated eggs imported into the UK is now estimated at 700,000 and around 70 different products containing eggs potentially contaminated with Fipronil have been recalled. Investigations into the incident in Europe are continuing.

The cost of the recalls has yet to be quantified but the losses (which will include the cost of the product recalls, business interruption losses, damage to reputation, and the settlement of any third party compensation claims) may be significant. Some parties will be looking to recoup their losses from other parties down the supply chain and, where relevant, their insurers.

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European Commission finds that consumer protection legislation is fit for purpose but needs to be applied consistently across EU member states to maximise its effectiveness

The "Fitness Check"

The European Commission has conducted a "Fitness Check" of six key consumer protection and advertising protection directives:

  • The Misleading and Comparative Advertising Directive (2006/114/EC) – which prohibits advertising that misleads traders and regulates comparative advertising.
  • The Unfair Commercial Practices Directive (2005/29/EC) – which prohibits misleading and aggressive commercial practices.
  • The Price Indication Directive (98/6/EC) – which deals with the indication of the selling price and the price per unit of measurement of products offered to consumers.
  • The Unfair Contract Terms Directive (93/13/EEC) – which protects against the use by traders of standard contract terms which create a significant imbalance in the parties' rights and obligations to the detriment of the consumer.
  • The Sales and Guarantees Directive (1999/44/EC) – which sets the rules (and remedies) for when products are in conformity with the contract and deals with commercial guarantees.
  • The Injunctions Directive (2009/22/EC) – which enables injunctions to be obtained if a trader’s practice breaches EU consumer law. 

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Emerging Legal Issues in 3D Printing and Product Liability: The View from the U.S. and the UK

In this article, published in Law Journal Newsletters, we consider who will be held liable if objects created through the use of 3D printing technology, and distributed to consumers and other users, turn out to be defective and unreasonably dangerous from the perspective of United States law as well as the regulatory environment in the United Kingdom.

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Focus on 3D printing – the legal implications of an emerging technology

In this article published in PLC Magazine June 2016 we consider the effectiveness of the current law to deal with the competition that 3D printing presents for traditional manufacturing as well as the opportunities 3D printing provides for rights holders via alternative business models and the product liability challenges involved. Andrew Moir, Anthony Dempster, Rachel Montagnon, David Bennett and Richard Woods discuss the intellectual property and product liability issues involved. 

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Criminal liability for defective products: a refresher

With the coming into force last month of the Consumer Rights Act 2015, there has understandably been a significant focus on the civil remedies available to consumers who purchase defective products (see our recent blog post commenting on the new Act).  However, consumer businesses should also give close attention to the potential for criminal prosecution where products they supply turn out to be not just defective but unsafe.  In this blog post we discuss the various criminal offences which arise in the context of defective products.

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The UK Consumer Rights Act 2015 – key changes that every consumer business should be aware of

The Consumer Rights Act 2015 represents a significant development in the regulation of consumer contracts under UK law. It consolidates and brings consistency to rules that were previously spread across a wide range of different Acts and Regulations. It also introduces new rules, particularly in relation to digital content, remedies available to consumers and unfair contract terms.

The Act comes into force on 1 October 2015 and will apply to contracts entered into after that date. In this article we consider the most important changes to existing consumer law of which consumer businesses need to be aware.

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Consumer Rights Act – contracts for goods, services and digital content

A new Consumer Rights Act, which will streamline key consumer rights covering contracts for goods, services, digital content and the law relating to unfair terms in consumer contracts into one place, has received Royal Assent. The Act is expected to come into force on 1 October 2015.

The Consumer Rights Act replaces eight existing laws, including the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982.

Under the Act consumers will have the right to:

  • get some money back after one failed repair of faulty goods (or one faulty replacement);
  • demand that substandard services are redone or failing that get a price reduction; and
  • get a repair or a replacement of faulty digital content such as film and music downloads, online games and e-books.

The Act introduces a set 30 day time period during which consumers can return faulty goods and get a full refund and clarifies when terms and conditions can be considered unfair.

The Act also makes a number of important changes to the UK competition regime to give private parties, in particular small and medium sized enterprises and consumers, the necessary tools to enforce competition law through private class actions on an “opt out” basis and to provide effective redress for loss caused by anti-competitive behaviour.

Our Competition, Regulation and Trade team has produced an e-bulletin on the new competition law provisions in the Act, which is available here.

The Consumer Rights Act 2015 is available on the website.