A Trip Up the Amazon

Across the news media this morning were reports relating to potentially unsafe ‘hoverboards’.  The reports were in response to a press release from Amazon UK which told consumers who had purchased them to dispose of them.  The advice was to take the boards to a council waste collection centre.

The ‘hoverboards’ are potentially dangerous and pose a serious fire risk.  There have been several incidents of these novelty products catching fire during charging and a few weeks ago, 15,000 of them were seized by trading standards officers at UK ports.

Now, I am sure that Amazon’s press release was issued in good faith and was an attempt to remove potentially dangerous products from the market.  Unfortunately, their call directly breached the law in relation to product recalls and did not meet set EU standards in relation to risk assessment and product safety corrective actions.

The European Union organisation for product safety, PROSAFE, publishes a comprehensive guide for producers and distributors of consumer goods relating to their risk assessment and product recall.  Nowhere in that guidance is it advised that trader’s tell consumers to throw potentially dangerous products into the refuse.

The guidance is quite clear, producers of consumer goods must risk assess their products in relation to their safety.  A producer is defined as the person in the EU who makes an item, someone who imports an item into the EU with a view to placing it on the market, or, if the manufacturer is outside the EU, that organisation’s representative within the EU.

Once the risk associated with a product is assessed, four potential corrective actions are advised; to recall the product; to withdraw the product from the market, to issue a warning to consumers; or to mark the product with a warning.  The appropriate action is dependant of the perceived impact of the safety issue.

So, if the product has a relatively minor risk to the consumer, a warning or the addition of a label to the product may suffice.  If the product has a short shelf life, withdrawing it from sale, i.e. taking it off the shelves, may be the most appropriate action.  However, for most consumer goods, the only option may to be to carry out a product recall

In relation to the hover boards, the potential risk of fire is in the most serious risk category.  A full product recall needs to be carried out.  This is more than asking consumers to dispose of products.  Producers have a responsibility to monitor the recall process and to ensure that as many of the potentially dangerous products are returned as is possible.

The producer’s recall duty can only reasonably be achieved by the collection of the products from consumers and recording the number collected. Recall notices need to be issued and advertisements on websites and in newspapers published.

Amazon have comprehensive records of the consumers who have purchased the hover boards.  These consumers have registered with Amazon.  Amazon keep significant records of their purchases. Amazon use analysis of purchases to suggest other similar products these consumers might want to buy.  They are perfectly placed to run a proper recall process.

There is one wrinkle in relation to Amazon and it is the correct definition of their status.  Most of these hover boards have been sold via Amazon Marketplace.  This is part of the Amazon site which allows third parties to trade and sell their goods under the Amazon banner.  When someone purchases goods on Amazon Marketplace they are not contracting with Amazon but with a third-party retailer who may not be located within the EU.

Amazon have recently been found selling illegal offensive weapons on their site.  In these instances, the third-party retailers were outside the EU and were sending the goods from the USA, where the offensive weapons could be purchased legally.

In such cases, what is Amazon’s status?

Amazon could be defined as the producer of the product.  If the product is sent into the EU using Amazon’s distribution network, it could be argued that the company has imported the product into the EU with a view to placing it on the market.  Note that this importer definition does not state that Amazon will benefit from the sale of the consumer goods. Amazon would therefore be responsible for the recall.

As Amazon take responsibility for customer service in relation to the goods on their website, they could be defined as the producer’s representative in the EU and again be responsible for the recall process

If the product is supplied through Amazon’s distribution network, they could be classed as a distributor of the consumer goods.

However, Amazon do not get off the hook if they are simply in the supply chain and classed as a distributor.  The law states that distributors must assist producers and enforcement authorities in the execution of product safety corrective actions.  Amazon’s position in the supply chain means that they are effectively in the position of a producer in respect of product recall.  it would not be unreasonable for Amazon to take responsibility for the work of carrying out the recall.  they would liaise with producers and if necessary pass the cost of carrying out the recall on to the third-party producers.

Having looked at the Amazon terms for ‘market place colleagues’, they need to state clearly that only goods that can be legally sold in the EU can be included on their site and that goods must comply with EU product safety protocols.