A world of opportunity - Ernst & Young - Switzerland

August 2010

New law on product safety

Klaus Krohmann, Attorney-at-law, Legal Services, klaus.krohmann@ch.ey.com
Markus Meer, Attorney-at-law, Legal Services, markus.meer@ch.ey.com

Print version (PDF 136 kB)

1. Introduction

As of 1^st July 2010, the Product Safety Law (PrSL) replaced the Federal Law on the Safety of Technical Installations and Apparatus (STEG).

The purpose of the PrSL is to ensure the safety of products and to simplify the cross-border trade of goods. In order to secure the latter, the new law was harmonised with the directive of the European Communities on general product safety, which enabled Switzerland to take part in the Europe-wide Rapid Alert System for dangerous non-food consumer products (RAPEX; www.rapex.eu).

According to the principle of the PrSL, no products should be placed on the market which, under normal or reasonably foreseeable use, can endanger the safety and health of the users or third parties to more than a minimal extent. Correspondingly, consumer products that have already been placed on the market and later prove to be dangerous may not remain on the market and with the users.
 

2. Broad field of application

According to Article 2 PrSL, a product is a movable item that is ready for use, even if it forms part of another movable or immovable item.

The PrSL defines placing a product on the market as the handing over of a product, against or without compensation, regardless of whether the product is new, used, restored or significantly changed. What is already a broad field of application is expanded even further, insofar that Article 2, para. 3 PrSL equates to placing a product on the market: a) commercial or professional own use, (b) the use or application of a product to provide a service, (c) keeping a product available for use by third parties and (d) simply offering the product. This means that apart from manufacturer, importers, wholesalers and retailers, compliance is also required from people who rent products out or lend them, lease providers, service providers and donors. Therefore, simply providing equipment in the fitness club, keeping products for sale at a fair and the use of products by the hairdresser already fall under the term placing products on the market.
 

3. Preconditions for placing products on the market

According to Article 5 PrSL, the party placing products on the market must be able to prove that it fulfils the fundamental safety and health requirements defined by the Federal Council under consideration of the corresponding international law (Article 4 PrSL). The legislator puts up the assumption in Article 5, para. 2 PrSL that those requirements are fulfilled if the product is manufactured in accordance with the technical standards designated by the responsible federal department in agreement with the SECO. If the product does not correspond to those technical standards, the party placing it on the market must prove that the product fulfils the fundamental safety and health requirements in another way. If there do not exist relevant standards, the product has to be in line with the state of the art and technology. Anyone who deliberately places a product on the market that does not fulfil the requirements described will be punished with imprisonment of up to one year or a monetary fine. In addition, the manufacturer, and subsidiary the importer, dealer and service provider, must take into consideration the service life, the possible effect on other products, the circumstances of use by consumers or particularly endangered groups (children, disabled and elderly people, etc.) and adapt the labelling, presentation, packaging, instructions for assembly, installation and maintenance, warning and safety notes, instructions for use and details on waste disposal to the specific endangering potential of the product. After the expiry of the transitional period, all products must comply with these preconditions as from 1^st January 2012.
 

4. Obligations after placing a product on the market

For products destined for consumers, Article 8 PrSL imposes the manufacturer and the importer different monitoring obligations for the time after the placing of products on the market. During the indicated or reasonably foreseeable useful life of the product, the manufacturers and importers, as part of their business activity, must pay attention to the dangers which could arise from the normal or reasonably foreseeable use, and they must do whatever is necessary to prevent any possible dangers. They must also be able to trace the product back.

Manufacturers and others who place products on the market are obliged to notify without delay in any case of danger and to provide the responsible authorities with (a) identification of the product, (b) a description of the danger, (c) the distribution chain and (d) the measures already undertaken to prevent the danger.

De facto, manufacturers and others placing products on the market for consumers must therefore have prepared recall campaigns together with the corresponding information policies in advance. For that purpose, products must be identifiable by means of consignment and lot numbers. Responsible people have to be designated and instructed, and there must be a carefully worked out internal and external communication concept. In summary, the entire organisation within a company must be prepared for defects in product safety and be able to react appropriately within a very short period of time to efficiently overcome dangers from product deficiencies and comply in due time with the duties of information to the authorities.