GENERAL EDITOR AND INTERNATIONAL CO-ORDINATORS GLOBAL GUIDE 2018 PRODUCT LIABILITY AND SAFETY

2018 REUTERS/TOBY MELVILLE REUTERS/TOBY

GLOBAL GUIDE 2018 PRODUCT LIABILITY AND SAFETY in China, EU, United Arab Emirates, UK (England and Wales) and United States

• China p. 3 • EU p. 14 The law in key jurisdictions worldwide • United Arab Emirates p. 22 • Essential legal questions answered • UK (England and Wales) p. 27 • Analysis of critical legal issues • United States p. 36

FULL GUIDE AVAILABLE AT https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide “...a refreshing approach. The practical articles on how to do particular transactions in various jurisdictions are EXCELLENT FOR ISSUE SPOTTING.”

MAURITS DOLMANS, PARTNER, CLEARY GOTTLIEB STEEN & HAMILTON Country Q&A

is one

). Consumers Consumers ). as having defects.

GLOBAL GUIDE 2018 GLOBAL global.practicallaw.com/w-012-5997 . Article 2, Consumer Protection Law Protection Consumer 2, Article PRODUCT LIABILITYPRODUCT AND SAFETY Article 46) or industrial standard for a specific product cannot cannot a specific product for standard or industrial

that unreasonably endangers personal safety or the personal safety endangers unreasonably that

causes of action? When is a product defective? Does strict liability in certain apply circumstances? Defects. Loss. the loss. and between the defect Causation as the offence need does show fault The claimant to not of strict liability (that is, in relation to the duty to the owed by liability is, in relation of strict (that the damaged party). to tortfeasor liability the question of allocating to “fault” is relevant However, and producers among several example, (for between defendants when For example, the purpose of indemnification. for sellers) and the damage between sellers allocate how to determining that be proven if it can be liable will only the sellers producers, fault. at was their conduct Claimants in product liability litigation are not limited to the direct the direct to limited not liability are litigation Claimants in product a defect due to damage partyAny suffers that users of the product. claim compensation. can in the product • • • is one A defect ( of property safety safety If a national be treated can the product product, that by be met or serviceproduct a that satisfies national a hand, the fact On the other has no product the mean does necessarily not standard or industrial be treated still it can dangerous, is unreasonably If the product defects. as having defects. are principles following the defects, are there whether In determining applied: • • “Consumer”uses and commodities subject who purchases a legal is servicesor receives living needs natural to and is limited daily for ( principle in individuals as dealers, with the product contracts include the party who directly and donees of the product members of the purchasers well as family products. who use the defective is required2. What to establish liability under the most common liability the law in China include: under of product Elements ). Article2 ); Article 122 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 3 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide

Satisfying Safety Standard. Standard. Satisfying Safety Article 140, Crime of Producing or Selling Fake and Inferior and Inferior or Selling Fake of Producing 140, Crime Article Product; Not or Selling Product 146, of Producing Crime Article Seed Law (specifically providing for product liability in the for product Seed providing Law (specifically seeds industry).agricultural Food Safety Law (specifically providing for product liability in for product providing Law (specifically Safety Food industry);the food Product Quality Law; Product Law. Rights Protection Consumer General Principles of the Civil Law ( Principles General Liability Law; Tort liability? ------

- - Laws and regulations for criminal product liability, for example: example: for liability, criminal product for Laws and regulations - (among many others): (among many - - - the for example areas, specific product for Laws and regulations - - General laws and regulations, including the: laws General and regulations, Law stated as at 1 January as at Law stated 2018 refers to products “processed and manufactured for the purposeof the for manufactured and “processed products to refers projects”. including construction not marketing, the contract with business sellers, but include anyone that purchases purchases that but include anyone with business sellers, the contract or uses the goods or services. Quality Law Product 2 of the Article in “products” The definition of and used for the need of consumption for living purposes ( the need for of consumption and used for signed party directly that the contractual to limited not are Consumers The Consumer Rights Protection Law specifically governs the the governs Law specifically RightsProtection The Consumer purchased those as defines law This products products. of consumption Criminal liabilityCriminal • The above provisions are based on, respectively, tort liability in civil law, liability tort in civil law, based on, respectively, are provisions The above damages, and administrative for compensate to such as the obligation agencies. administrative imposed is, penalties by that liability, • Civil liability liability tort (this includes to the obligation such as both agencies: administrative damages imposed by penalties and compensate • In China, the major laws and regulations governing product liability are: product governing laws regulations major and the China, In 1. What are the main areas of law and regulation relating to product relating of law and regulation the main areas are 1. What SOURCES OF LAW OF LAW SOURCES Honghuan Liu and Xi Zhou Honghuan Liu and Partners FenXun in China: overviewin China: Product liability and safety Country Q&A 4 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide • asfollows:and other laws Claims for product are liability limited under the Statute of Limitation • • • exemptions andgroundsStatutory ofdefence include: claim?Isthere atime liability 4. What are thedefences toaproduct Defences claimants. fromindemnity theseller after compensation paidto has been the If theseller thedefects, caused theproducer hasaright to claiman from hasaright to parties claimanindemnity damaged that producer. by theproducer ofthedefective goods,aseller whohascompensated Product and Law Quality Tort Law, Liability if the defect was caused liable for parties, example, producers between andsellers. Underthe willallocatethey any other theircostsbetween directly orindirectly After theliable have paidcompensation parties to theclaimants, Allocation ofliability • that suffersincluding any party damagedueto thedefect. The above are parties directly liable to anyone by harmed theproduct • • • Parties that could beliable for adefective product are: 3. Who is potentially liable for a defective What product? obligations ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 continued tocontinued usetheproduct). ofthedefect knew claimant party orthedamaged butstill the claimant (for example, incorrect useoftheproduct by the case defences can alsousespecific suchas fault orintent by Under the Tort Law, Liability adefendant ina product liability that thedamagedidnot caused exist. At thetimewhenproduct was putonthemarket, thedefect The product was not putonthemarket. - for example: Certain whoare parties liable provisions underspecific oflaw, General of Principles CivilLaw buttoto producers parties, damaged andsellers ( Transporters andwarehouse operators willnot bedirectly liable channels ofcommerce. The seller: sellers thisincludes involved inallthevarious and raw materials. manufacturer ofboth thefinalproducts andthecomponents The producer: thisisgenerally to believed includethe Quality LawQuality have knowndamagewas ( caused products years istwo from thedate theclaimantorshould knew The timelimitfor claimsfor by damagecaused defective - limit in which proceedings canbebrought? limit inwhichproceedings dothey oweandtowhom? or duties Question 20,Question Joint tortious liability Safety Law misleading food ( advertising). damage thelegal ofaconsumer(for rights example, for operatorsbusiness anddistributors ofadvertisements which ). ) are jointly liable withthefood manufacturer ( ). Part IIof 140,Article Food Article 45,Article 1,Product clause ). Article 122, Article see including for underconsumerprotection liability laws. Any restriction madeby suppliersregarding compensation isinvalid, Limiting liability andare there for products liability defective 5. Canasupplierlimitits Excluding/limiting liability • • to comply withthecontractual requirements. quality After with no this complaint,period has lapsed the product is deemed length years oftimeupto after amaximumoftwo receipt oftheproduct. Law period withinwhichacomplaint can belodged ( requirement agreed, can hasbeen fixthe theparties length ofthe Where contractual for liability failure to comply withaquality at least seven years. ofproducts,types specific example,for for flat periods. However, there isaminimumsafe useperiodrequirement for There isnouniversal requirement for minimum warranty orguarantee Minimum warranty periods • • Requirements aboutproduct are quality asfollows: Warranties • • invalid where theproduct ( causes terms ( forliability defective products themselves between through contractual Product suppliers and product sellers can agree to divide/allocate longer( (unless theexpress “safe use”periodindicated by producers is the damagewas putinto the handsoftheearliest consumers period often years after thedefective product that caused In additionto theabove, there isan“absolute” limitation practice. butthisissueisnot cases, yetliability settled legal inChinese Law, thatperiod,should is,thetwo-year apply inproduct However, that itisbelieved theprovisions oftheProduct Quality General Provisions (effective ofCivilLaw 1October 2017). was from extended to three two years by Article 188ofthe The general limitation periodundertheStatute ofLimitation requirements ( complysold withpersonal andproperty safety goods/service andto askwhether the purchasing/using goodsorservices Consumers have theright to enjoyproducts insafety when to 32,Product Law Quality contain any unreasonable dangers(see Products must comply includingthat donot they withquality present. Property damagewhere intention is orseriousnegligence Personal injuries. ). If they did not specify thelength, to beareasonable itisdeemed didnot). Ifthey specify warranty periodfor consumerproducts? or minimum by Is implied there law? quality a mandatory orwarranties Are guarantees asto lawsapply? protection consumer onasupplierdoingthis?Do restrictions statutory Article 40,Article Product Law Quality Article 45,Article Product Law Quality Article 7,Article Consumer Protection Law . ). Article 53, ContractArticle Law ). However, suchterms could be ). Question 2 Question

panel TVs itmust be Article 158,ContractArticle ). ) ( Articles 26 Articles ): Country Q&A Question would not not would

GLOBAL GUIDE 2018 GLOBAL Article108, clause ). High probability is not is not ). High probability ). PRODUCT LIABILITYPRODUCT AND SAFETY ). Article 108, clause 1, Supreme People's Court's judicial Court's People's Article 108, clause 1, Supreme ) once the claimant has discharged its burden of proof proof of its burden has discharged ) once the claimant ). Article 23, Consumer Protection Law Protection Article 23, Consumer been proven to the required standard) if this type of defect will if this type of defect standard) the required to been proven in this kind of damage. result normally dispute is a decorating service, is a decorating dispute the bears the business provider within the defects if the consumer discovered of proof burden the services or accepting the goods of purchasing six months ( other partyto the Once a party wishing its has satisfied burden, their rebuttal for of proof the burden those claims bears rebut of burdens). (shifting show its evidence must is highly of proof A party with the burden ( probable. Law the Civil Procedural of interpretation normal practice but the defined in law or judicial interpretation 75% probable. least be at evidence must is that be good enough must Evidence of parties rebuttals submitting the opposing party judge that persuade the presiding did to ( standard the high probability reach not the Civil of judicial interpretation Court's People's 2, Supreme Law Procedural disparity be great may liability there cases,In product where of evidence and weight between knowledge the technical cases than in other likely between the parties, the court is more the for of proof the standard its lower power to exercise to if normal use of the product example, For claimant. this type cause presume the court might of accident, usually neither has and of damage (where of defects the existence The court decides within seven days whether to accept the filing. The court decides accept to days within seven whether serve the court must If it accepts case, the within process due to the defendant legal documents the filed by sending days five outside resides If the defendant party. third other and any followed. deliveryChina, a specifiedoverseas is procedure well as other as Convention, York NewChina is a member of the these as well as its own legal and follows treaties international court procedure. for regulations and rules parties, the court When service all relevant on has been effected pre- filing evidence, evidence, exchanging for sets a timetable proceedings. and other hearing court formal meetings, hearing damage, and defect, proving for the burden bears The claimant and the damage (but see between the defect causation 27 (seestatutory defences for the burden bears The defendant Question 4 liability (see above). of product the elements establishing or computers, vehicles, motor are in dispute If the products or the service products appliances or durable electrical in other • is as follows: of proof The standard • • • • • • standard? what and to of proof 8. Who has the burden is as follows: of proof The burden • • • . Article If during the

Article 26, impact the final decision.impact

https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 5 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide ). Cases are heard by one judge of a one judge by heard ). Cases are , which includes: Question 6) preliminary support the filing, and certain evidence to materials. procedural statement of civil claims. statement judges? juries Are used in certain circumstances? liability decided disputes a judge or a panel of by generally - - - The claimant files the claim (under the jurisdiction rules referred referred rules (under the jurisdiction the claim files The claimant in to - proceedings, the judge discovers that the facts of the case are of the case the facts that the judge discovers proceedings, the normal procedure, into and so needs be converted to complex a panel of judges. by be heard it to order court can relationships between rights and obligations are clear and clear between are rights and obligations relationships ( or many contentious not disputes between the parties are Law Civil Procedural 157, court branch local the relevant court at “basic level” cases are usually contentious and complex, involving technical technical involving and complex, contentious usually cases are applied. is widely this procedure evidence, therefore clear, facts are the casesfor where is used Simplified procedure Normal procedure generally applies, by which, a panel of judges applies, by generally Normal procedure liability and decide will hear Product the case. three) (normally by the Supreme 'People's Court in 2015', as well as in public in 2015', Court 'People's the Supreme by in the factor Another Court. High People's each issuednotices by in the case element is a foreign there choice of court is whether or Macau). Hong Kong Taiwan, to related whether (including Hierarchical jurisdiction: the level of first instance court which instance of first the level jurisdiction: Hierarchical depends on the disputed liability mainly case a product will hear issued notice out in a public set this are for rules Detailed amount. District jurisdiction: courts in the location where the product was the product where courts jurisdiction: in the location District the service where the tortious or sold, provided, was manufactured resides ( the defendant or where occurred conduct Law) the Civil Procedural of Interpretation Court People's Supreme • Proceedings are conducted as follows: as follows: conducted are Proceedings juror's opinion may not significantly not opinion may juror's proceedings How are started? 7. the same power as a judge. The juror can participate in fact finding, in fact participate can The juror power as a judge. the same but since of law and the decision-making process in the application expertise, the lay legal liability need high level cases usually product There is no jury of the UK or the US, but There with that comparable system Juror” citizen “People's is a (lay) non-judge which a by there system, with case procedure panel in a normal in the hearing participate can • of this case: • Product liability cases can be heard by one judge (simplified procedure) procedure) (simplified judge one by heard be liabilitycan cases Product the complexity depending on or a panel of judges procedure) (normal • • There are no specific courts dealing with product liabilitycases. no specific courts with product dealing are There liability follows: is as litigation of courtsThe jurisdiction in product PRODUCT LIABILITY LITIGATION LIABILITYPRODUCT LITIGATION 6. In which courts product are liability cases product Are brought? If the parties do set up a quality warranty period, the purchaser has thepurchaser the a quality period, up partiesthe If set do warranty within this period. promise its warranted perform to ask the seller to right Country Q&A 6 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide • • • forensic report Expert in acase can bepresented inseveral forms: In civillitigation generally, opinionto expert resolve technical issues opinion evidenceandare there able torely onexpert 10. Are parties • • • • isdealt evidence Witness withasfollows • • • Evidence issubmitted asfollows: 9. andare witnesses Howisevidencegiven inproceedings ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 technical or specialist issues by testing, analysing and investigating technical by orspecialist issues testing, analysing and investigating orbyeither by thecourtoffering aparty scientific conclusionson It isawritten byinstitutes opinionissued specialised appointed expert laws. Chinese allowed under A forensic report forms isoneoftheeight statutory ofevidence penalise that witness. the testimony, butwillnot normally action or take compulsory refusesIf awitness to testify, thecourtusually refuses to admit (suchasathird andfinallyparties party), by thecourt. followed by party, theopposing by thenbequestioned other or shewants to prove, by thenbequestioned his/herownparty, The normalprocedure isfor to give thewitness he theevidence and becross-examined ( orjudgment.decision incourt to testify hasaduty The witness for to file aparty a retrial petition to overturn thefinalor interim wasdecision ground not cross-examined, thiscan beastatutory relied ofevidence If amajorpiece onby thecourtto make its examination by both( parties Evidence must bepresented to incourtandbesubject cross- allowed formats evidence testimonyWitness isoneoftheeight statutory thetiming forevidence, whichisdetermined by thecourt. After cross-exchange, bothcan submitsupplementary parties examination orwitnesses. ofevidence cross- by thecourtwhichcan alsoconduct preliminary can benomore thantwice. exchangeThe evidence issupervised exchanged dependsonhowcomplex thecase is,butnormally is application evidence byHowmany times theparties. formal courthearing, owndiscretion eitherat its orthrough The courtcan order pre-hearing exchange evidence before the Procedural Law. the Supreme People's Court JudicialInterpretation oftheCivil 69 to 80oftheCivilProcedural and Law Articles 90to 123of requirements are ofsubmissionevidence governed by Articles Article 63 oftheCivilProcedural Law. Standards andprocedural admissible ofevidence incivillitigation areThe types set outin opinions provided inthereport. whosignthereportexperts, andare accountable for their All appraisal worksmust beconducted andcompleted by subjects/questionsspecific submitted orcourt. by the party special rules or procedures for rulesorprocedures it? special cross-examined?

under Article 63 oftheCivilProcedural Law.

Article 63 oftheCivilProcedural andother Law Article 72,Article CivilProcedural Law Article 68, CivilProcedural 68, Article Law ). ).

• and submittheirtechnical opinions. have investigation officers,whoadviseon technology-related issues Property Courts (located ShanghaiandGuangzhou)each inBeijing, Court investigation officer for technology: thethree Intellectual ownexperts Opinion from thecourt's • • assistants Professional opinionby expert • • • • advice asfollows: Supreme People's Court provide rules ofprocedure for evidence/ expert The CivilProcedure andjudicialinterpretations Law by issued the basis courts at any time on specific issues. These experts do at any issues.basis courts timeonspecific do experts These usually hire to provide experts technical opinionsonanongoing Technical opinionsby courts thecourt'steam ofexternal experts: oftheother party. witnesses expert andcross-examine(including cross-examining the experts), is to state professional opinions,cross-examine forensic reports statements inevidence. The mainfunction assistant ofanexpert Statements by assistants expert are categorised asparties' ( opinion onaforensic report ( can applyA party to thePeople's Court for to anexpert give an court, theforensic report willbeexcluded. interpretations by ( examined theparties must appraisal attend experts courtandbecross-it necessary, orthecourtdeems objections raises court proceedings. Ifaparty The report must bepresented, cross-examined andverified in - Court investigation officer for technology: - - assistants:Expert ------andisgovernedtechnical issues by rules includingonthe: The forensic report isthemost commonmethod for investigating on thefacts 'cannot experts. buttheparties question these accessible to theparties. Their advicemay influencethejudgment not participate intheproceedings andtheiropinionsare not Civil Procedure Law, 2013 Revision ------investigation officeronthegrounds that, among others, heor havemeans theright parties to request disqualification ofan applicable also apply to judges to investigation officers. This proceedings, itusually informs inwriting. theparties The rules where to addaninvestigation acourtdecides officerinto the cannot attend orauditother ofthetrial. parts related to thetechnical intend questionsthey toand explain, assistantsexpert can only participate inthepartoftrial attend thetrial. raised withthem.Ifapproved can by the court, theexperts andproposed to theirexpertise be issues of theexperts, mustparties make arequest to courtinadvance, withdetails cross-examination andcircumstances for re-appraisal. attendanceexperts' incourt; and report;expert procedure andrequirements ofthecontent andformat ofthe specialistchoosing institutions andqualificationsexperts; of onwhetherdecision thereport isnecessary; timeframe andprocess for requesting reports; ). If the experts refuse). Iftheexperts onnotice to by testify the Civil Procedure Law andrelevant judicial see abovesee ). ) oronaspecialist issue Country Q&A see see ). ). ). GLOBAL GUIDE 2018 GLOBAL Civil Procedural Law Civil Procedural Article 309,Law Criminal revised Civil Procedural Law (2012) Law revised Civil Procedural PRODUCT LIABILITYPRODUCT AND SAFETY ). The court can also issue such measures on its own initiative. such measures also issue The court can ). litigation, such as legal fees and experts' and fees legal as such what to costs and litigation, extent? in what circumstances? in what be caused to the parties or judgment will be difficult to enforce to enforce the parties will be difficult be caused to or judgment the litigation after be filed should The application without them. circumstances but in urgent triggered, is formally procedure reliefs Interim is filed. the case before also be submitted it can party. the petitioning a monetary from require guarantee usually of the on an application in advance: the court can, Execution the claimant give immediately to the defendant order claimant, in conduct, certain from and desist or cease money or property, ( circumstances specific urgent If the destruction of evidence including litigation documents of evidence is If the destruction litigation including serious, this are and the circumstances of court orders in breach in criminal liability ( result may final and the court delivers preservation:Property before is a property relief common interim the most judgment, effective on its under which the court can, own preservation order, of one of the parties, or on application 'possessinitiative and from the defendant restrict and property the defendant's control of enforcement the effective ensure to disposing of the property, judgment. a future to the defendant order the court can injunction: Temporary from him or her specific or prohibit conduct, certain perform specific ( conduct certain if additional damage will be granted only can orders The above Allocation of other fees such as expert witness and forensic report fees fees report such as expert witness and forensic fees of other Allocation pays such fees. partyThe losing generally court. the by determined are • 14. Can the successful party its costs associated with the recover liability be paid in all cases cases) (including product must A court fee amount the to proportion in calculated case, the hearing court the to but the claimant the court by to is pre-paid This fee of the claim. paysfinal the it when court will decidethe party which ultimately If each fee. pays party the whole usually The losing is given. judgment parts of the claim, the court will usually party succeeds in different between the parties based much of the claim on how the fee allocate way. in a different fee the also allocate has won, but it can the claimant party in the winning party's costs pay to the losing legal for It is rare but it is verylitigation, common in arbitrations. • on might or later evidence is in danger of being destroyed Where filing case a party ask the court (before can obtain, to become hard evidence preservation ( actions take to or during the proceedings) Question 11 and trial full a before types What 13. available relief are of interim include: and remedies relief Interim • • • ). see above ). https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 7 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide Civil Procedural Law Civil Procedural written judgment of the case. judgment written representative of, an interested party, or there are other are or there party, an interested of, representative of the case. the impartial trial affect which may circumstances in the stated be must officer the investigation The name of she is a party to a case, a close relative of a party of a or a litigation relative she is a party a close a case, to of or failure to preserve evidence (in particular, the product)? to preserveof or failure evidence (in particular, a third party?a third If not, are there other ways to obtain evidence from a party evidence from to obtain ways other there or are If not, - or detaining that person, depending on the seriousness that of the or detaining ( circumstances have been discharged. In practice, some courts applied this have In practice, been discharged. have The liability cases. in product Anti-Evidence-Impediment Rule party third party or any penalise any the litigation court can to imposing fines evidence by important or destroys who forfeits destroyed the evidence (including failure to properly preserve properly to the evidence (including failure destroyed the evidence), the opposing party result incurs a negative is deemed to of proof and the burden its own interest against Anti-evidence impediment rule. If a party with a burden of If a partyAnti-evidence with a burden impediment rule. because the opposing party this burden meet cannot proof have started issuing investigation orders, under which attorneys which attorneys under orders, issuing investigation started have party release to on a third the order partyof that enforce can this does resolve not evidence of the court. However, on behalf the evidence. release to a party refuses where the situation litigation. If the holding party is an opposing party If the holding the litigation,litigation. to ( rule the evidence presumption exercise the court might a party courts by application on local certain years, In recent the evidence holding party might still refuse to provide it. It is rare provide to refuse party still the evidence might holding impose compulsory a court to a party,for against or penalties action in the involved party directly if the party not is a third particularly The court has discretion whether to grant the application. the application. grant to whether The court has discretion the evidence, in practice its collect power to if the court exercises Even Opinions of the court expert database: since they are internal internal Opinions of the court expert since they are database: involved. rules no special procedure are court opinions, there - Liability for evidence destruction applies as follows: evidence applies destruction as follows: Liability for • 12. Is there liability for spoliation of evidence/a remedy for destruction remedy for of evidence/a spoliation liability12. Is there for copies, seals or other actions to preserve to actions copies, or other seals evidence, depending on its and location. format For evidence which may be lost or hard to obtain, a party ask the can obtain, to or hard evidence be lost which may For This includes making an evidencepreservation measure. court for • following restrictions: restrictions: following • • of adducing evidence. the to apply can it evidence, partya When difficulty collecting has in evidence, that the subject to obtain use judicial power to court to depends on the circumstances of the case and the discretion of the judge. the of discretion and the case of the circumstances on the depends means other are parties, the Other than submission of evidence by there There is no discovery system as such, but the “evidence presumption” rule is no discovery presumption” There as such, but the “evidence system do so to evidence requested when release if a party to that means refuses be proven to the facts that presume the court can the opposing party, by applied, and widely is not this rule However exist. evidence do not that by 11. Is pre-trial disclosure/discovery required apply? and which rules 11. Is pre-trial disclosure/discovery • Country Q&A 8 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide ( specific state-supported funding isavailable for publicwelfare litigation There litigation funding system isnostatutory inChina.Inpractice, however, Litigation funding 17. allowed? Isitcommon? Islitigation fundingby third parties Litigation funding • • There ofclassactions inChina: are types two orco-ordinated representative16. Are proceedings classactions, actions/representativeClass proceedings of laworasevere procedural defect intheoriginalprocedure. forged evidence, of new the erroneous evidence, as the discovery application procedure ongrounds based such highercourtsupervisory in adiscretionary The general rule isthat only oneappeal ispermitted. Retrials are only allowed • • • grounds to appeal, including: Parties (includingproduct have inallcases cases) various liability ofappealare available?15. What types ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 see Question 16 Question see apply andbindtheunregistered claims. inthose parties If unregistered file parties additionalclaims, thisjudgment will effective,judgment becomes itbindsallregistered claimants. will participate inthe litigation ontheirbehalf. Once the can nominate to betheirrepresentatives, co-claimants who register inwiththecourt. asclaimants The registered claimants andclaims,notifiespotentialthe case merits claimants case. liability anannouncement, explains The courtpublishes there are anumberofinjured includinginaproduct claimants, A classaction/representative litigation can bebrought when eventually accepted thefilingandcontinued to hear the case. and require to compensate that party andapologise. The court thatinfringing hadincurred ofaparty product activity liability the state prosecutor filed publicwelfare litigation to stop the can apply to product claims.For example liability inonecase, showingthathave publicwelfare somecases been litigation private interest protection litigation obtain compensation. There consumer can rely onthisexisting judgment to file his/herown issues. After effective, judgment becomes any injured individual the courtdetermines thekey facts related to product quality created, compensate orapologise. Duringtheprocedure, the infringement, remove thedefect, eliminate thedangers defendant and,for to accept liability example, cease anddesist or thestate procuratorate. theclaimant asksthe cases, Inthese by whoare claimants public welfare institutions, organisations People's Court judicialinterpretation inits of2016) isbrought Public welfare litigation (formally established by the Supreme Error intheapplication oflaws. Procedural error. Fault offirst instance courtin fact-finding. Are contingency fee ornowinfeeAre contingency arrangements allowed? Are they commonly used? available? proceedings Ifso,what are thebasicrequirements? ) for whocannot parties afford thecosts ofthislitigation. Remedies • • theattorneybetween andtheclient. Contingency fees are prohibited in: than 30% of the total amount oftheclaim in the retainer agreement attorneysbetween However andclients. thiscan legally benohigher involvingIn civilcases property, fee acontingency can beagreed Contingency fees example city, Beijing Anhui andShanxi. local provinces have started to offer itfor product for cases, liability legal aid is not generally available for product several cases, liability including consultancy, representation andcriminaldefence. Although can get of cases Partiestypes inspecific fees Lawyers' or bydifficulties. business people affected by natural disasters of and other types people withoutsteady citizens incomes, onminimalwelfare benefits, disadvantaged certain andmeets conditions,for example, disabled 14 Question By law, to acourtcan decide exempt, reduce ordelay thecourtfee ( • • • • Remedies include: inaproduct are available18. What party remedies toasuccessful Criminal, administrative andstate compensation cases. employment relationships. Property related arisingundermarriage,family cases and - - fields,and inspecific suchas: Punitive only damages: applicable circumstances underspecific product itself. by legislators, recoverable damage can includethedefective However, underthe Tort Law, Liability according to discussion defective product undertheProduct itself Law. Quality Damages for property loss donot cover to the damages Damages for mental distress ( - - - Damages for suchas: personalinjury, - - - - - liability claim? liability and thedefect ( 'death caused orserious injuries product butstill continued to manufacture orselltheproduct, where amanufacturer orseller ofthedefect knew ina Food Safety Law loss. The minimumamount payable isRMB1,000( thepricepaidorthree often the times pay times anindemnity safety standards oratrader knowingly sellingsuchfood to a victim can require aproducer offood failing to meet food LawLiability victim. ofpersonswhowereliving expenses beingraised by the payment forfuneral aone-off expenses, theaccident, and persons to beraised by thevictim; livingcostsfor indemnity,of living,disability andnecessary assistance fordisability devices living,assistance for costs treatmentmedical nursingfees expenses, andincomelosses; ) ifthecourtinvestigates isfinancially and finds that aparty ); ); Article 22, Article Tort Law Liability pro bono legal aid services, legal aid services, Article 47, Article Tort force majeure Article 148, 148, Article ) see see , Country Q&A ). ). ). GLOBAL GUIDE 2018 GLOBAL ). Article 140, Food Safety Law Article Food Safety 140, , if a defect is caused by seller's seller's is caused by , if a defect Article 2, Agricultural Product Quality Product Agricultural Article2, vice versa vice Article 2, Pharmaceutical Administration Law Administration Article2, Pharmaceutical ); PRODUCT LIABILITYPRODUCT AND SAFETY ) Article 2, Food Safety Law Article2, Food Safety Article 2, Special Equipment Safety Law Safety Article2, Special Equipment Tort Liability Law Tort Safety Law Safety which applies boilers, to Law, Safety Special Equipment pipelines, vessels (including gas cylinders), pressure pressure large-scale machinery, lifting passenger ropeways, elevators, among vehicles, motor devices,amusement and non-road ( others Pharmaceutical Administration Law, which applies the to Law, Administration Pharmaceutical use, supervision trade, production, ofresearch, and management ( pharmaceuticals which applies plants, to Law, Quality Safety Product Agricultural from obtained which are and their products, animals, microbes activities ( agricultural liability with the problematic food producer or trader. producer food liability with the problematic additives and food which applies food, to Law, Safety Food containers, (including packing materials, products food-related and and utensils food for and disinfectants detergents, farm and edible and trade) production food equipment for ( products If the defect of the product is caused by the manufacturer while while the manufacturer is caused by of the product If the defect has the seller victim, the damage and compensated the seller by the manufacturer indemnification seek for to right the legal ( the the defect, for compensated but the manufacturer fault indemnification. seller's seek for to has the right manufacturer liability”).(“ultimate or who designs, produces, of advertisement An agent/publisher a defective/ about advertisement stated publishes falsely any the lawful which causes damage to any rights food problematic liability and several with the of consumers has joint and interests ( or trader producer food defective or an individual who organisation other any A social group, advertisement false any consumers through to food recommends the causes damage to any and the food publicity, false or other and severallawful consumers, has joint of rights and interests • • • PRODUCT SAFETYPRODUCT product safety? for and regulations the main laws are 21. What for Quality out regulations Law set 32 of the Product 26 to Articles safety. product and industry departments also issue national Government standards Standards, Safety Food National the including safety, product to related and the Pharmacopeia of China. Standards Product Organic such as the: on specific products, also regulations are There • Internal indemnityInternal • liability tortious Joint also may sellers and manufacturers rules, Besides indemnification the tort liability intentional and several a joint joint bear if they committed defects. the product causing negligenceor joint for with above liable and severally other parties jointly Specific laws make as follows: and sellers manufacturers liable • • ). Article determined determined Interpretation of the of Interpretation Question 18). Product Quality Law and Quality Law Product ). ). https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 9 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide ). Article 17, Tort Law, see Question 27 Law, Tort Article17, for death compensation: where the same tort (including in tort the same where compensation: death for liability persons, cases) causes of several product the deaths will be compensation of death amount a uniform ( of Law for the Trial of Cases on Compensation for Personal Injury Personal for on Compensation Cases of Trial the for Law of varies widely of regions and the economic status In practice, damages differ. may for the amount therefore the standards to calculate damages for personal injury damages for vary may calculate to the standards the at basis is the standard The calculation victims. different for ( case with the of the court dealing locality Application the Some Issues of concerning Court People's Supreme for awards under Article 47 of Tort Law, the multiple is usually is usually the multiple Law, Tort 47 of Article under awards for (see also three be around to considered received. RMB500 is the minimum amount payable ( payable RMB500 is the minimum amount received. Law Protection 55, Consumer services, consumers can ask for an increase in compensation services, in compensation an increase ask for can consumers the times made by the payment of three their losses for service or the the commodity purchased consumer for where business operators fraudulently provide commodities or provide fraudulently business operators where ersonal injury: in general, these are calculated by actual loss, loss, ersonal injury: actual by calculated these in general, are including where a partially a where including entity a party responsible not is to the proceedings? Are punitive or exemplary damages available and in what or exemplary punitive Are and in what damages available circumstances? - - - - and claim for full liability, but also can sue the manufacturer and sue the manufacturer but also can liability, full and claim for liability. and several joint and claim for together the seller There are two interpretations of this rule: “optional indictment”, indictment”, “optional of this rule: two interpretations are There sue them chooses and cannot the victim one or the other where the which means liability”, and several joint or “unreal together or the seller aggrieved party sue either the manufacturer can request compensation from either the manufacturer or the seller or the seller either the manufacturer from compensation request liability”) (“intermediate of the product ( Liability Law Tort the Where any harm is caused by a defective product, the victim can can the victim product, a defective harm is caused by any Where - - - personal injury: of damages for Standards gained by the tortfeasor through the tortious acts and so on. the tortious through the tortfeasor gained by damages: Punitive loss of obtainable profits. profits. of obtainable loss injury:Psychological of damages the amount is determined of the of fault including the degree of the case, on the facts acts, consequences earnings the tortious caused by tortfeasor, compensation for death, living costs of dependants, and funeral living costs of dependants, and funeral death, for compensation income is used. to related costs, a multiplier is, the that loss, and indirect loss includes direct loss: Property P disability indemnity, for example for items, certain but for - • Joint and several liability between manufacturers and sellers is as is as and sellers liability and several betweenJoint manufacturers follows: • 20. Is liability joint and several/how is liability is apportioned, several/how and liability Is joint 20. • • • • damages based on actual loss as follows: damages based loss on actual • There is no limitation in Chinese law on the total damages a claimant in Chinese law on the total is no limitation There the calculate damages, punitive courts normally Except obtain. can 19. How are damages calculated and are there limitations on them? limitations there are and damages How are calculated 19. Country Q&A 10 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide departments oftheStatedepartments Council. Industrial standards onproduct safety are drafted by therelated andQuarantine. Inspection Supervision, Administration governed by General Administration ofQuality National standards onproduct safety are by issued theStandardization • • administration for products somespecific suchas: There are government specific responsible departments for • • • • General regulators ofproduct safety include: 22. Are there general safety Are there regulators issues? ofproduct ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 Agriculture (No.76 of theGeneral Office of [2008] theState Council of the MainFunctions, Internal andStaffing Bodies of theMinistry the General Office of theState Council onIssuingtheProvisions on regional agriculture administration ( departments of AgriculturePesticides: Ministry ( of the General Office of theState[2013] Council andStaffingBodies of theChinaFoodand Drug Administration (No.24 State Council onIssuingtheProvisions ontheMainFunctions, Internal administration ( departments gov.cn/WS01/CL0001/ Food anddrugs:ChinaFood andDrug Administration ( - - Main functions include to: - - andcommerce administration including: departments, Industry - - Main functions includeto: - - - includethe: departments andadministration State product supervision quality ------outline theirrole andpowers. Briefly specific regulators goods or services? for particular [2008] of theGeneral Office of[2008] theState Council of theState Administration andCommerce for (No.88 Industry Provisions ontheMain Functions, Internal andStaffing Bodies Notice of theGeneral Office of theState Council onIssuingthe ( commodities conduct health quarantine onexit-entry punish illegal related activities to product quality, inspect product andsafety; quality supervise andcommerce administrationregional departments. industry gov.cn/ State Administration andCommerce for ( Industry the General Office of theState Council of andQuarantine Inspection [2008] (No.69 Supervision, Quality Internal andStaffing Bodies of theGeneral Administration of State Council onIssuingtheProvisions ontheMainFunctions, substandard ( commodities punish illegal inproduction activities ofcounterfeit and safety offood incirculation; andthe andadminister ofcommodities quality supervise departments. andadministration regional product supervision quality aqsiq.gov.cn/ andQuarantineInspection for central government ( General Administration Supervision; ofQuality ) for central government; ); ) and regional food and drug supervision and and ) andregional food anddrugsupervision see Notice of the General Office of the Noticesee of theGeneral Office of the see Noticesee of theGeneral Office of the www.moa.gov.cn/ ). ). see Notice see of ). www.sda. ) and ) and www.saic. www. see ). • • Consumer Goods: Under theMeasures for the Administration oftheRecall ofDefective recall. and compulsory to products, specific where product arerecalls into divided voluntary recall ofproducts. However, there are specific regulations relating There are noother general conditionsand standards applicable to such aswarning andrecall inatimely manner( circulation, the manufacturer or seller must take remedial measures Where adefect ofaproduct isfound after theproduct isputinto is required recall when a product rules or regulations specify 23. Do Product recall • • • • • products, manufacturers must: applicable to allproducts, butundertheregulations onspecific As stated in for requirements product advertising 24. Are there mandatory products,specific example,for devices. food, drugsandmedical Relevant government aredepartments responsible for recalls of some products andauto products. responsible for theimplementation ofrecalls for general consumer andadministration are departments State product supervision quality Administration of theRecall of Defective Consumer Good due even ifitrecalls defective its consumergoods( liability. A manufacturer isnot exempt from thecorresponding liability sufficientlyeffectively and the tort and harm has assumes caused fails to recall defective products inatimely manner or recall them products. Underthe Tort Law, Liability themanufacturer orseller who ofrecallThe purpose isto eliminate orreduce thehazard ofdefective such asdefective auto products devices. andmedical There are similar administrative regulations regarding other products, goods, it must notify themanufacturergoods, itmust notify to implement arecall. department that deems there isany defect inany consumer recall: where arelatedCompulsory inspection quality accordance withthelaw. importing defective consumergoods,andimplement arecall in immediately take measures to stop manufacturing, sellingand confirm that there are defects shall inconsumergoods,they information collection, analysis andprocessing system. Ifthey Voluntary recall: manufacturers must establish thedefect easy for thepublicto inform owners. Publish information in awell-known manner whichmakes it Immediately other dealers. notify File theplanwithrelated government departments. Prepare arecall planinaccordance withrelated regulations. Implement recalls. recalls and other corrective actions? Are any criteriaspecified? actions? andother corrective recalls should or howcompanies make product regarding decisions should beconducted? Are there otherrecalls? rulesgoverning recall howaproduct Question 23 Question , there are nogeneral recall regulations Article 46, 46, Article Tort Law Measures forMeasures the s). ). Country Q&A see Question GLOBAL GUIDE 2018 GLOBAL Article 6, Provisions Article6, Provisions ). The aim of this is to: ). ). PRODUCT LIABILITYPRODUCT AND SAFETY ). This reverses the normal burden of proof for the for of proof the normal burden This reverses ). Avoid difficulties in raising evidence by the claimants. raising evidence in difficulties Avoid delays subsequent in proceedings. Avoid and damages claimants will get in a timely that Ensure manner. sufficient and/or keep the authorities updated about the progress of authorities the about the progress updated of keep and/or corrective actions?authorities do In practice, expect periodic reports?update been recent there changes significant any Have or important issues are legal or procedural cases? that any there Are particularattracting jurisdiction? interest in your - - - Article 17, Tort Liability Law Tort Article17, of the Supreme People's Court on Several Issues concerning the Issues on Several concerning Court People's the Supreme of Food and Drug Involving Cases of Trial in the Law of Application Disputes consumers. borne by which is normally defect product Stricter liabilities for dealers in product liability and duty in product care. of dealers liabilitiesStricter for mechanism is which the recall to of products A wider range applicable. liability for system litigation product favourable A more claimants. persons, a of several causes the deaths tort the same Where be determined can compensation of death amount uniform ( - - - for of proof the burden bears or seller manufacturer A food ( quality standards compliance with food Following the promulgation of the Tort Liability Law, the general trend trend the general Liability Law, Tort of the the promulgation Following is: laws and regulations liabilitysafety and product for • • • after especially liabilities dealers, on damage heavier for a trend is There damages punitive of the mechanism ( the establishment damages 18: Punitive points apply: In addition, the following • • 26. Is there a specific26. Is there progressrequirement reports to provide of product reports on periodic update regulation is no general There for regulations in recall provisions usually are there However, recalls. specific products. certain of the Recall Administration the for in the Measures example, For submit recall must Goods, a manufacturer Consumer of Defective quality in accordance inspection department the related to reports of Quality Supervision,Administration of the General with the provisions (AQSIQ). Inspection and Quarantine detailed more are there specific products, for In some regulations of defective recalls such as for reports, periodic update for requirements medical devices. and defective products, auto TRENDS AND REFORM RECENT recent in product trends any there Are liability law? and safety 27. medicine in 2015by the medicine in 2015by ginkgo biloba ginkgo https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 11 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide ). Manufacturers must also set up public consultation up public consultation also set must ). Manufacturers Measures for the Administration of the Recall of Defective Defective of the Recall of Administration the Measures for or safety issues or safety to the regulatory authorities? immediately notify the manufacturer or supplier of defects and or supplier of defects notify the manufacturer immediately and drug supervision food and administration related the to report report it must the user is a medical institution, Where department. department. administrative health the related to the related food and drug supervision and food and administration the related found. are if defects department and use entities enterprises mustMedical device operation Medical device manufacturers must immediately report to to report immediately must Medical device manufacturers and other relevant operators must immediately notify the immediately must operators relevant and other quality inspection the provincial to and report manufacturers known once located, they are the placesdepartments at where in consumer goods. be defects might there that results to the provincial quality inspection the departments at the provincial to results located. are manufacturers places where parts and components suppliers lessees, repairers, Sellers, Manufacturers must report the defect investigation and analysis and analysis investigation the defect report must Manufacturers about the recall. about the recall. Related government departments must also publish information publish information also departments must government Related take corrective action within a prescribed time limit; or where it fails it fails or where time limit; within a prescribed action corrective take time limit, it will be within the prescribed action corrective take to to RMB30,000. finedup If the manufacturer fails to submit a report for the medical device the medical device for submit a report to fails If the manufacturer to and ordered will be warned it reports, related or other event recall • Under the Measures for the Administration of Medical Device Recalls: Administration the for Under the Measures • failed to report and concealed the defects were given heavier penalties, heavier given were the defects and concealed report to failed recalls and implemented the defects which reported enterprises while penalties. lesser given were voluntarily During a special operation on During a special operation and drug supervision food bodiesAdministration, and Drug China Food and gave than 60 manufactures more investigated regions in various that Enterprises than 50 enterprises. more to penalties administrative regarding products related to human health and life safety, they are they are safety, and life human health to related products regarding of the licence. cancellation a fine and to liable Under the Special Rules of the State Council on Strengthening the on Strengthening Council of the State Under the Special Rules Products, Other and Food of Supervision Safety the of Management and report obligation the fulfil do not and sellers manufactures where • Under the Measures for the Administration of the Recall of Defective of Defective of the Recall Administration the for Under the Measures Goods: Consumer • required by a number of specific recall regulations for specific products, specificfor regulations recall specificof number a by required example: for There are no uniform regulations regarding the obligation to report report to the obligation regarding regulations no uniform are There is widely this obligation issues. However, or safety products dangerous 25. Is there a mandatory25. Is there to report obligation products dangerous Detailed recall procedures for specific products are found in the various found in the are specific products for procedures recall Detailed those products. for sets of regulations periodicals, websites, radio, television and other means accessible accessible means and other television websites,radio, periodicals, ( the public to Goods Consumer channels. or other network hotlines, platforms telephone through Well-known publication means (for example) newspapers and newspapers and example) (for means publication Well-known • Country Q&A 12 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide • • • • • • • including: mechanism, the scopeexpanded of recalling products and refined the recall There are also many recall administration measures which have • ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 34400-2017| 1May 2018). Consumer product recall—Guidelines for manufacturers (GB/T and riskcontrol 34402-2017 (GB/T April 2018). (1 Safety ofmotor vehicle for products-Guidelines riskassessment 2016). Railway Equipment Special January Products (1 Measures for the Administration oftheRecall ofDefective 2016). January Administration oftheRecall ofDefective Auto Products (1 Measures for theImplementation oftheRegulation onthe 2017). January Measures for the Administration Recalls Device ofMedical (5 2016). Consumer January Products (1 Announcement on Acceptance ofRecalls ofDefective Imported 2016). January Consumer (1 Goods Measures for the Administration oftheRecall ofDefective of Consumer Rights andInterests burden ofproof for thedefect(s) ( operators arise,business anddisputes bear the or services discover any defects withinsixmonths ofreceiving commodities suchasdecoration andremodelling, ifconsumers and services televisions, refrigerators, airconditionersandwashing machines For durable suchasmotor commodities vehicles, computers, ). Article 23, Law 23, Article ontheProtection • • • • In addition,legal want academics to: to consumers. product liability, in asoutlined Code,of theCivilLaw includingtort liability. The general in tendency effective. The legislature plansto continue to reform other aspects On 1October 2017, theGeneral Provisions became oftheCivilLaw 28. Are there any proposals for reform andwhenare they likely to new legislation.new andotherse-commerce are inthecontext alsobeingdiscussed of ofartificialintelligence,The topics driverless vehicles, cross-border defects. increasingly complex, itistoo difficult for claimants to prove 27 Adjust theburden ofproof rules inproduct (see liability product litigation. liability theuseandapplicationExpand ofmental distress damage in litigation. liability Increase theuseandfunction inproduct ofpunitive damages particularly asregards themeaning of“unreasonable danger”. that thisdual-track standard isambiguousandhard to apply, technology standard” are jurists argue both Some applied. Currently, and“national orindustrial “unreasonable danger” thestandardUnify for determining whether there isadefect. come intoforce? ). Some jurists argue). Some that asmodernproducts become Question 27Question , isto enlarge protection Question Question Country Q&A GLOBAL GUIDE 2018 GLOBAL LLB, Peking University (2002); LLB, Peking LLM China, National Bar since 2003 China, National www.fenxunlaw.com [email protected] + 86 10 5649 6019 + 86 10 6505 9422

Xi Zhou, Partner Partners FenXun T F E W PRODUCT LIABILITYPRODUCT AND SAFETY Dispute Resolution specialising in trade secrets, secrets, specialising in trade Resolution Dispute English Acting as leading trial lawyer for multinationals and large PRC PRC and large multinationals trial lawyer as leading for Acting and litigations commercial companiesstate-owned complex in Languages.arbitrations. Chinese (Mandarin, Shanghainese), Professional qualifications. qualifications. Professional of practice. Areas financial liabilities, equities, projects, contracts construction product bribery anti-commercial and litigation administrative derivatives, investigations. qualifications. Non-professional University (2005) Peking Law, Administrative in and transactions litigation Recent • Arbitrator, China International Arbitrator, LLB, China University of Political LLB, China University of Political https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 13 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide China, National Bar since 1993 China, National + 86 10 5649 6018 www.fenxunlaw.com [email protected] [email protected] + 86 10 6505 9422

W Honghuan Liu, Partner Honghuan Liu, Partner Partners FenXun T F E Product liability litigation and product recall, trade trade recall, liability and product litigation Product Chinese (Mandarin), English crisis management advice. crisis management Handling complicated litigation. Handling complicated in PR aspects and practical of litigation Helping multinationals Assisting in complicated and influential cases and influential in complicated Assisting expert witnesses in civil proceedings, Training Commission (BAC), Shanghai International Economic and Trade Trade and Economic International Shanghai (BAC), Commission (SHIAC) Commission Arbitration Professional associations/memberships. Professional Arbitration Beijing (CIETAC), Commission Arbitration Trade and Economic • • • • Languages. transactions Recent and arbitration. qualifications. Non-professional Science and Law ,1986 investigation, shareholder dispute litigation and arbitration, antitrust antitrust and arbitration, litigation dispute shareholder investigation, and litigation construction and litigation, investigation government litigation credit of letter and of goods sale international arbitration, Areas of practice. Areas and copyright trademark patent, litigation, law and competition secret bank and financial institution litigation, and infringement confirmation government bribery compliance, anti-commercial litigation, and FCPA Professional qualifications. qualifications. Professional Contributor Profiles Contributor Country Q&A 14 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide Law stated as at 1 February 2018 statedLaw asat 1February not conform to thecontract ofsale. orprofession”business willbeliable iftheproduct inquestiondoes who, underacontract, sellsconsumer goodsinthecourseofhistrade, EEC implementing theConsumer Sales andGuarantees Directive ( Consumers intheEUwillalsohave undernational rights laws Westfalen (Case 14/83) Product Directive Liability ( by inlight national ofthespiritrelevant courts directive, here the any legislation suchdomestic must always beinterpreted andapplied effective inthesphere andcan be used ofproduct liability. However, undermine orconflict withthesupremacy ofEUlaw, itwill remain regulated by thedirective. Where such national legislation not does beyond thescopeofdirective, andthat covers areas that are not DirectiveLiability not does aimto exclude national legislation that is GmbH the Court ofJustice oftheEuropean Unionin with theoperation oftheProduct Directive. Liability The judgment by by other ofaction,liability provided causes such isnot inconsistent notit does exclude thescopefor national lawto provide for product DirectiveLiability isnot amaximumharmonisation directive. As such, Unlike many EU-level legislative measures inthisarea, theProduct this EUinitiative. claimsintheEU,liability for themost part,rely ontheprovisions of still ongoing. Nevertheless, it is now generally the case that product The development ofjurisprudenceunderthisimportant measure is all stakeholders. ultimately application in its it relatively has been well accepted by the culmination ofsometen years ofdeliberation anddebate and The introduction ofthisdirective was controversial at thetime.Itwas that implementdomestic laws it. enforceand theirnational courts thedirective inlinewiththerelevant As adirective, implemented ithasbeen by memberstates oftheEU and sets outtheEU-wideno-fault regime liability for defective products. Directive).Liability The Product Directive Liability was adopted in1985 level is Directive 85/374/EEC for on liability defective products (Product The mainlegislative instrument relating to product at anEU liability 1. What are themainareas oflawandregulation relating toproduct SOURCES OFLAW Cooley LLP Rod Freeman, Sarah-Jane andCarol Dobson Roberts in theEU: overview andsafety liability Product ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 ). This provides that a seller that is “any natural or legal person liability? liability? ( Case C-310/13 ) reaffirms previous case lawthat the Product ). Von Colson andKamann vLand Nordrhein- Novo Nordisk Pharma 1999/44/ or can have areduction inpriceofthat product. This rightfor exists brought into conformity (either by repair by orreplacement) theseller Where aproduct not conform, does theconsumercan have that product • • • • Conformity ispresumed where theproduct: • • • Directive circumstances into account, including( the level ofsafety that apersonisentitled taking to expect, allthe is considered defective for not when it does provide purposes these Therefore, is the atconcept the heartof defect. of liability A product 2, Product Directive Liability or into animmovable”, electricity ( includes andthisdefinition as defined “all movableseven ifincorporated into another movable bycaused adefect in their product. aproduct Forpurposes, these is Under theProduct Directive, Liability aproducer isliable for damages prove thedefect, thetwo. thedamageandcausal linkbetween defective products (Product Directive), Liability the injured person must To establish under liability Directive 85/374/EEC for on liability underthemostcommon liability toestablish 2. What isrequired months ofdetectingwithin two it. consumersmusttheir rights, inform sellers ofthelackconformity also provides that memberstates can provide that, to benefit from Guarantees Directive. The Consumer Sales andGuarantees Directive yearsa minimumoftwo under Article 5oftheConsumer Sales and

to use. Is fit for thegeneral that purpose productstype are ofthat put Is fit or for theparticularpurpose; a sample. ofthegoodsthat theseller thequality Possesses hasheld outas Complies given withthedescription by theseller. Time theproduct was putinto circulation. be put. Use to whichitcan reasonably that theproduct beexpected will Presentation oftheproduct. liability apply in certain circumstances? apply incertain liability strict Does defective? Whenisaproduct ofaction? causes ):

). global.practicallaw.com/w-013-0379 Article 6(1), Product Liability 6(1), Article Article Article Country Q&A ). GLOBAL GUIDE 2018 GLOBAL Article15(1)(b), Liability Directive Product PRODUCT LIABILITYPRODUCT AND SAFETY limit in which proceedings can be brought? They did not put the product into circulation. into put the product They did not the that it is probable the circumstances, to having regard That, the time when at exist caused the damage did not that defect into came the defect or that circulation into they put the product being afterwards. or any sale for the product manufacture they did not That or economic purposes, or manufacture for of distribution form their business. in the course of the product distribute compliance with mandatory is due to the defect regulations That public authorities.issued by at the time technical knowledge and of scientific the state That such as to not was circulation into when they put the product risks defence). the discovery (development enable of a defect the that of a component of a manufacturer in the case That in which the design to of the product is attributable defect by given to the instructions or has beenthe component fitted of the product. manufacturer The main characteristics of the goods or services, The main characteristics the extent to the goods or services, the medium and to to appropriate and the name, the geographical such as his trading identity of the trader, number. and his telephone which he is established at address price of the goods or servicesThe total and of taxes; inclusive delivery, payment, for the arrangements applicable, Where deliver to undertakes which the trader the time by performance, the service, perform the goods or to complaint and the trader's handling policy. For the development risks defence, a member state can derogate from from derogate can state member a defence, risks development the For be still can a producer that in its legislation national this and provide technical and of scientific the state that if they prove even can liable the discovery enable such as to not of the the time was at knowledge ( of a defect existence 4. What are the defences to a product the defences are 4. What liability a time claim? Is there on liability 85/374/EEC under Directive be liable will not A producer if they prove can Liability Directive) (Product products defective for of the following: any • • • • • • The producer will be liable if they fail to deliver products that provide provide that products deliver to if they fail will be liable The producer expect, to entitled is reasonably which a person to of safety the levels of This level as a consequence failure. of that and damages result the inherent including factors, on several is dependent required safety use. intended and the product's of the product nature the (1999/44/EC) Directive Guarantees and Sales the Consumer Under the consumer of the non-conforming to partybe the seller will liable of the product. this will be the retailer Usually, product. under Directive additional rights consumers have certain are There be can a consumer Before Rights Directive). (Consumer 2011/83/EU with been provided have they must of sale, a contract bound by legally manner. and comprehensible a clear in information prescribed certain to: limited includes, but is not Such information • • • Defences ) , the products , the products ). ) that the standard of the standard ) that Case C-52/00 [2002] C-52/00 Case ( Boston Scientific Boston Case C-621/15 Case ( ) that for certain products, the safety safety the products, certain for ) that https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 15 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide Commission v France Commission Article3(1), Liability Directive Product Case ECJ 015/4 Case ( ). NW et Al v Sanofi Pasteur Al v Sanofi NW et or duties owe and to whom? do they see Question 1 for the same damage, without prejudice to the provisions of national of national the provisions to damage, without prejudice the same for law concerning the rights of civil liability contributions. of domestic law. liable held are producers two or more Liability where and several is joint to them. It was held in held them. It was to liability liability the no-fault under from a supplier will be free that and supplier, they identify or upstream where the producer regime provisions any through this defence restrict cannot states member that This definition is extended to also include the EU-importer of the the of EU-importer the include also to definition is This extended within disclose, does who a supplier not as well as, potentially, product time, the identity the person who supplied of the product a reasonable of a component part and any person who, by putting his name, trade his name, trade putting person who, by part and any of a component himself presents on the product feature distinguishing mark or other as its producer” ( under Directive 85/374/EEC on liability for defective products (Product (Product products defective on liability for 85/374/EEC under Directive of a is defined as A producer Liability“the manufacturer Directive). the manufacturer or material raw any of producer the finished product, It is the producer who is potentially liable for the defect in a product in a product the defect for liable who is potentially It is the producer ( obligations product? What defective a for liable potentially is Who 3. Under Directive 1999/44/EC on consumer rights (Consumer Sales Sales on consumer rights (Consumer 1999/44/EC Under Directive that be proved if it can is liable the seller Directive), and Guarantees the time at sale for with the contract conform did not the product state can determine the most just standard themselves as long as the as long themselves standard just the most determine can state principles EU-wide the with line in all are standards national various and equivalence. of effectiveness Under Article 4 of the Product Liability Directive, the claimant must must the claimant Liability Directive, 4 of the Product Article Under damage. It was and the link between the causal the defect establish in held member Each level. a national at be determined is to required proof for the purposes of liability under the Product Liability Directive. This Liability the purposes Directive. of liability under the Product for in Europe. consideration further ripe for is an area defence and there is no concept of pre-emption in the EU in this context. in the of pre-emption is no concept and there defence of product the requirements that be the case still it must However, trying when consideration be an important must regulations to safety be must safety as to expectations assess a person's legitimate what is subject to strict requirements under EU safety regulations can be can regulations under EU safety requirements strict is subject to seems It complies it regulations. if those with defective considered be a complete regulatory that clear compliance will rarely relatively can be classified as defective without having to prove the product in the product prove to without having be classifiedcan as defective has such a defect. question actually that a product whether in the EU as to point a controversial It remains In the same matter, the CJEU confirmed that where products belonging the CJEU belonging products confirmed where that matter, In the same series are production part of the same or forming group the same to group that to belonging product any defect, a potential have to found product, the vulnerability of the typicalproduct, user or the abnormal potential In presents. the product damage that for defibrillator. and cardioverter pacemaker a were in question It was held by the Court of Justice of the European Union (CJEU) in of the European of Justice the Court by held It was Scientific Boston expect be considered to to is is entitled the consumer that level of the function the inherent be due to This can high. particularly Country Q&A 16 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide potential exposure. liability part by oftheconsumer, thenegligence thenthiscan mitigate any was in caused If theproducer can showthat thedamageorinjury it willtherefore beineffective before theirnational courts. memberstatesSome have derogated from thisparticulardefence and apply involving incases less complex defects situations. ordamages pharmaceutical products. It remains controversial as to whether itcan this defence willbesought to be deployed in a complex case involving tohave potentially shownawillingness scope. extend its Typically, interpretedbeen narrowly, however, inrecent national courts times Kingdom (Case C-300/95) oftheProduct Directive Liability ( the history The development risksdefence especially hasbeen controversial in ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 of theinformation available andexperience to theCommission. The guideisnot legally binding. However, itrepresents asynthesis Europe. The document issupported by theEuropean Commission. organisation oftheproduct safety enforcement in authorities Description. Action_Guide_Final-published.pdf W Recalls (NovemberProduct &OtherCorrective 2011) tomanage forAction Guide:Guidelines Businesses PROSAFE Safety inEurope Consumer Corrective Product methodology.on riskassessment Description. attachments/1/translations/en/renditions/pdf W methodologyassessment European Commission GuidanceonEUgeneral risk Directive. Description. 9390524&uri=CELEX:32011L0083 W Consumer Directive Rights Safety Directive. Description. 9323994&uri=CELEX:32001L0095 W Safety Directive General Product Directive. Description. 9089467&uri=CELEX:31999L0034 W Directive Liability Product http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=151587 www.prosafe.org/images/Documents/EMARS/Corrective_ http://ec.europa.eu/DocsRoom/documents/17107/ http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=151587 http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=151587 This website has the European Commission guidance This document iswritten by PROSAFE, aprofessional This website hasthefull text oftheConsumer Rights This website hasthefull textoftheGeneral Product This website hasthefull textoftheProduct Liability ONLINE RESOURCES ). Historically, thescopeofdefence has see Commissionsee vUnited 5. Can a supplier limit its liability for defective products and are there andare there for products liability defective 5. Canasupplierlimitits Excluding/limiting liability the date ofdelivery. are to subject national law, butcannot beless years thantwo from apparent within six months of delivery. Time for limits bringing claims ifthelackofconformityconforming becomes at thetimeofdelivery Guarantees Directive), theproduct willbepresumed to have non- been (ConsumerUnder Directive onconsumerrights 1999/33/EC Sales and end user( entered themarketing process inthefinal form itis to beoffered to the the moment at whichtheproduct left themanufacturing process and the product into circulation. Put into circulation isunderstood to mean DirectiveLiability are ten years extinguished after theproducer hasput stop provision that states that any exercisable rights underthe Product damage, thedefect oftheproducer. andtheidentity There isalsoalong- aware, becomes oroughton whichtheparty to have aware, been ofthe Directive.Liability fromThis periodbegins theearlier ofeithertheday A three-year limitation to period applies claims under theProduct See See 7. started? Howare proceedings state down. ruling ishanded until suchatimeastheCJEU ruling onthematter. This stays proceedings intherelevant member treaties orother EUlegislative instruments for preliminary theCJEU's obligates them,to refer any questions regarding theinterpretation ofEU within each memberstate, andwhere that courtisoneoffinaljurisdiction, of the Treaty ontheFunctioning oftheEuropean courts Unionauthorises ofthecommencement ofproduct litigation.aspects liability Article 267 Each memberstate implements theirownrules regarding the procedural the directive istheCourt ofJustice oftheEuropean Union(CJEU). member state. The ultimate arbiter ofquestionsinterpretation of (Product Directive) Liability are brought ofeach inthenational courts Claims underDirective 85/374/EEC for onliability defective products brought? Are product cases liability are product 6. Inwhichcourts LITIGATIONPRODUCT LIABILITY Consumer Sales and Guarantees Directive ( Sellers to cannot consumersunder limittheirliability ofthe Article 7(1) within theirjurisdiction. DirectiveLiability entirely ( liability its inrelation to personalinjury Directive),Liability aproducer isprohibited from limitingorexcluding Under Directive 85/374/EEC for on liability defective products (Product Question 6 Question warranty periodfor consumerproducts? or minimum by Is implied there law? quality a mandatory orwarranties Are guarantees asto lawsapply? protection consumer onasupplierdoingthis?Do restrictions statutory judges? Are juries used in certain circumstances? incertain used Are juries judges? generally by ajudgeorpanelof disputes decided liability see O'Byrnev see Aventis Pasteur MSDand Another (Case C-127/04) . ). Memberstates can enforce stricter requirements see Question 4 Question see Article 12,ProductArticle ). ). Country Q&A GLOBAL GUIDE 2018 GLOBAL http://ec.europa.eu/newsroom/ ), which applied to products that that products ), which applied to ). Case ECJ 2015/4 Case PRODUCT LIABILITYPRODUCT AND SAFETY ( . Are punitive or exemplary damages available and in what or exemplary punitive Are and in what damages available circumstances? Are contingency fee or no win no fee arrangements allowed? arrangements contingencyAre or no win no fee fee liability claim? proceedings available? If so, what are the basic requirements? are If so, what proceedings available? used? commonly they Are Question 18 Boston Scientific Boston 19. How are damages calculated and are there limitations on them? limitations there and are damages How are calculated 19. See Litigation funding Litigation parties third funding by Is litigation Is it common? allowed? 17. level. member state with at is dealt funding of litigation The regulation Remedies to a successful remedies party18. What available are in a product This is an level. a national at be determined to left are Damages consumers outcomes for very to lead as it can point, important different the EU. liability claims across in product In the where individuals vulnerable used by peculiar functions have the remedy that held was it high, is abnormally damage for potential is necessary what liability determine claims is to such product to to caused, defect consequencesdiminish the harmful the relevant that been in have the position they would the consumer to and restore reasonably was that of safety the level to conformed had the product defective the removing surgically of cost the meant that Here, expected. alternative. with a conforming the product and replacing pacemakers 15. What types15. What available? of appeal are rules. procedural national by governed are Rights of appeal proceedingsClass actions/representative class actions, proceedings16. Are representative or co-ordinated spotlight been the has in and EU the in area been has a controversial This The availability of such years. many for Commission of the European jurisdiction. in each rules national mechanismssubject to is procedural recommendation a non-binding made Commission European the 2013, In action collective 2015, 26 July by adopt, to member states for calling EU law grants where in all areas with common features procedures evidence on the for with a call up in 2017 followed This was rights. including gathering of the recommendation, implementation experience practical about stakeholders interested from information initiated actions identifying actions, collective actual with collective quantitative collecting and adopted was recommendation the after ( thoseactions on data qualitative and just/item-detail.cfm?item_id=59539 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 17 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide . . . litigation, such as legal fees such as legal and expertslitigation, costs and to what extent? in what circumstances? in what of or failure to preserve evidence (in particular, the product)? to preserveof or failure evidence (in particular, If not, are there other ways to obtain evidence from a party to obtain evidence from ways other there or are If not, party?a third specialprocedures it? rules or for cross-examined? Question 9 Question 9 Question 9 party. In others, they are not, or are significantly more limited. more significantly or are not, they are In others, party. In some EU countries, significant costs are recoverable by the successful recoverable costs are In some EU countries, significant 14. Can the successful party its costs the associated with recover Questions of interim relief are subject to the procedural rules applicable applicable rules procedural the to subject are relief interim of Questions jurisdiction. in each 13. What types of interim relief are available before a full trial and trial full a before types What 13. available reliefof interim are See 12. Is there liability for spoliation of evidence/a remedy for destruction remedy for of evidence/a spoliation liability12. Is there for See 11. Is pre-trial disclosure/discovery required apply? and which rules 11. Is pre-trial disclosure/discovery See 10. Are parties Are 10. on expert to rely able there opinion evidence and are There is significant variation in how evidence is received and assessedby in how variation evidence is is significant There a significant have This can of the EU. the member states courts across with in the EU. dealt in which cases are on the way impact 9. How is evidence given in proceedings and are witnesses in proceedings How is evidence given witnesses and are 9. The relevant standard of proof is determined at national law level. law level. national at is determined of proof standard The relevant The producer against whom the claim is brought bears the burden burden the bears the claim is brought whom against The producer rely. on which they seek will to of the defences any of establishing The burden of proof in relation to the elements of liability the elements is on the injured to in relation of proof The burden and the causal the damage, the defect prove must person That person. have They do not and the damage. between the defect relationship importer. or producer relevant of the the negligence or fault prove to 8. Who has the burden of proof and to what standard? and to what of proof the burden 8. Who has Country Q&A 18 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide • • • • Other relevant horizontal measures include: equipment for useinexplosive atmospheres. radio equipment, motor vehicles, and medicines medical devices, equipment, personal cosmetics, protective equipment, machinery, and regulations governing thesafety low oftoys, voltage electrical Examples ofvertical sector-specific measures includedirectives • • • General Product Safety Directive that is ( including in the context ofproviding a service, Under the General Product Safety Directive, a product is any product, 2001/95/EC ongeneral product safety (General Product Safety Directive). measures, to willbesubject they horizontal measures underDirective measures. To theextent that consumerproducts are not covered by vertical productSome are categories governed by sector-specific (vertical) complex regime that operates at anumberoflevels. Product safety isextensively governed by EU-level legislation. Itisa 21. What are themainlawsandregulations for safety? product PRODUCT SAFETY or recourse” ( to theprovisions ofnational ofcontribution lawconcerningtherights shallbeliabledamage, they jointly andseverally, withoutprejudice ormore Directive), personsareLiability liable where for “two thesame Under Directive 85/374/EEC for on liability defective products (Product 20. joint Is liability and several/how apportioned, is liability ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 WEEE free of charge. creation ofcollection where schemes consumersreturn their andprovides forelectrical andelectronic the equipment(WEEE) equipment (recast WEEEDirective), whichregulates waste onwasteDirective electrical 2012/19/EU andelectronic before placingtheminto theconsumermarket. and packproducts that contain dangerous substances andmixtures This regulation requires manufacturers to appropriately classify, label incorporates theclassification andlabellingcriteria agreed at theUN. packaging ofsubstances andmixtures (CLP regulation), which ontheclassification, labellingand 1272/2008 Regulation (EC) addresses theproduction anduseofchemical substances intheEU. authorisation andrestriction ofchemicals (REACH), which 1907/2006Regulation (EC) ontheregistration, evaluation, New, orreconditioned. used commercial activity. ormadeavailable,Supplied for free ornot, inthecourseofa consumers willuseit,whether intended for themornot. Intended for consumers,orthat itisreasonably foreseeable that hazardous substances inelectrical andelectronic equipment. RoHS Directive), whichgoverns therestriction onuseofcertain hazardous substances inelectrical andelectronic equipment(recast Directive 2011/65/EU on therestriction oftheusecertain to theproceedings? is not responsible aparty entity including where a partially Article 5,Product DirectiveArticle Liability ): ). Article 1(2), 1(2), Article 23. Do rules or regulations specify when a product recall is required is required recall when a product rules or regulations specify 23. Do Product recall andchemicals. medicines EU-level exist agencies functions that have some for regulatory from consumersorto withdraw itfrom themarket. marketing ofaproduct aseriousrisk,to recall that poses that product that decision requiresformal memberstates temporary to banthe In certain circumstances the European Commission can adopt a management. dealing with compliance and product safety and requires issues, careful createsThis complexity particularchallenges for when companies product categories. Enforcement takes placeat anational level. There isnoEU-level regulator for general product safety ormost 22. Are there general safety Are there regulators issues? ofproduct • • • to dealaction withthevarious may beneeded categoriesofrisk: inEurope, authorities providesmarket guidanceonwhat surveillance byA guidepublished PROSAFE, theprofessional organisation for aslow,assessed highandserious. medium, Under theEuropean methodology, risk assessment the risk can be ( 2010/15/EU that isroutinely adopted for ( thispurpose Commission guidance,whichsetsoutamethodology haspublished a risk assessment should be conducted. However, the European The General Product Safety Directive not does set outprecisely how what to corrective isused assess risk assessment action isnecessary. a product safety issueshould be commensurate to the risk posed. A providing warnings to consumers). The measures taken to deal with suffice (including, example,for withdrawal from thesupply chainor otherconsumers. Inless seriouscases, corrective measures may to deal withrisks,including,asalast resort conducting arecall from Product Safety Directive), producers must take appropriate measures Under Directive 2001/95/EC ongeneral product safety (General rapidly developing area intheEU, asitisinmuchoftheworld. judgement by and, ultimately, companies by the authorities. This is a practice muchofitisvague andleft to theexercise ofappropriate EU lawcontains someprovisions dealing withrecalls, however, in COM(2013)76 related labellingrequirements for textile products. products (Textiles Regulation), whichregulates fibre and names labelling andmarkingofthefibre of composition textile Regulation (EU)1007/2011 ontextile fibre and names related Medium risk: normally risk: Medium requiring someaction. market. Low normally risk: not requiring action for products onthe outline theirrole andpowers. Briefly specific regulators goods or services? for particular recalls and other corrective actions? Are any criteriaspecified? actions? andother corrective recalls should or howcompanies make product regarding decisions ), andtheEUgeneral methodology riskassessment ). see Commissionsee Decision Country Q&A GLOBAL GUIDE 2018 GLOBAL PRODUCT LIABILITYPRODUCT AND SAFETY come into force? enforcement of EU harmonised legislation on products. The draft The draft on products. of EU harmonised legislation enforcement recognition mutual a including new includestext proposals various compliance for responsible a person for a requirement declaration, The proposals provisions. sharing and new information information of suppliers legitimate for field playing level a more secure aim to of this is a significant the cost however, in the EU market, products almost for obligations onerous power and more in enforcement increase sectors. all product products defective on liability for 85/374/EEC 21 of Directive Article to Commission the European requires Liability Directive) (Product every of the directive of the application In years. a report five prepare published their Evaluation Commission the European September 2016, which Liability Directive, the Product for and Fitness Check Roadmap would that Liability Directive Product the of review latest the launched concerned with is particularly The review 2015. to the period 2011 cover and whether technologies of new in light the fitness of the directive such of technologies up with the proliferation keep can the directive smart associated and intelligence artificial things, of internet the as that were the consultation The preliminarydevices. conclusions from for the most for purpose fit remains Liability Directive the Product a good balance between stakeholders. all strike part and continues to thosediscuss preliminary to workshop subsequent a at However, primarily stakeholders, some by raised conclusions, concerns were Liability aspects claimants, that of the Product those representing these concerns were for purpose. Interestingly, fit not are Directive of proof the burden about defect, questions on traditional focused more of new technologies. than on the challenges and access resources to perspective of new regulation and from an enforcement perspective. perspective. enforcement an from and newof regulation perspective in a reduction to led have economicpressures years, recent Over surveillance market authorities countries, many in which for resources of enforcement level on the effect a detrimental had have is seen to comes be to As the issue of lack of resources laws. safety of product it is expected means, of non-compliance risks various that by addressed, impacted also are These trends significantly. increase companies will for between market co-operation of international levels the increasing by surveillance authorities. to likely they and when are reform for proposals any there 28. Are Directive replacing proposed Commission the European In 2013, Safety Product (General safety product general on 2001/95/EC and a new Regulation Safety a new Product with General Directive) Surveillance. on Market Regulation has process the legislative through of this package The progress country the proposed regarding of disagreement due to stumbled be imposed under the proposals. would that origin requirements published the Commission the European On 19 December 2017, one on regulations: made up of two proposed new Goods Package, compliance and covering of goods, and the other recognition mutual Article 5(3), General https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 19 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide ). The European Commission has made available has made available Commission The European ). . cases? Are there any legal or procedural issues that are issues are legal or procedural cases? that any there Are particularattracting jurisdiction? interest in your Have there been recent there significant changes any Have or important corrective actions? do authorities In practice, expect periodic reports?update and/or keep the authorities updated about the progress of the authorities updated about the progress of keep and/or or safety issuesor safety to the regulatory authorities? recalls? Are there other rules governing how a product recall rules governing recalls? other there Are be conducted?should Question 24 Serious risk: normally requiring rapid action. action. rapid requiring Serious risk: normally High risk: normally requiring rapid action. rapid requiring High risk: normally the overall trend appears to be increasing. be increasing. to appears trend the overall the from both area, developing is a rapidly regulation safety Product Overall, there appears to be a general increasing trend in the prevalence in the prevalence trend increasing be a general to appears there Overall, will be There the EU. liability claims and risks across of product country however, of reasons, a variety from country, to variations for RECENT TRENDS AND REFORM RECENT recent in product trends any there Are liability law? and safety 27. See 26. Is there a specific26. Is there progressrequirement reports to provide Product Safety Directive Safety Product in making notifications. assist to Application) (Business an online form and it is recommended with using this form risks associated are There advice. appropriate obtain to requirement, they mustimmediately inform the competent authorities the competent inform they mustimmediately requirement, or have in question are, in which the products of the member states or otherwise ( consumers been, supplied marketed to Product Safety Directive), if a producer or distributor knows or ought or distributor if a producer Directive), Safety Product in their possession and as of information known, on the basis have to poses placed on the market they have that a product that professionals, safety general the with incompatible are that consumer the to risks Under Directive 2001/95/EC on general product safety (General (General safety product on general 2001/95/EC Under Directive 25. Is there a mandatory25. Is there to report obligation products dangerous of the key challenges for companies is to ensure consistency across the across consistency companies ensure is to for challenges of the key if supported management, careful This requires jurisdictions. affected necessarythe across expertsby experienced regulators managing in jurisdictions. various Responsibility for supervising the conduct of product recalls falls to to supervising falls recalls for Responsibility of product the conduct One changing area. rapidly This is a authoritiescountry. national each in There are no mandatory advertising requirements or other specific specific mandatory no or other are requirements There advertising an EU level. at recalls product conducting for requirements 24. Are there mandatory there Are 24. advertising product requirementsfor experienced experts, as to whether a particular risk scenario requires experiencedrequires a particular risk scenario experts, whether as to recall. a product undertake to a company • appropriately- guided judgement, by for matter it is a Ultimately, • Country Q&A 20 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide • • • • • Professional associations/memberships: • • • • Recent litigation andtransactions chemicals, andasbestos automotive, electrical sportinggoods,machinery, andelectronics, technologies new cosmetics, includingIoTand Artificial Intelligence, investigations, commercial litigation, consumerproducts, life sciences, Areas ofpractice. Professional qualifications. Contributor Profiles ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 Comparative Law. Product Forum –BritishInstitute Liability ofInternational and Defense Research Institute. International Association ofDefense Counsel. CouncilProduct (US). Liability Advisory Organization (Director). International Consumer Products Health andSafety arisingfrom issues liability technologies. new Retained asadvisorto OECD Consumer Policy Committee on pharmaceutical industry. arising outofthesupply ofcontaminated products inthe used Co-ordinated international defence ofproduct claims liability 60 countries. recalls, involving more than150millionproducts across some Co-ordinated oneofthelargest ever global consumerproduct the Grenfell Tower Fire tragedy intheUK. Representing aCore arisingfrom Participant inaPublic Inquiry Product liability, product safety, product compliance, Cooley (UK) LLP Cooley (UK) Rod Partner Freeman, W E T

www.cooley.com +44 20 75564429 [email protected] England andWales, Solicitor • • • Recent litigation andtransactions electrical andelectronics,machinery, chemicals. technologies (IoT, artificialintelligence), automotive, sportinggoods, commercial litigation, life new devices, medical cosmetics, sciences, Areas ofpractice. Professional qualifications. publication sinceMay 2016. Publications. • • • • • Professional associations/memberships: Languages. • Representing apre-eminent manufacturer inrespect ofcriminal pre-eminent global manufacturers. internationalManages portfolios ofconsumerclaimsagainst the Grenfell Tower Fire tragedy intheUK. Representing aCore arisingfrom Participant inaPublic Inquiry Organisation. International Consumer Products Health andSafety Comparative Law. Product Forum –BritishInstitute Liability ofInternational and Defense Research Institute. Bar Association.International International Association ofDefense Counsel. andtoys. cosmetics in theworld, involving includingthose consumerelectronics, Co-ordinates someofthelargest international product recalls product safety legislation. investigations into alleged product safety underUK issues French, German Monthly product safety article inthe Product liability, product compliance, investigations, W E T LLP Cooley (UK) Sarah-Jane Associate Dobson,

[email protected] www.cooley.com +44 20 75564432 Queensland, Australia,Queensland, Solicitor Product Safety Letter

Country Q&A GLOBAL GUIDE 2018 GLOBAL PRODUCT LIABILITYPRODUCT AND SAFETY British Institute of of British Institute https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 21 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide England and Wales, Solicitor and Wales, England www.cooley.com +44 20 7556 4226+44 20 [email protected]

Carol Roberts, Carol Associate (UK)Cooley LLP T E W Product compliance, product liability, commercial commercial liability, compliance, product Product French Advising a global company on the impact of new European of new on the impact European company a global Advising surveillance market and enforcement. for proposals requirements in respect of a new product roll-out. of a new product in respect requirements companies on multi-jurisdictional a number of global Advising recalls. product Advising a number of leading companies with the launch of a number of leading Advising products. consumer-electronic innovative compliance product on international company a global Advising International and Comparative Law. and Comparative International Languages. associations/memberships. Professional • • • • Areas of practice. Areas and consumer products retail litigation, and transactions litigation Recent Professional qualifications. qualifications. Professional Contributor Profiles Contributor Country Q&A 22 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide Law stated as at 1 February 2018 statedLaw asat 1February breach ofthe Consumer Protection Law. onthegroundscourts oftortious liability, contractual and liability To establish liability, theconsumer(s) must file the case before the underthemostcommon liability toestablish 2. What isrequired • • • The mainareas oflawandregulation relating to product are: liability 1. What are themainareas oflawandregulation relating toproduct SOURCES OFLAW STA Firm Law Zisha RizviandFatima Al Sakkaf Arab Emirates: overview in theUnited andsafety liability Product ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 Protection regulates matters relating to consumercomplaints. Protection Department,andtheSupreme Committee for Consumer is liable to make goodtheharm.Each Emirate hasaConsumer states that aprovider whoprovides adefective product ordamaged Article 282ofFederal No.8of1985onCivil Law Transactions inthischapter.Laws areThe above laws referred two to astheConsumer Protection Federal Number24 Law of2006. of others”. issimilar to that of ofa This definition “consumer” ortheneeds without consideration, hispersonalneeds to satisfy withor natural orjuridical personreceiving any goodsorservice, as Resolutionprices. “any No.12of2007 a defines “consumer” right to select from anumberofalternative goodsat competitive to conduct proper purchaseswith thefacts and the necessary suchastheirrightguidance onconsumers'rights, to beprovided of Ministers' Resolution No.207/16 of2006 provide further Cabinet ofMinisters' Resolution No.12of2007 andtheCabinet for his/herownoranotherprice orotherwise person'sneeds. for a consumer asapersonwhoobtains orservice acommodity of safety ofproducts.a expected andquality This lawdefines lists theobligations suppliersmust comply withandthestandards the management ( ofconsumercomplaints relating to consumerprotection, theregulation ofcompetition and outpolicies local andcarry level ineach emirate whichsupervise Protection setsupConsumer Law Protection ona Departments oflegislationmain piece relating to product liability. The Consumer Protection by asamended Law), Federal No.7of2011, Law isthe Federal No.24 Law of2006 onConsumer Protection (Consumer liability apply in certain circumstances? apply incertain liability strict Does defective? Whenisaproduct ofaction? causes liability? Article 4 Article

). Part Four ). Part Four • • • The following must beestablished to prove intort: liability ( (or manufacturers) are alsoliable for providing defective products and for matters relating to warranties Producers andafter-sales service. A supplier will also be liable for not respecting labelling requirements, Law No24 of 2006 Suppliers must not display oroffer defective goods( or service. manufacturers andanyone involved inthecirculation oftheproduct for defective products. products. UndertheConsumer Protection Law, providers can beliable Manufacturers andsuppliersare both potentially liable for defective 3. Who is potentially liable for What obligationsa product? defective were negligentornot. therefore manufacturers can beliable regardless ofwhether they Product claimsare liability generally and onstrict based liability • • Under Regulation No.12of2007, “defective” as: isdefined There isnooption to ( bringclassactions suits Article 9,FederalArticle Law No24 of 2006 responsibility inthematter.responsibility product andtheindividual'sharm,determining thedefendant's Causation must beestablished thedefect between inthe consumer howto properly usetheproduct). manufacture orwarnings orinstructions (failure to instruct the A breach ofcare ofthat duty dueto defective design, consumer. ofcareA duty from thesupplierormanufacturer to the goods acknowledgement oradvertisement relating to orposted onthe warranty, orspecifications declared by theprovider; orany compliance sufficiently withthe standard specifications, the during, orasaresult ofuse,ordueto non-conformity ornon- Non-suitability, deformation, ordamageemerging before, goods. Any fault processing, inthedesigning, ormanufacturing of or duties dothey oweandtowhom? or duties

) andwillbeliable ifadefective product issold. “ Providers global.practicallaw.com/w-013-1095 ” includelocal distributors, agents, ). see Question 16 Question see Article 6,FederalArticle ). Country Q&A ): GLOBAL GUIDE 2018 GLOBAL Article 112, UAE 2/87 of Civil Code of 2/87 Article112, UAE PRODUCT LIABILITYPRODUCT AND SAFETY special rules or procedures it? for cross-examined? The breach caused harm to the claimant. caused harm to The breach Writing. Testimony. evidence. Circumstantial Eye-witness and·expert evidence. Admissions. Evidence on oath The defendant breached his/her duty his/her of care. breached The defendant 10. Are parties Are 10. on expert to rely able there opinion evidence and are on expert opinion evidence and consumers generally rely can Parties them with their claim. court experts technical assist appoint to • The liability. strict have defendants liability matters, product In relevant. is not intention defendant's proceedings in is evidence given How witnesses and are 9. MunicipalityDubai the and Council QualityDhabi Abu Conformity and The by them checked and have of products samples take the power to have If the product and Metrology. Standardization Authority for the Emirates theircan conduct and the supplier is notified be defective, to is found courts, in UAE own checks. witnesses procedure Hearing a general is not a witness and hear call if they consider to the courts request can although or expert).A an investigator to it necessary is referred if the case (usually The categories and heard a witness have called to party also request can ( evidence are of admissible • • • • • • The consumer does not require the help of a lawyer, nor do they need they do to nor lawyer, a of help the require does consumer not The authority the has Department Protection Consumer The fees. any pay generally Decisions the complaint. are to the decision in relation take to juries. judges and not made by proceedings How are started? 7. Consumer the by received are products defective against Complaints investigate to power the has Department The Department. Protection the Despite case. the have consumers this, to relating matters all Arab courts with the the United of casestheir of filing option directly effect the have should and public are hearings In this case, Emirates. For demands. consumer's the meeting into provider the pressurising of of intellectual the breach involving and matters criminal law matters also may lawyers their or claimant the UAE or Dubai in property, For the police. before filing a complaint by criminal action institute agency, of commercial violation counterfeit, forgery, involving matters the MinistryEconomy. of before be filed can a complaint standard? and to what of proof 8. Who has the burden that: prove and must of proof, has the burden The claimant • ). Article 12, Article 12, Article32 Article 296, Federal Law Article 296, Law Federal ), in cases of criminal liability, where where ), in cases of criminal liability, https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 23 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide ). In the case of repair, a warranty for electronic electronic for a warranty of repair, ). In the case laws do not extensively set out the quality set or lawsextensively do not

). In this case, improper use of the goods is not covered covered use of the goods is not improper ). In this case, A supplier can attempt to limit its liability for defective defective limit its to liability for attempt A supplier can Article 25 judges? juries Are used in certain circumstances? liability decided disputes a judge or a panel of by generally quality implied by law? Is there a mandatory or minimum mandatory a quality law? there implied Is by minimum or consumer products? period for warranty statutory restrictions on a supplier doing this? Do consumer protection laws apply? as to guarantees Are or warranties limit in which proceedingslimit in which can be brought? Question 4. Product Liability cases are brought before the Consumer Protection Protection the Consumer before Liability brought cases are Product up in the been set which have Emirate, Departments of the relevant Ministry Departments Emirate. and the Economic of each of Economy 6. In which courts product are liability cases product Are brought? period in accordance with the nature of the service with the nature period in accordance ( LIABILITYPRODUCT LITIGATION and electric goods cannot be less than three months and for durable durable and for months three than be less goods cannot and electric deliveryof date the repaired the of from months six than less not goods goods ( a specific for Service warranties provide must providers the warranty. by Where goods are recalled, the provider of a defective product must must product of a defective the provider recalled, goods are Where period ( of the warranty regardless the product replace 2007 No. 12 of Resolution and the courts are rather pro-consumer when it comes consumer to pro-consumer rather and the courts are complaints. The UAE expected of a product. standards safety See but this example for on products warnings relevant inserting by products Departments Protection The Consumer it. protect necessarily will not 5. Can a supplier limit its defective liability products for thereare and claims arise irrespective of a contractual agreement between parties. agreement of a contractual claims arise irrespective liability Excluding/limiting A tortious claim cannot be invoked where the parties have a legally partiesa legally the have where be invoked claim cannot tortious A the where are this rule to exceptions However, binding agreement. theseas obligation of breach and/or misrepresentation involves claim The Civil Code creates a distinction between contractual liability between and contractual a distinction creates The Civil Code the from years filing a civil suit is 15 The time limit for liability. tortious claims. of damage in contract date Under the provisions of the Civil Code, tort based liability tort (suchclaims Code, Civil the of provisions the Under liability be heard claims) will be time-barred and will not as product of discovery the date of the damage. from years the lapse of three after There are time limitations in which product liability can proceedings in which product time limitations are There be brought. No. 5 of 1985 on Civil Transactions 1985 on Civil No. 5 of the the standards in cases and where a guilty intention, have providers met. not are Department Protection Consumer Federal In the UAE, a seller can rely on exclusions or limitations of liability of or limitations on exclusions rely can a seller In the UAE, ( void in cases which are of personal harm except Defences to a product defences the are 4. What liability a time claim? Is there Country Q&A 24 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide such as attorney's fees. The appointment must ofan expert be funded can recover party The successful associated costs withthelitigation its recover associatedwiththe costs its party 14. Canthesuccessful have breached been laws bythese asupplier. remedies andpenalties listed intheConsumer Protection when Laws The Consumer Protection Department will immediately apply the of interimarerelief available13. What types before a full trial and or remedies inrelation to this. in a complaint. products itself) anyThe lawnot penalties does specify properly ofadefective evidence product andthe (includingdocuments will evaluate ofthefailure theconsequences orpreserve to preserve 1992 concerning evidence or depreciate value ( its asevidence insertion andother material defects inthedocument whichforfeit Courts must of scratching appraise the consequences off, erasure, for12. Isthere liability spoliation ofevidence/a for remedy destruction to rely wishes aparty documents onare submitted toinwriting. thecourts case ( are useful to theparty’s court to compelhisorheropponent to submituseful that documents go against theircase. However, to thelitigation can aparty request the exchange Parties ofevidence. are not to obliged file that documents There isnodisclosure process andinspection for orpre-trial documents disclosure/discovery11. Ispre-trial andwhichrules apply? required ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 W Dubai Department, Consumer Protection W Sharjah Department, Consumer Protection W AbuDhabi Department, Consumer Protection rights. Description. W UAE ofEconomicDevelopment, Consumer Department rights, www.consumerrights.ae/en/Consumers/Pages/default.aspx sedd.ae/web/cp/home ded.abudhabi.ae/en/Consumer-Protection www.consumerrights.ae/en/Pages/default.aspx extent? andtowhat costs litigation, andexperts such as legal fees in what circumstances? evidence(inparticular,of orfailure topreserve theproduct)? a third party? If not, are or there other ways toobtainevidence from aparty The mainwebsite governing consumerandretailer ONLINE RESOURCES ). to productThis applies liability. The courts Article 18,FederalArticle Law No.10of 1992 Article 22,FederalArticle Law No.10of ). The ). The Litigation funding are minimalanddonot generally exceed AED1,000. Protection Department, whichcharges nofees, orinacourt.Court fees product usually cases bringtheirclaim in thelocal liability Consumer Class actions are not recognised intheUAE. in Individualclaimants orco-ordinated representative16. Are proceedings classactions, actions/representativeClass proceedings can alsobeappealed tointheUAE. the courts ofEconomy. toDepartment's decision theMinistry decision The second The have parties a right to appeal the Consumer Protection ofappealare available?15. What types minimal anddonot exceed AED1,000. the consumerbringingcomplaint, although are they generally judge's discretion. The appointment must ofanexpert befunded by minimal. However, thisdependsonthejudgment andisat the by the consumerbringing the complaint although are they generally There isnolegislative provision covering punitive damages. consumer's contract. Contractual are damages on what based agreed has been to in the the consumerandany consequentiallosses flowing from the tortious act. Damages intort are calculated ontheactual damagesuffered based by 19. calculated Howare damages andare there limitations onthem? there isnolegislative provision for this. Punitive can beawarded damages at thecourt'sdiscretion, although damages. andeconomic damages costs,compensatory as medical The remedies available inaproduct claimare such liability damages inaproduct are available18. What party remedies toasuccessful Remedies funding by third however, parties, thepractice isnot common. this. Intherest oftheUAE, there isnoregulation prohibiting litigation funding by third isallowed parties iftheotherare parties informed of 2017. (whichhave IntheDIFCcourts theirownjurisdiction), litigation Dubai International Financial Center's (DIFC's) Practice Direction 2 of The only regulation governing third-party funding intheUAE isthe 17. allowed? Isitcommon? Islitigation fundingby third parties Are they commonly used? available? proceedings Ifso,what are thebasicrequirements? circumstances? available damages andinwhatAre punitive orexemplary claim? liability fee ornowinfeeAre contingency arrangements allowed? Country Q&A ). Article 14, GLOBAL GUIDE 2018 GLOBAL Consumer Protection Department Protection Consumer

Article 14, Federal Law No. 24 of 2006 of No. 24 Article 14, Law Federal ). The report must include: must The report ). PRODUCT LIABILITYPRODUCT AND SAFETY come into force? Have there been recent there significant changes any Have or important issues are legal or procedural cases? that any there Are particularattracting jurisdiction? interest in your recalls? Are there other rules governing how a product how recall governing rules recalls? other there Are be conducted?should issues or safety to the regulatory authorities? the authorities updated about the progress of correctiveor keep actions?authoritiespractice,do In expect reports? update periodic Quantity sold. Quantity recalled. or whose prices been have replaced Quantity of goods repaired, refunded. such defects. avoid to be adopted to Procedure 28. Are there any proposals for reform and when are they likely to likely they and when are reform for proposals any there 28. Are liability although product to in relation reform for no proposals are There the of consumer rights due to has seen a rise in the regulation the UAE Departments in all of the Emirates. Protection of Consumer establishment A provider must provide the relevant provide must A provider parts and the defective or replaced, of the goods repaired with a report ( process of the recall the start within 30 days from repaired, 2006 of No. 24 Law Federal • • • • TRENDS AND REFORM RECENT recent in product trends any there Are liability law? and safety 27. due in the UAE recalled were vehicles Toyota 40,000 nearly Recently, UAE in the recall This is the largest with airbag inflators. defect a to Takata, the supplier by made were airbags The faulty industry. automotive already UAE Although so far. globally of 16 deaths a total to led and have are on the market sold the products that ensure practices to uses strict regulations. stricter to lead could recall use, this large to safe 24. Are there mandatory there Are 24. advertising product requirementsfor the Ministry of a notice be given require to of Economy Regulations also The supplier must a supplier within 14 days of the recall. by recall in include in advertisements the Ministry to provide with the information the to be provided must A report the recall. newspapers effect to local or replaced on the goods repaired Department Protection Consumer ( within 30 days of the recall a mandatory25. Is there to report obligation products dangerous regulatory the to products dangerous report to is no obligation There Protection the Consumer authorities of consumers. However, on behalf the relevant to products defective report to suppliers Law requires Department. Protection Consumer 26. a specific Is there progressreportsrequirement to provide and/ ) ). seeQuestion1 see Question 1 ) state that providers are are providers that state ) https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 25 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide seeQuestion1 or how companies should make decisions regarding product make or how companies should recalls corrective and other actions? criteria specified? any Are specific regulators for particular for services? or goods regulators specific Briefly and powers. outline their role including where a partially a where including entity a party responsible not is to the proceedings? request recalls in this case). recalls request a remedy select to the consumer has a right of a recall, In the event or a refund. repair such as replacement, made by a consumer. Factors to be considered include the likelihood include the likelihood be considered to Factors a consumer. made by batch a large and will affect in the product is inherent the defect that to the defect posed by of the threat and the impact of the product, the Ministry 17 allows (Article to of Economy safety the consumer's Recall procedures must be followed when a justified warranty claim is warranty a justified when be followed must procedures Recall 23. Do23. specify regulations or rules producta when recall requiredis www.economy.gov.ae/english/Recall/Pages/HealthandSafety.aspx recall Product The Ministry of Economy has set up a consumer protection hotline and hotline protection MinistryThe consumer a up set has Economy of at: products defective for website launched a recall suppliers and safety and quality standards for products for and quality standards suppliers and safety servicesfor particular goods or regulations no specific in are There safety. product to relation to ban goods that are deemed dangerous to the public. to deemed dangerous are ban goods that to for Lawrequirements lists Protection Consumer the of four Part The Consumer Protection Department of each emirate ( emirate of each Department Protection Consumer The These the power departments have consumer safety. for is responsible 22. Are there general regulators of product issues? regulators there Are safety general there 22. Are There is no specific legislation addressing product safety but this area but this area safety product addressing legislation is no specific There Laws ( Protection Consumer the by is covered 21. What are the main laws and regulations for product safety? for the main laws and regulations are 21. What entities that are not a party to the proceedings can be held liable. liable. be held can a party the proceedings not to entities are that SAFETYPRODUCT Consumer Protection Laws ( Protection Consumer includes anyone and the definition of providers products, faulty for liable responsible Partially of the product. in the circulation who is involved A manufacturer and a supplier can be jointly liable for a defective a defective for liable be jointly can a supplier and A manufacturer The UAE. the in located is manufacturer the if especially product, 20. Is liability joint and several/how is liability is apportioned, several/how and liability Is joint 20. Country Q&A 26 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide Professional qualifications. Contributor Profiles ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 W E F T STA Firm Law PartnerZisha Rizvi,

+971 43695126 +971 www.stalawfirm.com [email protected] 43689727+971 LLB (Honours) • • Publications. Portuguese, andSpanish. Languages. Professional qualifications. W E F T STA Firm Law Fatima Al Sakkaf, Associate at at STA amonthly publishes blog entitled Court Uncourt,available en/downloads/lists/publications.html STA’s publications are available at

+971 43695126 +971 [email protected] www.stalawfirm.com 43689727+971 www.stalawfirm.com/en/blogs/lists.html English, Hindi,Malayalam, Tamil, French, Arabic, LLB https://www.stalawfirm.com/ Country Q&A considered the considered GLOBAL GUIDE 2018 GLOBAL global.practicallaw.com/w-013-0564 v Depuyv [2016] 3096 EWHC (QB) PRODUCT LIABILITYPRODUCT AND SAFETY

The product was defective; was The product damage; and suffered The claimant and the product link between a causal the defective was There damage suffered. which, the product The manner in which, and the purpose for has been marketed. use or warnings. for instructions Any be expected be done with or in to reasonably might What the product. to relation is, a product supplied (that was The time when the product subsequently was product because a safer just unsafe is not raised were or because industrydeveloped, standards safety supplied). was the product after Goods must be of satisfactory quality. Goods must purpose is for a particular purpose if that be fit Goods must party. the contracting known to

There is an increasing body of case law in the UK on the principles for for the principles UK on law in the of case body an increasing is There these purposes. example, For for in a product a defect determining Wilkes in court the guidance for and provided in a product of a defect determination as it applies Act Protection section 3 of the Consumer understanding points out of this judgment which came The key liability. product to that: were Consumer ProtectionConsumer Act Protection the Consumer Liability Directive, with the Product Consistent a damage caused by for liability a producer on imposes no-fault Act the on fault prove need does to claimant The not product. defective succeed to prove needs claimant the to all and producer the of part is that: Act Protection in a claim under the Consumer • • • these purposes, section for is defective if a product When determining if defective is product a that states Act Protection the Consumer 3 of to entitled generally persons are what is not of the product the safety factors: the following account into expect, taking • • • • Contract of contract. breach bring a claim for to also be able may A claimant the to relating term contractual of an express either be breach This can Rights the Consumer alternatively, or, product of the defective safety when a business terms sells of implied contractual sets out a list Act a consumer including that: to a product • • https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 27 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide

causes of action? is a product When defective? Does strict liability in certain apply circumstances? liability?

The breach caused the damage in question. The breach the breach. from remote too not The damage was The manufacturer owed them a duty of care. The manufacturer duty. that breached The manufacturer Breach of contract. Breach Act. Protection A claim under the Consumer Common law action for negligence. for law action Common Law stated as at 1 February as at Law stated 2018 • • • • negligence against the manufacturer. To establish the manufacturer's manufacturer's the establish To manufacturer. the against negligence on the elements, four the following prove must the claimant liability, balance of probabilities: Negligence either personal injury loss, or property who has suffered A claimant bring a claim for can product of a defective damage, as a result • • The most common causes of action when bringing a claim relating common causes when bringing a claim relating The most of action liability are: product to • expanded the authorities' powers and manufacturers' duties. expanded the authorities' powers and manufacturers' is required2. What to establish liability under the most common Further consumers' rights in relation to defective products are set out by set are products defective to consumers' rightsFurther in relation The introduction Act). Rights (Consumer 2015 Act Rights the Consumer existing laws, many consolidated and alsoAct Rights of the Consumer are not exclusive of other rights, and persons who suffer damage as a as damage suffer who persons rights,and other of exclusive not are rights under common law also have may products of defective result and contract. of tort principles Directive 85/374/EEC on liability for defective products (Product (Product products defective on liability for 85/374/EEC Directive Liability Directive). Act Protection Consumer the under consumers for out rightsset The The main source of law relating to product liability in England and Wales liability Wales and England in product to relating law of source main The Protection (Consumer 1987 Act Protection 1 of the Consumer is Part EU by introduced liability the strict regime This implements Act). 1. What are the main areas of law and regulation relating to product relating of law and regulation the main areas are 1. What SOURCES OF LAW SOURCES Rod Freeman, Sarah-Jane Dobson and Carol Roberts Dobson and Carol Sarah-Jane Freeman, Rod LLP Cooley in the UK (England and Wales): overview Wales): (England and in the UK Product liability and safety Country Q&A 28 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide • • • • • • • There are various defences to aproduct claimincluding: liability claim?Isthere atime liability 4. What are thedefences toaproduct Defences or allofthem. isjoint andseveral,liability andtheclaimant canto choose sueone Where there are in more entities than one of theabove categories, • • • producer aseither: isdefined of theproduct. inthe ProductAs specified Directive, Liability the Under theConsumer Protection ontheproducer isimposed Act, liability 3. Who is potentially liable for What obligationsa product? defective difficult for defendants entirety. inits to avoid liability This isamuchlower threshold for andmakes aclaimant to satisfy it rather thantheiractual contribution to thedevelopment ofthedisease. contribution of each defendant to the risk of the disease developing, appropriate was apportionment onthe ofliability to based bejudged Civ86 EWCA Limited Docks [2016] Manchester Dry isindeterminable. For example,of thearisinginjury in for certain (such diseases as mesothelioma) where the exact cause There is also important case law in relation in negligence to liability • • • ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 knowledge at thetime (knownasthedevelopment risksdefence). to discover thedefect given thestate ofscientific and technical The producer could have not reasonably have expected been The damageispurely economic. The product was not inthe course ofbusiness. supplied supplied. The defect didnot exist intheproduct at thetimeitwas The defendant didnot supply theproduct to another. An importer into theEU. by nameortrade placingits markontheproduct). An own-brander (apersonwhoholds outastheproducer itself characteristicsessential oftheproduct. abstracted outtheprocess it,orcarried for attributing the The personwhoeithermanufactured theproduct, wonor constituted adefect for oftheConsumer thepurposes Protection Act. to take into consideration whether whendeciding that feature inaproductThe balanceofriskandbenefit feature was important subjective expectation oftheconsumerorconsumersgenerally. in relation to aconsumer'slegal entitlement, to asopposed The reasonable expectation ofsafety was anobjective test the case in theharmful characteristic aswasidentifying that injury, caused The defect intheproduct must beidentifiedfirst (rather than The action istime-barred. The userhadknowledge ofthedefect. limit in which proceedings canbebrought? limit inwhichproceedings dothey oweandtowhom? or duties A vNational Blood EWHCQB446 Authority [2001] itwas held that the Heneghan vHeneghan ). into circulation. Generally, “put into circulation” isaccepted to mean stop often exists years from whenthedefective product was first put for ofmindisnot unsoundness counted). However, anabsolute long- towhich thepersonseeking bringanaction was underalegal disability There are afew exceptions to thisgeneral rule (for example, any periodin • • defendant withinthree years ofeither: the general rule isthat aclaimant must bringanaction against a For Consumer Protection Act claims,theLimitation Act states that on whichtheinjured knowledge persongained oftheinjury. the date onwhichthecause ofaction came into existence orthedate the claimant, there isashorter limitation periodofthree years from to inrespect ofapersonalinjury includedamages claimed damages tort occasioning claimsfor other thanpersonalinjury. damages Where of sixyears for actions inrespect ofsimple contracts andactions in Limitation Act 1980,whichstipulates that there isa limitation period The timelimitinwhichproceedings can bebrought is set outinthe to iftheuservoluntarily exclude liability continuedto usethat product. the product before any damageoccurred could by beused theproducer Civ847, EWCA [2016] An important case in this area is passes thereasonablenesspasses test. property damage ispermitted, aslong astheexclusion orrestriction for ordeath. Exclusion ofliability occasioning negligence personal injury manufacturers from for excluding liability that negligence causes a consumerto report damagewithin24 hours).UCTA alsoprohibits dependent ononerousmaking liability requirements (suchasrequiring are disproportionately prejudicial to a consumer. This might include frombusinesses incorporating contractual that terms limitingliability More generally, theUnfair Contract Terms Act 1977 (UCTA) precludes forliability theirproduct orfit not quality beingofsatisfactory for purpose. statutorily unenforceable. For example, cannot abusiness exclude in business-to-consumer contracts, making certain contractual terms Similarly, the Consumer Rights Act enforces restrictions other statutory whether through contractual means, anotice or any other provision. forlimiting orexcluding liability arisingfrom damages adefective product, 7oftheConsumerUnder section Protection Act, isprohibited aparty from in thismanner. restrictions ofmanufacturers ontheability to exclude orrestrict liability limit orexclude that liability. However, there are several statutory arising from defective products by includingcontractual terms that liability can limitits The general isthat commonlawposition aparty andare there for products liability defective 5. Canasupplierlimitits Excluding/limiting liability a marketing process inwhichitisoffered to thepublicto beconsumed. when theproduct istaken outofthemanufacturing process andenters the cause ofaction was previously vested, ifearlier. The date ofknowledge ofthe claimant orofany personinwhom The date onwhichthecause ofaction came into existence. warranty periodfor consumerproducts? or minimum by Is implied there law? quality a mandatory orwarranties Are guarantees asto lawsapply? protection consumer onasupplierdoingthis?Do restrictions statutory which held that auser'sknowledge ofthedefect in Howmet Ltd v Economy Drives Ltd & Ors Country Q&A GLOBAL GUIDE 2018 GLOBAL PRODUCT LIABILITYPRODUCT AND SAFETY showed the threshold that claimants must reach reach claimants must that showed the threshold Hufford v Samsung Electronics (UK)Hufford [2014] Limited cross-examined? Stay proceedings entirely until there is pre-action compliance. is pre-action there until entirely proceedings Stay Take the failure to comply into consideration when awarding costs. when awarding consideration into comply to the failure Take party. the offending against sanctions Apply Evidence is given in proceedings in accordance with the CPR, which in accordance in proceedings Evidence is given the evidence of a witness by needs that be proved to fact any that states witness Any public. in evidence given oral their by trial at proved be to is been served have trial must at on evidence a party that wishes rely to a for trial. It is rare before witness statement of a written in the form trial which was at submitted new be orally evidence to allow to court included statement. in the witness'not written • is agreed) phase (assuming no settlement this pre-action Following and serving issuing claimant the by started are claimtheir proceedings on the defendant(s). format) (in the prescribed form standard? and to what of proof 8. Who has the burden the elements prove to on the claimant is generally of proof The burden against the case prove is to the standard of the claim. In civil matters, is lower This standard on the balance of probabilities. the defendant be made out must the case which is that than the criminal standard, doubt. all reasonable beyond in The judgment EWHC 2956 (TCC) under section 3 of the Consumer defective was a product show that to began fire a destructive show that could The claimant Act. Protection the product that prove not in question but could the product around the of favour in found court The fire. that for catalyst the itselfwas to discharge deemedevidence be insufficient to as this was defendant, defective. was show the product to burden the claimant's in proceedings How is evidence given witnesses and are 9. Multi-track claims can be heard in either the High Court or the County County or the the High Court in either heard be claims can Multi-track been have that than GB£50,000 worth less claims However, Court. a County to transferred generally are commencedHigh Court in the to be tried in the High for them reason is a specific there unless Court an unusually of law or question difficult as a particularly (such Court in the outcome). public interest great because Court the County in heard typically small claims are and track Fast low. complexity these and are of the claims assigned to tracks the value are there but instance, in the first a judge alone by heard Civil claims are Jury judges proceedings. appeal in any available multiple not are trials liability cases. in product proceedings How are started? 7. proceedings before (CPR), Rules Civil Procedure Under the English in participate to encouraged strongly commenced, litigants are are cases,some in and, evidence, correspondence exchangesof pre-action to Failure protocols). (pre-action procedures prescribed to according for the ramifications have can with these protocols pre-action comply party and the court can: defaulting • • https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 29 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide liability decided disputes a judge or a panel of by generally judges? juries Are used in certain circumstances? Fast track. Fast Small claims track. Multi-track. An implied term that the goods supplied are fit for a particular fit the goods supplied are that An implied term purpose the supplier purpose, has been if that made known to implication. or by expressly An implied term that the goods supplied under the contract are are the goods supplied under the contract that An implied term of satisfactory quality. identified early and can be rectified before liability occurs. rectified before can be and early identified and/or enquiries relating to the product. to enquiries relating and/or surveillance procedure post-market an effective Implementing are liabilities with a product risks or potential any so that proportionate to the risk the product could present to a to present could the risk the product to proportionate consumer. consumer complaints any for system an effective Implementing Implementing an internal quality body. an internal assurance Implementing with the product, provided are warnings sufficient Ensuring • • case is assigned. Judges allocate defended claims to one of three one of three claims to defended is assigned.case Judges allocate the:These are stage. an early at tracks procedural • Product liability cases are heard in the first instance in either the High High the either in instance first the in heard liability cases are Product which the particular to on the track depending Court or the County Court 6. In which courts product are liability cases product Are brought? PRODUCT LIABILITYPRODUCT LITIGATION requirements. For example, in the automotive industry, manufacturers industry, manufacturers in the automotive example, For requirements. 30 days the first use after fair against refund any offset to entitled are passed. have purchase from retailer can replace a defective product rather than attempt to repair repair to than attempt rather product a defective replace can retailer cost-effective. is more it if that these statutory to general exceptions also have sectors Certain These rights are subject to them not being unfairly disproportionate disproportionate unfairly being not them subjectto Theserightsare a example, For implement. to impossible or simply on the retailer, onus flips onto the consumer to prove that the product was defective at defective was product the that prove to consumer the onto flips onus or replacing repairing at attempt If the required the time of purchase. if or, a refund to the consumer is entitled is ineffective, the product a price reduction. the product, retain they wish to or replace a defective product within the first six months of the goods of the goods six months first within the product a defective or replace time, the onus is on the During this the consumer. to being delivered the period, this After defective. not is product the that prove to retailer 30 days from taking delivery taking the 30 days and ownership of the goods, where from as described.for purpose or not unfit is unsatisfactory, product repair to retailer the relevant require to the right also have Consumers The Consumer Rights Act affords consumers certain minimum statutory consumers certain affords Act Rights The Consumer consumers example, For out of. be contracted which cannot warranties, in the first refund a full for the product reject to the right afforded are • between a business and a consumer, including: between a business and a consumer, • The Consumer Rights Act implies certain warranties into any contract contract any into warranties implies certain Act Rights The Consumer • • Practical considerations for limiting liability include: for considerations Practical • • Country Q&A 30 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide • • • • disclosure requires to disclose parties that: alldocuments The CPRprovides for pre-trial disclosure incivil proceedings. Standard disclosure/discovery11. Ispre-trial andwhichrules apply? required report. acknowledge to act independently theirduty whenpreparing their are to beimpartialintheiranalysisExperts expected andmust forjoint expert both parties. thecourtmay exerciseIn somecases, powerto its appoint asingle otherwise. The other sidecan putwritten questionsto theexpert. mustevidence beintheform ofawritten report unless thecourtdirects outtheprocedureThe CPRsets for opinionevidence. expert The expert aspartofageneralevidence, reform across thecivillitigation system. recent trend for to control courts more costs tightly inrelation to expert reasonably required to resolve the proceedings. There a has been Parties can rely butonly opinionevidence, onexpert that whichis opinion evidenceandare there able torely onexpert 10. Are parties it isreferred to. alongside as an exhibit the relevant statementserved witness in which that evidence isintended to berelied onistypically Any documentary Generally, are to witnesses subject cross-examination. ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 consumer safety andpromote bestpractice for manufacturers. the European objective is to ensure Economic Area. primary Its for andofficers authorities marketfrom throughout surveillance Description. W PROSAFE Regulations 2005. 2015, Consumer Protection Act 1987 andGeneral Product Safety Description. W legislation.gov.uk Adversely affect case. another party's Adversely affect theirown case. intendThey to rely onat trial. Support another party's case. Support another party's www.prosafe.org www.legislation.gov.uk a third party? If not, are or there other ways toobtainevidencefrom aparty for rulesorprocedures it? special Official website Official containing the Consumer Rights Act PROSAFE isanon-profit professional organisation ONLINE RESOURCES There are a number of interim applications that can be awarded by ofinterimarerelief available13. What types before a full trial and • • • serioussanctions, including: can give riseto very potentially disclosable whenlitigation documents iscontemplated There for can beliability spoliation Failure ofevidence. all to preserve for12. Isthere liability spoliation ofevidence/a for remedy destruction control. to believed of documents beintheparty's disclosure, eitherrelating to identified document aspecific ora category such documentation. The courtmay alsomake anorder for specific to performunder anongoingduty areasonable search for any When searching for documentation for disclosure, are all parties judgment. The application for permissionisgenerally heard without requireAppellants permission to appeal aCounty Court orHighCourt ofappealare available?15. What types a costs order. and proceduralthe conduct of the parties compliance when making Generally, thecourttakes a holistic of the case, of the merits view will beunlikely to berecoverable. were reasonably incurred. Those costs the court unreasonable deems arethat courts taking anincreasingly stringent look at whether costs The civillitigation system hasrecently reformed, been withthe effect are costs andwhenthey those to bepaid. whether costs are payable to by another, oneparty theamount of of ways inpractice. Ultimately, thecourthaswidediscretion asto successful party. This general principle inanumber can bemodified The general principle is that the losing paysthe costs of party the withthe associated recover costs its party Canthesuccessful 14. should always consult theCPRfor guidanceasto application. theirspecific ofinterim oftheorders application,type astheseverity fluctuate. Aparty Part 25. There are different thresholds of proof and evidence for each A non-exhaustive list ofpotential interim remedies can befound inCPR • • the courtbefore thefull trial,including: documents. The drawing ofadverse inferences asto thecontents ofthose part thereof). particularsofclaimordefenceThe striking outofaparty's (or Costs sanctions. Orders for for security costs. Applications for aposition. interim injunctions to preserve in what circumstances? evidence(inparticular,of orfailure topreserve theproduct)? litigation, such as legal fees and experts costs and towhat costs extent? litigation, suchas legal and experts fees Country Q&A GLOBAL GUIDE 2018 GLOBAL PRODUCT LIABILITYPRODUCT AND SAFETY ). including where a partially a where including entity a party responsible not is to the proceedings? liability claim? or exemplary punitive Are and in what damages available circumstances? see Question 19 from one of the parties, who may then recover a proportion from all from a proportion one of the parties, then recover who may from party each is determined from The contribution tortfeasors. the other their that which states 1978 Act under the Civil Liability (Contribution) having and equitable is just what to will be according contribution the damage in question. of their responsibility for the extent to regard the damage for responsible partially a party who is only Therefore, damages paid than a the total to of a contribution less make would negligent action. party a fundamentally who committed never occurred. These principles are also generally applied in claims also generally These are principles occurred. never Act. Protection under the Consumer of in breach a claim grounded is similar for principle The general be placed position in the same should the claimant where contract, had been performed. as if the contract behind motive as the general rare, exceedingly damages are Punitive than punish the rather the claimant damages compensate is to deliberate reserved cases involving damages are Punitive for defendant. be made the money to that has calculated the defendant torts where damages Punitive payable. damages the exceeds wrongdoing the from of contract. breaches for remedy an available not are liability is apportioned, several/how and liability Is joint 20. and several. or joint liability claim, In a tortious several, be joint, can action of cause the where tortfeasors joint considered are Parties support the is, the evidence (that and facts is the same each against where tortfeasors party) each against concurrent and action same but those torts combine torts separate for partyeach is responsible the injurious result. produce to liable, and severally jointly are of those cases,In both the tortfeasors of their damages value claim the full can the defendant that meaning Remedies to a successful remedies party18. What available are in a product a successful party to compensatory to is limited available The remedy generally The courts do not with very exceptions. damages few only, damages. punitive award of destruction or monetary into (damage separated loss are Damages personal or (death non-monetary and profits) loss lost and property damages calculating for principles well-established are injury).There ( conduct exemplary The courts award can a defendant's damages where outrageous. has been particularly on them? limitations there and are damages are How calculated 19. damages of is tort in the calculation for principle The fundamental the damage caused by for compensated be should the claimant that as far be restored, should the claimant words, In other the tortfeasor. tort beenthe had in have positiontheythe would to possible, is as Emerald Emerald ). https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 31 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide Are contingency fee or no win no fee arrangements allowed? arrangements contingencyAre or no win no fee fee proceedings available? If so, what are the basic requirements? the basic are If so, what proceedings available? used? commonly they Are Specify the court that will manage the claims on the group register. Specify register. the claims on the group will manage the court that relevant claims should be placed. claims should relevant be should claims that identifies any issue that Specify the GLO managed in the group. Contain directions about the “group register” which all into about the “group directions Contain litigation costs which were increasingly disproportionate to the issues to disproportionate increasingly were which costs litigation damage-based and conditional fee agreements Similarly, in dispute. common fairly under the CPR and are permitted both are arrangements allowed. not are impecunious contingency claimants. Full fees for Jackson Reforms. These reforms were the result of a high-level review review of a high-level the result were These reforms Jackson Reforms. an eminent Jackson, Justice Lord by costs conducted of civil litigation of spiralling a perceived to in response in 2009 judge of appeal, Third party litigation funding is allowed and is becoming increasingly is becoming and increasingly is allowed party funding litigation Third recent the following Wales and England in litigation civil in common Litigation funding Litigation parties third funding by Is litigation Is it common? allowed? 17. or more GLO issues is binding on the parties to all other claims that issues claims that is binding on the parties all other to GLO or more group. in that are • one to in relation register on the group a judgment that This means • A GLO can also be made where there are several claims that give rise give claims that several are there also be made where can A GLO must: The GLO or law. issues of fact common or related to • claim, they must show that they have the same interest at all stages all stages at interest the same they have show that claim, they must ( of judgment the final date at just and not of the proceedings Airways v British plc [2010] EWCASupplies Civ 1284 Ltd Any number of claimants or defendants can be joined can as parties to number of claimants or defendants Any the court using its a claim, and these by then be consolidated can part in a consolidated a party under the CPR. take For to discretion claims to be considered in a grouped fashion. The court can use its can The court fashion. in a grouped be considered claims to be consolidatedcan or claims do so, powers to management case broad (GLO). Order Litigation a Group the issue of through While true “class action” proceedings are not available for product product for available not are proceedings action” true “class While enable that mechanisms available procedural are liability claims, there 16. Are class actions, proceedings16. Are representative or co-ordinated interfere with a finding of fact that was open to the first instance court. instance to the first was open that fact of with a finding interfere proceedingsClass actions/representative of the court's discretion. Appeals made on the basis of an error of of error an of basis the on made Appeals discretion. court's the of to Permission grounds. available common than the other less are fact courts not do appellate the as granted, rarely is ground this on appeal The appellant must show that the judgment of the court is wrong or of the court is wrong the judgment show that must The appellant judgmentA irregularity. other or procedural becauseserious a of unjust “wrong” the purposes be shown if it can appeal, of an is considered for in the exercise or an error of fact an error of law, is an error there that an oral hearing (meaning the application is considered solely on the solely is considered application the (meaning hearing an oral deems the judge that submissions) unless parties'basis of the written hearing. without an oral heard be fairly cannot the application Country Q&A 32 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide • • • • • • • using generic consumer law enforcement powers, that allow them to: The Consumer Rights Act broad gives powersto local to act authorities European Commission concerningproduct defects. alert system for dangerous non-food products) notifications to the (rapid The local alsoliaisewithBEISinmakingRAPEX authorities can also enter and search premises, and seize or documents products. which include issuing requirements to warn, and recall notices. They Regulations, Part 3,local have broad authorities enforcement powers, their trading standards UndertheGeneral Product departments. Safety enforce product safety intheirjurisdiction, dothrough whichthey laws enforcementown specific haveto agencies). Local aduty authorities delegated to local (although authorities various sectors have their product safety Day-to-day issues. for responsibility enforcement is responsible for high-level and strategy policy in relation to regulating forThe Department Energy Business, andIndustrial is Strategy (BEIS) 22. Are there general safety Are there regulators issues? ofproduct safety regulations, ofenforcement. aswelldealing withaspects broad authorities powersto issuesector-specific theregulatory gives Part IIoftheConsumer Protection Act alsogoverns product safety and that iscompatible withthenature oftheproduct. notuse does present any riskto theconsumer, oronly minimalrisk as a productdefined that under reasonably foreseeable conditions of mustis that only aparty introduce “safe” products to themarket, safety (General Product Safety Directive). The fundamental principle 2005, whichimplement Directive 2001/95/EC ongeneral product in theUKismainly governed by theGeneral Product Safety Regulations product safety, most ofwhichderive from EUlegislation. Product safety There andregulations isawiderange oflaws in the UKgoverning 21. What are themainlawsandregulations for safety? product PRODUCT SAFETY ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 the relevant manufacturer. Issue aproduct recall enforcement notice, onten notice days' to to theconsumer, whichrestricts theirimportandsale. Issue awithdrawal notice against products dangerous deemed Seize anddetain goods. products.Inspect onofbusiness. thecarrying Observe Test equipment. Require information. outline theirrole andpowers. Briefly specific regulators goods or services? for particular • • regulations andEuropean standards. The most relevant guidanceis: actions, includingrecalls, inaccordance withEUdirectives, UK provided at EU-level to assist manufacturers undertaking corrective a codeofpractice to provide guidanceinthisarea. There isguidance toor howadecision recall isto betaken. BEISiscurrently workingon There islittle isto guidanceonhowariskassessment beconducted to consumers. may suffice, such as a withdrawal from the supply chain, or warnings Product recall isconsidered alast resort. Othercorrective measures the General Product Safety Regulations. corrective actions to deal withunsafe products sold intheUKunder Manufacturers of consumer products have obligations to conduct is required recall when a product rules or regulations specify 23. Do Product recall • • • • • • • contain: suggestions asto what acorrective action announcement should for manufacturers. The PROSAFE guidance provides the following objective isto ensure consumer safety andpromote practice best officers from throughout theEuropean Economic Area. primary Its profit professional organisation and authorities for market surveillance for to seeking initiate aproduct businesses recall. PROSAFE isanon- be conducted. However, there isEuropean-level guidance available requirementsregulatory as to the way in which product recalls should advertising requirements,There are orother nomandatory specific for requirements product advertising 24. Are there mandatory See Guide (November 2011). PROSAFE Consumer Product Safety inEurope Corrective Action methodology. European Commission GuidanceonEUgeneral riskassessment A website address orhotline for further information. arrange for arepair). whether andwhere to bringorsend backtheproduct orhowto Clear instructions onhowto deal withtheproduct (suchas proposed refund orreplacement. Information ofcorrective onthe type action proposed and any Details of thesafety riskorthepotential safety risk. A clear ofwhat description iswrong withtheproduct. of theunsafe product). serial number, barcode,colour, size andapicture oradrawing Product identification details (brand, model,batch number, containing words suchas“Important Safety Warning”. A clear heading that attention draws to theannouncement Question 24Question recalls and other corrective actions? Are any criteriaspecified? actions? andother corrective recalls should or howcompanies make product regarding decisions should beconducted? Are there otherrecalls? rulesgoverning recall howaproduct . Country Q&A GLOBAL GUIDE 2018 GLOBAL PRODUCT LIABILITYPRODUCT AND SAFETY come into force? 28. Are there any proposals for reform and when are they likely to to likely they are and when reform for proposals any there 28. Are launching announced it was that the UK government 2014, In November published in was A report system. recall the UK product of a review of a Recall the establishment to February led which eventually 2016, be to is likely Group Steering of that The report Group. Steering Review product for addition, a new In code of practice published imminently. be published. and will shortly being produced is currently recalls there Parliament, UK the of chamber upper the Lords, of House the In 2017. on 18 October reform for proposals discussion regarding was Faulds Lynn Ms campaigner consumer prominent a year, previous The with chairing an Minister Affairs the Consumer by tasked was Wood and general system recall the UK's product into review independent published in February was report Ms Wood's framework. safety product the recommendations that suggested and the House of Lords 2016, in the and implemented considered be seriously should of Ms Wood centralised a more for echoed pressures general Her report future. near in recalls of product and monitoring authority the initiation governing agency or safety product national a of creation the UK,the specifically As of yet, system. the entire co-ordinate to excellence” for a “centre her recommendations. implemented fully has not the government https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 33 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide . cases? Are there any legal or procedural issues that are are issues that procedural or legal any there cases? Are particularattracting jurisdiction? interest in your Have there been any recent been there changes significant any important or Have and/or keep the authorities updated progress about the keep of and/or corrective actions? In practice, do authorities expect periodic reports?update or safety issuesor safety to the regulatory authorities? Question 28 be seen. The government is using various steering and working groups and working groups steering is using various The government be seen. experts guide this comprised to of legal and industry professionals period. transitional at this stage exactly what form that will take. Whether there will be there Whether will take. that form what exactly this stage at product if example (for Brexit of result a as law of area this changesto to or stringent) is yet relaxed laws be more will be amended to safety regulations concerning product liability and safety will cease to have have to will cease liability and safety concerning product regulations the writing, of time the At law. UK into incorporated be will and effect, Union (Withdrawal) considering the European was House of Commons unclear amendmentsand additions, and so it is and proposed Bill See much is attracting of Brexit impact the potential broadly, More EU applicable currently Many of law. all areas across comment The question of consumer product safety is very safety public much in the The question of consumer product risks associated on domestic fire is mainly The focus in the UK. spotlight sectors. all product affect but the implications products, with electrical 27. Are there any recent in product trends any there Are liability law? and safety 27. vary widely. This is a rapidly changing area of the law. of the law. area changing This is a rapidly vary widely. TRENDS AND REFORM RECENT The supervision of product recalls is generally left to the discretion of discretion the to left supervisionThe generally is recalls product of the authoritiesof can expectations the authorities. practice, In local of level 5, which levies a £5,000 fine against the guilty party. the guilty party. fine against a £5,000 5, which levies of level reportsprogress specific a provide requirementto there Is 26. conviction they are liable to imprisonment for a term not exceeding not a term for imprisonment to liable they are conviction or scale standard the on 5 level exceeding fine not a or to months three for summaryfound in of fines is scale convictions Thestandard both. to 1982 and goes a maximum up to Act Justice of the Criminal section 37 If a producer fails to make this notification, they commit an offence they commit an offence this notification, make to fails If a producer summary On Regulations. Safety Product s20(3) under of the General There is a mandatory obligation to report dangerous consumer consumer is a mandatory dangerous There report to obligation Regulations, Safety Product 9 of the General Article under products regulations. and under some sector-specific 25. Is there a mandatory25. Is there report to obligation products dangerous Country Q&A 34 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide34 • • • • • Professional associations/memberships: • • • • Recent litigation andtransactions chemicals, andasbestos automotive, electrical sportinggoods,machinery, andelectronics, technologies new cosmetics, includingIoTand Artificial Intelligence, investigations, commercial litigation, consumerproducts, life sciences, Areas ofpractice. Professional qualifications. Contributor Profiles ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 Comparative Law. Product Forum –BritishInstitute Liability ofInternational and Defense Research Institute. International Association ofDefense Counsel. CouncilProduct (US). Liability Advisory Organization (Director). International Consumer Products Health andSafety arisingfrom issues liability technologies. new Retained asadvisorto OECD Consumer Policy Committee on pharmaceutical industry. arising outofthesupply ofcontaminated products inthe used Co-ordinated international defence ofproduct claims liability 60 countries. recalls, involving more than150millionproducts across some Co-ordinated oneofthelargest ever global consumerproduct the Grenfell Tower Fire tragedy intheUK. Representing aCore arisingfrom Participant inaPublic Inquiry Product liability, product safety, product compliance, Cooley (UK) LLP Cooley (UK) Rod Partner Freeman, W E T

www.cooley.com +44 20 75564429 [email protected] England andWales, Solicitor • • • Recent litigation andtransactions electrical andelectronics,machinery, chemicals. technologies (IoT, artificialintelligence), automotive, sportinggoods, commercial litigation, life new devices, medical cosmetics, sciences, Areas ofpractice. Professional qualifications. publication sinceMay 2016. Publications. • • • • • Professional associations/memberships: Languages. • Representing apre-eminent manufacturer inrespect ofcriminal pre-eminent global manufacturers. internationalManages portfolios ofconsumerclaimsagainst the Grenfell Tower Fire tragedy intheUK. Representing aCore arisingfrom Participant inaPublic Inquiry Organisation. International Consumer Products Health andSafety Comparative Law. Product Forum –BritishInstitute Liability ofInternational and Defense Research Institute. Bar Association.International International Association ofDefense Counsel. andtoys. cosmetics in theworld, involving includingthose consumerelectronics, Co-ordinates someofthelargest international product recalls product safety legislation. investigations into alleged product safety underUK issues French, German Monthly product safety article inthe Product liability, product compliance, investigations, W E T LLP Cooley (UK) Sarah-Jane Associate Dobson,

[email protected] www.cooley.com +44 20 75564432 Queensland, Australia,Queensland, Solicitor Product Safety Letter

Country Q&A GLOBAL GUIDE 2018 GLOBAL PRODUCT LIABILITYPRODUCT AND SAFETY British Institute of of British Institute https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 35 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide England and Wales, Solicitor and Wales, England www.cooley.com +44 20 7556 4226+44 20 [email protected]

Carol Roberts, Carol Associate (UK)Cooley LLP T E W Product compliance, product liability, commercial commercial liability, compliance, product Product French Advising a global company on the impact of new European of new on the impact European company a global Advising surveillance market and enforcement. for proposals requirements in respect of a new product roll-out. of a new product in respect requirements companies on multi-jurisdictional a number of global Advising recalls. product Advising a number of leading companies with the launch of a number of leading Advising products. consumer-electronic innovative compliance product on international company a global Advising International and Comparative Law. and Comparative International Languages. associations/memberships. Professional • • • • Areas of practice. Areas and consumer products retail litigation, and transactions litigation Recent Professional qualifications. qualifications. Professional Contributor Profiles Contributor Country Q&A 36 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide Law stated as at 1 January 2018 statedLaw asat 1January • • theinjured must cases prove:In negligence party inproduct isnegligence. cases ofliability liability The originaltheory underthemostcommon liability toestablish 2. What isrequired can adverselylawsuits affect pendingorfuture product cases. liability againstthe agencies manufacturers andproduct sellers. and The fines andregulationsViolation laws ofthese can resultby andlawsuits infines passregulations andthentheagencies toentities implement laws. these create pre-sale andpost-sale product safety responsibilities for various the Food andDrug Administration. The Congress that laws passes Commission, theNational Highway Traffic Safety Administration, and government that deal agencies with it: the Consumer Product Safety There are federal that affect laws product safety andthree main state that residents sellinto andcompanies each state. as amatter for each state to establish asitislocal lawthat affects There is generally no federal product common law. liability It is viewed ordamageisfirst knowingwhich forstate lawapplies. aninjury states. Therefore, thekey to determining potential anentity's responsibility Through this process, the law has developed differently in the various law.case precedents onwhichto basetheirstatutory first adopted in product their laws state liability the despite lack of or modified by state legislatures in Some statestate laws. legislatures lawwasliability firstestablished inthecommonlawandthenadopted case law from the trial courts and appellate product courts. Some developed ineach state. Itiscourt-made onprior lawandisbased For product liability, most oftheUSlawiscommonthat has and legal requirements for importers, manufacturers andproduct sellers. and thecommonlaw, whichmakes itdifficult to clearly thelaw describe Product lawintheUSisanamalgam liability ofstate andfederal laws 1. What are themainareas oflawandregulation relating toproduct SOURCES OFLAW andBrookeBowman LLP Kenneth Ross and Ted Dorenkamp overview States: in theUnited andsafety liability Product ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 manufacturer orproduct seller. The product was defective whenitleft thehandsof There was adefect in theproduct that theplaintiff caused harm. liability apply in certain circumstances? apply incertain liability strict Does defective? Whenisaproduct ofaction? causes liability?

and, in 1998, wasand, in1998, incorporated into Restatement thenew of Torts 3d: therefore developed inthe1970s, whichwas adopted by many courts much guidanceto manufacturers orjuries. The risk-utility test was However, this test was criticised as being too vague and not providing attorneys that believed proving theircase would befairly easy. result was that were many cases brought against manufacturers and dangerous andthat theirinjury. this caused expected thanthey The test. This test allowed aconsumerto say that theproduct was more The originalbasisfor proving adefect was theconsumerexpectations • does the installation or delivery oftheproduct. the installationdoes ordelivery product manufacturer, distributor, retailer andmaybe acompany that the rawincludes material supplier, component part supplier, finished inthesupplyAny entity chaincan beliable for adefective product. This 3. Who is potentially liable for a defective What product? obligations admissible into courtduringatrial. can asthey affect theories thatof these evidence may be thetype liability. As thecase progresses through may drop they discovery, one for theplaintiff sues In most lawsuits, both andstrict negligence separate ofliability. theories In states,those stillthey talk and strictas about negligence liability there are some states that still use the consumer expectations test. adopted risk-utility and rejected consumer expectations. However, Today, ofstates themajority usetherisk-utility test. The Restatement amergingbeen andnegligence. ofstrict oftheconcepts liability As aresult, inthestates that have adopted risk-utility, there hasarguably asitallowsnegligence amanufacturer's conduct orfault to beconsidered. The risk-utility test, whichoriginally close to applied to strict liability, isvery more dangerous thantheplaintiff realised, themanufacturer may prevail. product oraspossible. as safeTherefore, asnecessary even iftheproduct was recover themanufacturer because can defend by itself saying that itmadethe to reduce the risks. This test as making it harder is viewed for plaintiffs to to weightherisksinproduct ofthemanufacturer against theability jury can useto iftheproduct decide isdefective ornot. factorsThese allow the Under therisk-utility test, there are various relatively clear factors that thejury of product lawinthefuture. liability of product lawasitexisted andfor in1998 liability thedevelopment Product (Restatement), Liability aleading source for thedescription The defect was brought aboutthrough thedefendant's negligence. or duties dothey oweandto whom? or duties

global.practicallaw.com/w-012-8129 Country Q&A GLOBAL GUIDE 2018 GLOBAL PRODUCT LIABILITYPRODUCT AND SAFETY liability decided disputes a judge or a panel of by generally judges? juries Are used in certain circumstances? statutory restrictions this? Do on a supplier doing consumer protection laws apply? as to guarantees Are or warranties mandatory a quality law? there implied Is by minimum or consumer products? for period warranty judges preside over the conduct of the trial and hearings involving involving hearings the trial and of the conduct over judges preside evidentiary over judge will preside magistrate An appointed issues. discovery and may involving matters, hearings pre-trial and other of the parties. consent trials by over preside programmes help with manufacturing defects. Risk assessment and defects. help with manufacturing programmes and the risk of design defects help reduce evaluations safety other and instructions. in warnings defects reasonably and use intended from risks anticipate to is goal The that product a designmanufacture then and and misuse, foreseeable for be given can and instructions risks. Warnings in reasonable results be designed cannot out. risks that residual LIABILITYPRODUCT LITIGATION 6. In which courts product are liability cases product Are brought? court federal or state liabilityeither in lawsuits brought be Product can of the parties and and the amount citizenship depending on the (state) negligence liability and its related of damages issue. Product at nature commenced is If the case in law. of state constructs causes are of action on rule will and case the over preside will judge court state a court, state and procedural evidentiary substantive state with issues in accordance jury by a trial The parties request may A judge. the presiding or by law. the lawsuit involves where jurisdiction have court may district federal In that states. of different citizens are that and defendant a plaintiff law and federal substantive the state court will follow the federal case, a trial by court, the parties request may As in state law. procedural district federal Typically, jury judge. the presiding or a bench trial by Excluding/limiting liability Excluding/limiting limit its5. Can a supplier defective liability products for there and are or limit its liability reduce can for a manufacturer ways many are There A products. selling defective from injury, resulting damage and loss its into buys incorporate to components manufacturer finished product against protection some achieve can it contract, the Through products. liability a defective supplier is negligent or sells when the component buyer the product; finished the for component wrong the or component clauses and indemnification use warranties to wants or manufacturer itself. protect part supplier to the component by given they role, In this of a finished product. is also a seller The manufacturer themselves protect to with their purchaser use the contract to also want and warranty reasonable a provide to want They liability. their limit or of liability clauses disclaimers and limitation to then include warranty liability. on their potential put some cap meant of techniques are that a multitude are there itself, the product For defect, has a manufacturing the product the chance that reduce to Quality and instructions. assurance in warnings or defect designdefect ). https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 37 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide see Question 20 limit in which proceedings can be brought? within which to bring a negligence claim. Some states have enacted enacted have bring a negligence claim. Somewithin which to states for limits impose absolute on the time frame that repose of statutes liability claim. product asserting any and statutes of repose impose restrictions on the time within which a impose restrictions of repose and statutes vary repose and of limitations state, Statutes by be brought. claim must bring must a plaintiff and vary in some states example, claim. For by of the injury years liabilitya strict within four case but has six years of notice to the defendant of the claim prior to filing the lawsuit, of the claim prior to and the defendant to of notice of lack of privity between the of contract permit the defence some states of limitation statutes Additionally, and the defendant. plaintiff injured simply whether the product is defective, defences in some states are are in some states defences is defective, the product whether simply than with negligence claims. narrower claims include lack of implied warranty and express breach to Defences injury Interveningnegligence. contributory asserting by comparative or liability strict As parties also be a defence. can negligence of third rather but defendant, a of conduct the evaluate does not typically The theory of liability dictates the available defences, often as a matter as a matter often The theory defences, the available of liability dictates of a or fault conduct the Negligence claims evaluate law. of state conduct, a plaintiff's raise can a defendant As a defence, defendant. the to as having caused misuse, or contributed product example for proximate cause of the injury. Similarly, even if product warnings are are warnings product if even Similarly, injury. the of cause proximate where doesexist not causation warn, sufficiently to in failing defective them. read to failed a plaintiff or instruct, and breach of implied and express warranties related to to related of implied warranties and express and breach or instruct, the is that defence of a lack of causation The thrust safety. product the not was the defect if defective, but even defective, is not product The primary defence to product liability claims (strict liability, negligence liability liability, The primary claims (strict product to defence centre These claims usually is lack of causation. of warranty) and breach warn adequately to failure defect, design or manufacturing around 4. What are the defences to a product the defences are 4. What liability a time claim? Is there what amount ( amount what Defences rules will help to determine which entity in the supply chain is ultimately ultimately chain is which entityin the supply determine to will help rules jurya everyone hold can beenhas who sued However, responsible. which entity pays determine can and then the defendants liable jointly Product liability law in the US abolished the necessityProduct of privity of party entity sue any can in the supply the injured and therefore contract and contractual rules procedural Despite various that, chain directly. can be multiple tiers of suppliers and sellers where each relationship relationship each where suppliers and sellers tiers of be multiple can identifying the exact Therefore, requirements. contractual has different very is situation specific. duties and given obligations in any fact the finished product manufacturer or the product seller or consumer. seller or the product manufacturer the finished product with its immediate has contracts manufacturer The finished product there However, suppliers of components and its purchasers. immediate The obligations and duties are complex as they are dependent on on dependent as theyare complex and dutiesThe obligations are may supplier material The raw chain. entity the the supply is in where part component the with dutiesand a contract obligations under have and duties obligations with no direct they have Therefore, supplier. Country Q&A 38 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide • fact, thecourtwillevaluate: testimony. Consequently, before presenting theopinionto thetrierof asagatekeeperacts opinion andscopeofexpert to theadmissibility matterin thesubject ( must beofthekindthat would bereasonably relied onby experts 702 must beapplicable to thefacts ofthecase ( must also be the product of reliable principles and methods, and it andmust onsufficientthe issues, bebased ordata.facts Theopinion matter,the subject theopinionmust behelpful to thedetermination of Infederalexperience. expert in must asan court,anexpert bequalified mattersubject isbeyond thelayperson's commonknowledge and opinionisoftenExpert required inproduct where cases the liability opinion evidenceandare there able torely onexpert 10. Are parties Federal Rules of Evidence 611 examination and to bearing issues on the credibility of the ( witness cross-examination isgenerally limited to matter thesubject ofthedirect can becross-examined by party. theopposing However, thescopeof the court( can bereadwitnesses, into therecord orcan bejudicially noticed by can bepresented throughexpert orqualified live testimony ofwitnesses Evidence can betestimonial, opinion,real ordemonstrative. Evidence 9. andare witnesses Howisevidence given inproceedings entitlement to by punitive damages clear andconvincing evidence. plaintiff hasaheightened burden ofpersuasionandmust demonstrate some states that allow punitive in product damages the cases, liability defendant's product isdefective In theplaintiff's andcaused injuries. based on the evidence presented that it is more likely than not that the or judge tofor find in the jury favour of the plaintiff, they must conclude guilt inacivilcase by apreponderance meaning that oftheevidence, The plaintiff hastheburden ofpersuasionto prove thedefendant's that contradicts oranswerstheplaintiff's evidence. the burden ofproduction shifts to thedefendant to present evidence evidence of the product's liability. When the plaintiff presents evidence, The plaintiff has the burden of proof, which means that he must produce 8. Whohastheburden ofproof andtowhat standard? the defendant. a certain periodoftime,for on example withinoneyear after service ordinarily require theplaintiff to file thecomplaint withthecourtwithin on adefendant orby publication. states, Inthose procedural rules ofthecomplaint a case officially withthe commences formal service court ( A case is typically by commenced filing a complaint in state or federal 7. started? Howare proceedings ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 Whether the theory ortechniquetested. can be(and hasbeen) Whether thetheory ). Additionally, thefacts anddata opinionrelies onwhichtheexpert special rules or procedures for rulesorprocedures it? special cross-examined? see, forsee, example, Federal Rules of CivilProcedure 3 see Federalsee Rules of Evidence 201; 601 see Federalsee Rules of Evidence 703 ). see Federalsee Rules of Evidence ). A party's witnesses ). witnesses A party's ). Insomestates, ). The court ). The see see provide testimony expert at trial but who are not specially retained, such Rules of CivilProcedure 26(a)(2)(B) ( publications, alist ofpriortestimony and a billingsummary qualifications witha of listthe witness' the opinions, a description of thatto willbeused summariseorsupport relied exhibits on,describe a complete statement for ofopinionsandbases them,facts ordata Rules of Civil Procedure 26(a)(2)(D) trial orasset outinthecourt'spre-trial order scheduling ( expert opinions prepare a report that must be disclosed 90 days before Federal court rules generally require retained that an expert to provide and foundational reliability. evidence or non-scientificevidence, with a focus on general acceptance criteria, mostadmissibility notably asitrelates to novel scientific Joiner, US136(1997) 522 Kumho Tire Co vCarmichael, General Co Elec 119 SCt v 1167 (1999); (See • • • • • in the possession, custodyin thepossession, orcontrol ofthird can any party parties, event under Federal Rules of Civil Procedure For evidence 26(a)(3). in accordanceand evidence with applicable court orders and in any of CivilProcedure Parties must also disclose 26(a)(2). trialwitnesses with applicable courtorders andinany event underFederal Rules 30 to 31 testimony through ( depositions Procedure 33to 36 examination( onotheror physical parties interrogatories, requests for admissionandrequests for mental (ofor inspection ESIandtangible documents, things),written requests for can subsequently parties usual cases, production serve andwhether theredamages, isany applicable insurance coverage. In willuseto claimsordefences, supportits the party of adescription electronicallydocuments, stored information (ESI)andtangible things 26(a) ( the commencement ofalawsuit Federal Rules require to exchange parties initialdisclosures shortly after disclosure/discovery11. Ispre-trial andwhichrules apply? required to priortoexpert bedeposed trialabsent circumstances. special require preparation of anyreport, expert and some do not permit the opinion at trial.State courtrules may differ insofar assomedonot willbeprohibitedThe expert from asto any undisclosed testifying report, rebuttal report (ifpermitted) deposition. orduringtheexpert's (2)(C) offacts oropinions( a summary must disclose and matter thesubject willtestify onwhichthewitness on) or treating physicians, not need provide a report, however, the party (foras employees ofaparty example, accountants, engineers, andso opinion. Any other factor that can bear onthereliability oftheexpert generally hasbeen accepted. Whether thetheory Whether there are applicable standards. The knownorpotential rate oferror. review andpublication. subjectedto ortechnique hasbeen peer Whether thetheory a third party? If not, are or there other ways toobtainevidence from aparty Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993); vMerrell Pharmaceuticals, Dow (1993); Daubert US579 Inc,509 ). Under this rule, each party must identify witnesses, disclose witnesses, ). Underthisrule, must identify each party ). Generally, opinionsmust expert be disclosed in the expert's ). Parties must alsomake disclosures expert inaccordance ). Additionally, can perpetuate parties orobtain ). Some states). Some apply slightly different expert Federal Rules of CivilProcedure 26(a) see Federalsee Rules of CivilProcedure ). Witnesses that a party intends that to aparty ). Witnesses see Federalsee Rules of CivilProcedure ). reportThe expert's must contain see Federalsee Rules of Civil see Federalsee Federal Country Q&A ). Wal-Mart Wal-Mart 28 USC § 1407 ). Federal statutes statutes ). Federal Federal Rules of Civil of Rules Federal Federal Rules of Civil of Rules Federal GLOBAL GUIDE 2018 GLOBAL ). Individuals falling within the ). Individuals falling Federal Rules of Civil Procedure Civil Procedure of Rules Federal see 28 USC § 1332(d)(11) ). A party can also seek a writ of mandamus for A party also seek can of mandamus for a writ ). PRODUCT LIABILITYPRODUCT AND SAFETY ). A party seeking class certification must affirmatively A party affirmatively must seeking class certification ). ). An appeal is typically a claim that the lower court the lower a claim that is typically An appeal ). ). The party seeking class certification must also demonstrate partyThe also demonstrate must seeking class certification ). proceedings available? If so, what are the basic requirements? the basic are If so, what proceedings available? used? commonly they Are see 28 USC § 1292(b) resolution of the other cases short of trials. Mass tort actions brought brought actions cases short of trials. Mass tort of the other resolution under and consolidated court federal to be removed court can in state ( Act Fairness Action the Class cases several or consolidate co-ordinate a mechanism to also provide all pre- where in one judicial district districts federal pending in different ( litigation) (multi-district conducted are trial matters so numerous that joinder of all members is impracticable, where there there where joinder of all members is impracticable, that so numerous claims the the class, where common to or fact questions of law are typical of the class, and where are of the representatives or defences and adequately fairly parties will representative the court finds the of the class ( the interests protect 23(a) the members of the class common to of law or fact “questions that individual members” only affecting questions any over predominate the for methods available other to is “superior the class action and that of the controversy” adjudication and efficient fair ( 23(b) Procedure ( in this rule element compliance with each demonstrate 564 US 338 (2011) Inc v Dukes, Stores, to preserve out if they wish opt affirmatively their usually class must approval. court require usually Settlements action. of cause individual common in liabilitybecome has more litigation product action Class because issues and damages in of causation However, years. recent injurypersonal plaintiff, individual the to personal usually are claims method a preferred denied. are Class actions is often class certification economic damages. recover to pre-trial where action a mass tort injuryPersonal for opt can plaintiffs selected of the individual cases are a few and consolidated are matters agreement by selected cases is, trials, that usually be bellwether to parties both or the court as being exemplary counsel for of the lead is that The intention and defences. claims of the parties' respective the parties on likely trials will inform of thesethe outcome bellwether trials on these claims and issuesfacilitate and outcomes of future prior to judgment, for example on motions to dismiss or for summary or for dismiss to on motions example for judgment, prior to orders or certain entirely, dispose the case of do not that judgment interlocutoryan to discovery,subject during be appeal may given ( interlocutory partyA seek may interlocutory rulings. where appeal to is critical of law that question a controlling the decision involves addressed reasonably be cannot and that of the case, the outcome of permit appeal rules Federal judgment. after appeal on a standard ( certifications class or deny decisions granting 23(f)Procedure in an evidentiary court reviewserred a An appellate ruling. or legal standard, evidentiary court's trial discretion of abuse an on rulings de of law will be reviewed a point reviews of rulings regarding while an appeal. judges for courts empanel three typically Appellate novo. of the an en banc hearing court for A party the appellate petition may court. appellate entire proceedingsClass actions/representative class actions, proceedings16. Are representative or co-ordinated law in which or federal under either state available are Class actions of a class of persons sue on behalf class representatives one or more is if the class only class actions allow Rules Federal situated. similarly Key Tronic Corp Tronic Key see Federal Rules of Civil Procedure of Rules see Federal ). However, the prevailing party in a trial the prevailing ). However, https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 39 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide ). The prevailing party is loosely defined as the party party is loosely The prevailing ). extent? litigation, such as legal fees such as legal and expertslitigation, costs and to what in what circumstances? in what of or failure to preserve evidence (in particular, the product)? the to preserveof or failure evidence (in particular, Appeal from a civil trial judgment and interlocutory appeals are are interlocutory and appeals judgment trial civil a from Appeal decisions Court court proceedings. and federal state from available 15. What types15. What available? of appeal are prevailing party in limited circumstances, such as in actions under certain such as in actions party circumstances, in limited prevailing be frivolous. to determined or in actions statutes, consumer protection necessary to the case or related to the trial proceeding, rather than simplythan necessaryrather proceeding, trial the to related or case the to witness with associated those include costs Recoverable investigative. economical the most at they are trial, provided for and lodging travel the to be recoverable and costs may fees attorney's In some states, rate. expert, witness and interpreter fees ( fees expert, witness and interpreter 28 USC § 1920 54(d); reasonably be Costs must issues on the significant case. of the who prevails Generally, each side pays its own attorney's fees and costs in the absence side pays each fees its own attorney's Generally, otherwise providing of a statutory ( provision or contractual US 809 511 (1994) States, v United fees, copies, transcripts, as court filing costs, such certain recover can 14. Can the successful party its costs associated with the recover of the matter, whether by settlement or trial, to obtain relief or an or an relief obtain or trial, to settlement by whether of the matter, the defence mechanisms allow can Procedural judgment. enforceable for motion dismiss or to motion a through (dismissal) relief obtain to summary judgment. Apart from procedures to perpetuate testimony and secure evidence, and secure testimony perpetuate to procedures Apart from the conclusion to through liability litigate must plaintiff a product 13. What types of interim relief are available before a full trial and trial full a before types What 13. available relief interim are of from that spoliation. Sanctions can range from dismissal of a plaintiff'sa of dismissal from range can Sanctions spoliation. that from or inference an adverse to defences, of a defendant's claims or striking on the gravity depending sanction of the harm. some lesser are to presume that the lost or spoliated evidence, if produced, would evidence, if produced, or spoliated the lost that presume to are or the party to who destroyed or unfavourable been detrimental have bydefined generally is cases, spoliation evidence. the federal In lost be drawn can inference what law will control federal however, law, state for spoliation vary depending on state law. In some states an adverse In some states vary spoliation law. for on state depending jury or even in cases of intentional is warranted instruction inference they (jurors) be that may The instruction of evidence.negligent spoliation Spoliation is the intentional destruction, mutilation, alteration or or alteration mutilation, destruction, is the intentional Spoliation dutyThe preserve to evidenceevidence.of begins when concealment to or failing Destroying foreseeable. or reasonably is pending litigation Sanctions lawsuit spoliation. is the to relevant is that preserve information jurisdiction to issue subpoenas. issue subpoenas. to jurisdiction destruction remedy for of evidence/a spoliation liability12. Is there for obtain testimony and production by subpoena under Federal Rules Rules under Federal subpoena by and production testimony obtain similar rules. under courts operate state Most 45. of Civil Procedure which are expert witness disclosures, is for ordinarily The exception limited courts have state Additionally, trial. before required not often Country Q&A 40 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide suffering. Plaintiffs damages, can alsorecover punitive orexemplary ofcertain like damages, caps onrecovery loss ofconsortiumorpainand consortium, counsel,aidandcomfort). Many states statutory impose (pain andsuffering, loss andnon-pecuniary of and earning capacity) loss lost (economic expenses, including medical wages damages, in nature,generally which typically includepecuniary compensatory by stateRemedies available and are vary in product lawsuits liability inaproduct are available18. What party remedies toasuccessful Remedies rules ofprofessional conduct. Contingency fee arrangements are generally governed by each state's receive apercentage asfees, inadditionto oftherecovery costs. isthrough feelawsuits contingency agreements, where counselwill The more commonandpreferred method offinancing product liability attorney-client relationship andundertherules ofprofessional conduct. litigation financingpresents risks to theprotections afforded by the recent years and it is now generally permissible in the US. However, Rules applicable have to third-party financingoflawsuits relaxed in 17. allowed? Isitcommon? Islitigation fundingby third parties Litigation funding ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 programmes. information on reporting requirements andcorrective action Description. W National Highway Traffic Safety Administration (NHTSA) programmes. information on reporting requirements andcorrective action Description. W Food andDrugAdministration (FDA) programmes. information on reporting requirements andcorrective action Description. W Safety CommissionConsumer (CPSC) Product a pageonthiswebsite devoted to onlineresources inthisarea. complianceandproduct prevention. liability regulatory There isalso Ross involved onmost of theissues inproduct liability, product safety, Description. W Prevention Liability Product www.productliabilityprevention.com www.nhtsa.gov www.fda.gov www.cpsc.gov liability claim? liability fee ornowinfeeAre contingency arrangements allowed? This website contains over 90articles written by Kenneth whichhasextensive This isthewebsite oftheNHTSA, This isthewebsite oftheFDA, whichhasextensive whichhasextensiveThis isthewebsite of theCPSC, ONLINE RESOURCES damages willbereduced bydamages the percentage offault thatto isapportioned apportionment of liability. In pure comparative fault jurisdictions, a plaintiff's joint andseveral liability, comparative fault and negligence, orcontributory Each state ownproduct statutes, hasits liability includingstatutes that govern 20. joint Is liability and several/how apportioned, is liability See 19. calculated Howare damages andare there limitations onthem? or deliberate disregard by clear andconvincing evidence. be obtained only where theplaintiff proves thedefendant's malicious instructiondamages to thejury. can Inmost punitive cases, damages the courtapproves themotion, aplaintiff can usually includeapunitive ofthedefendant'sevidence maliceor deliberate disregard for safety. If in theinitialcomplaint, butmust file amotion showingprima facie a plaintiff isprevented from assertingaclaimfor punitive damages much greater thanfor product defect Insomestates ornegligence. although the standard for showing entitlement is damages to these for employers inaworkplace. used for themachinery Health and Safety Administration (OSHA), however, has requirements requirements directly on manufacturers. imposed The Occupational employees orworkers) have nogovernment that dictates agency safety Industrial products (mostly products inaworkplaceby used requirements. there is a government or state agency law that provides additional Product safety isgoverned by thecommon lawofproduct unless liability 21. What are themainlawsandregulations for safety? product PRODUCT SAFETY ordamages. determines orcontributed caused to thealleged injury orunavailablecompensation laws, that third ajury non-party party) example, settled defendant, employer immune from suit under workers' can only allocateseveral liability, chair to(for an empty liability ajury In many jurisdictions, particularly that those have joint abolished and of common enterprise for a total fault combined of greater than 50%. where fault its is aggregated witha co-defendant's fault with a finding faultits greater than50%ofthetotal, or, fault ifits isless than50%, a defendant isjointly andseverally hasfound liable only where ajury can only liability Inotherits extend to damages. jurisdictions, economic or unavailable. Even injurisdictions retaining joint andseveral liability, to whomthemajorportionoffault was attributable iseitherinsolvent minimally at fault to bear thefull burden ofjudgment where thetortfeasor of larger tort reform efforts. The doctrine allows a solvent defendant only Many states have orlimited jointas part abolished and several liability fault attributed to thealleged product defect. percentage isgreater for ofresponsibility thanthepercentage theinjury of the plaintiff. In other jurisdictions, a plaintiff cannot recover if his anything Question 18 Question to theproceedings? is not responsible aparty entity including where a partially circumstances? available damages andinwhatAre punitive orexemplary . Country Q&A GLOBAL GUIDE 2018 GLOBAL ). These regulations are significantly significantly are These regulations ). PRODUCT LIABILITYPRODUCT AND SAFETY see Questions 21 and 22 recalls? Are there other rules governing how a product recall rules governing recalls? other there Are be conducted?should or how companies should make decisions regarding product make or how companies should recalls corrective and other actions? criteria specified? any Are There have been many serious food recalls and the injuries can be and the injuries be can recalls food serious beenmany have There be will patterns distribution recall, the food a is there If significant. and the food (FDA), Administration and Drug the Food by analysed an appropriate implement quickly to will have and retailer distributor FDA. the to is acceptable that strategy recall and the agency to negotiate a plan that makes sense given the risks. sense given makes a plan that and the agency negotiate to mandatory there Are 24. advertising product requirementsfor necessary, are notices public of kinds what on which rules are There consumers and the ability risk to to of the company depend on future product. identify the recalled who bought of announcing the usual method with consumer products, example, For Safety Product the Consumer issued by release a press is through a recall situations, In most (CPSC)Commission in stores. up posters and then putting serious accidents where known. In some circumstances, the consumer is not to the company the CPSC want may occur, to and continue occurred have In addition, the release. and issue a second press out paid advertising take news a conference. have possibly and news video a issue CPSC release may that store, a membership warehouse through sold was the product Where and theycanmembers their by purchased were knows products what store them of the recall. informing send them an individual letter doctors to letters direct usually are medical devices, With there using the device If consumers are recall. them of the safety informing consumer the to or a letter release be a press could home, there at car manufacturers the vehicles, With motor be identified. if theycan and be recalled to owners of the cars of registered the list obtain can send them a letter. directly can Product recall Product Do23. specify regulations or rules producta when recall requiredis when concerning main agenciesregulations have three of the Each issue a safety has a duty report to seller or product a manufacturer them ( to Commission Safety Product Consumer The betweenagencies. different create can that has a defect the product on whether focuses mainly Safety Traffic Highway National The hazard. product substantial a related safety has a the vehicle on whether focuses Administration differ requirements Administration and Drug The Food defect. food. between drugs and medical devices and significantly of an appropriate and the determination requirements The reporting risk, and future based on an assessment of current are action corrective is a risk of a serious injury there is, whether that someone to or death varies of defect definition The product. the near or being product the using probabilities or unacceptable agency agency to and the acceptable from agency. in the same products with different also different of harm are to whether Therefore, and very issue is complex specific. safety Each fact corrective some other or perform the product recall to and whether report the manufacturer and it is up to is veryaction factors on many dependent https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide 41 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide for a list of US regulators. of US regulators. a list for outline their role and powers. outline their role specific regulators for particular for services? or goods regulators specific Briefly Question 21 of activity can change from year to year. to year of activity change from can the agency as to how stringent they are on issuing and enforcing enforcing and issuing on they are agencystringent the how to as change in the agencies depending on which As people regulations. the level and the Presidency, of Congress partypolitical is in charge force the manufacturer to stop selling its product and recall it. All All it. and recall selling its product stop to manufacturer the force under products for regulations theseof safety issue agencies can them differ ability and enforce to The regulations their jurisdiction. administering people the to up is generally It agency agency. to from There are also state regulators in those states that have product product have that in those states regulators also state are There of these Most agencies laws can and regulations. related safety See 22. Are there general regulators of product issues? regulators there Are safety general there 22. Are to some risk, even though that person did not buy or is not using the buy or is not person did not though that some risk, even to a consumer by harm of risk a to subjected is who bystander A product. of the CPSC. the laws by and regulations is protected product The CPSC's laws and regulations do not define the term consumer; it is term consumer; define the do not The CPSC's laws and regulations Therefore, a business working at location. who is not anyone basically if it subjects be deemed can consumers a consumer product a product test or evaluate the safety of consumer products before they are sold. sold. they are before products of consumer safety the or evaluate test manufacturers consumer product on requiring is much more Their focus a corrective and undertaking sale them after to problems safety report to fix the problem. to programme action The CPSC has a number of safety regulations that must be complied must that regulations CPSCThe safety of number has a inspect or the CPSC does generally not the FDA, unlike with. However, The NHTSA has a number of safety standards that must be complied must that standards has a number of safety The NHTSA not are these standards However, manufacturers. vehicle by with industry that more many standards are there and comprehensive requirements. safety provide product. The FDA also pays very close attention before sale to the the to sale before very pays also attention close FDA The product. food. of quality and efficacysafety of drugs and the The FDA has many safety requirements and, with some complex and, with some complex requirements safety has many The FDA of the medical and testing analysis pre-sale undertakes products, selling the start is authorised to the manufacturer devices before Highway Traffic Safety Administration (NHTSA). Boats and other products Boats and (NHTSA). Administration Safety Traffic Highway (USCG) Guard the Coast by generally governed are used on the water (FAA). Administration Aviation the Federal by governed and airplanes are Food is governed by the Food and Drug Administration (FDA) and the (FDA) Administration and Drug the Food by is governed Food Drugs and medical devices are (USDA). Agriculture of Department of all types on public vehicles driven and motor the FDA by governed National the by governed are trailers accessories as and such roads Most other products have a government agency that has some safety agency has some safety that a government have products other Most products Consumer sale. be complied with before must that requirements (CPSC). Commission Safety Product Consumer the by governed are machinery, and amending Directive 95/16/EC (recast). The machineryThe 95/16/EC machinery, (recast). Directive amending and with 2009/127/EC Directive amended by subsequently was directive machinery to pesticide application. regard for For workplace machinery, most of the product safety requirements for for requirements safety workplace machinery,For of the product most industry by issued groups standards safety from come manufacturers US manufacturers products. of such the manufacturers made up of on 2006/42/EC Directive of requirements the to attention pay also Country Q&A 42 https://uk.practicallaw.thomsonreuters.com/Browse/Home/International/ProductLiabilityandSafetyGlobalGuide42 PRODUCT LIABILITY ANDSAFETY PRODUCT LIABILITY GLOBAL GUIDE2018 The triggersare different, andthetimeframes are different ( See dangerous products obligation toreport 25. Isthere amandatory products has. safe products these must amanufacturer beandwhat duties ofsuch products;these however, itisstill mostly anopenquestion asto how printers anddrones. few,There have very been ifany, involving cases technologynew autonomous includes vehicles, internet ofthings,3-D developments andmadesuggestions asto application ofthelaw. The andscholarshave considered technologyProduct new lawyers liability 27. andsafety law? liability Are there any trends inproduct recent RECENT TRENDS ANDREFORM monthly reports specific to theriskand recall results. reports for sixquarters. The Food andDrug Administration requires The National Highway Traffic Safety Administration requires quarterly in therisk. must report indicating anincrease orinjuries any seriousincidents new require monthly reports withtheunderstanding that themanufacturer month. Ifthereturns are willclose minimal,theCPSC thefile andnot to 18months depending on thenumberofreturned products each reports for time. anunspecified They canbesubmitted for around nine The Consumer Product Safety requires monthly Commission (CPSC) 26. Is there to requirement provide a specific progress reports million againstUS$200 Takata, theairbagmanufacturer, in2015. The National Highway Traffic Safety Administration afineof levied multiple ofUS$10millionthatin excess alsoconcerned violations. multiple violations. The Food andDrug Administration levied afine leviedthe CPSC a fine of more than US$15 million that concerned limit for although fines, thelimithas recently In been raised. 2016, The Consumer Product Safety hasarelatively Commission low (CPSC) agency. and providing incomplete orinaccurate information to thegovernment manufacturers and product sellers for failing to report or for reporting There are against manyagencies examplesissued by these offines safety issues. other product hasagovernment that hasjurisdiction over agency to agovernment agency. products, Otherthanthose virtually every or commercial products inaworkplaceto used report safety issues 24Question Questions 21 Questions attracting particular interest inyour interest jurisdiction? attracting particular Arecases? there any legal or procedural that issues are Have or important any significant changes there been recent update reports? periodic expect Inpractice,doauthorities actions? corrective and/or of keep abouttheprogress updated theauthorities authorities? totheregulatory or safety issues ). There are noobligations onmanufacturers ofindustrial to to 24 . see See See 28. Are there any proposals for reform andwhenare they likely to litigation isnot really expanding. be resolved. Unlike past years, thescopeofproduct lawand liability that would changetheway willproceed inwhichsomecases and aroundcourts theUS,andthere have few been significant opinions Many individual continue cases being litigated in state and some federal and howto resolve thecases. has occurred, action andhowto determine whennoinjury damages involve any injury. Questionsaboundonthecertification oftheclass with. to deal withclassactions that donot areThe courts alsotrying aredevices theprominent are that thecourts ofcases series struggling efficiently resolve them. Cigarettes, asbestos, drugs, food and medical involving ofcases a series thesame product will andhowthecourts On thelitigation front, most ofthesignificant litigation hasinvolved and fines other civilactions should be inthe less foreseeable future. existing regulations will somewhat lessen. Therefore, the threat of regulations willsignificantly slow downandthat enforcement ofthe administrations. The likelihood isthat safety theadoption ofnew have adjusting been agencies to thechangeinpolitical The regulatory on manufacturers whosellproducts nationally. each state andtherefore state-wide these regulations aburden impose an openquestionasmanufacturers cannot selldifferent products in their ownproduct safety regulations. are Whether these legal isstill burdens,new that itcansomestates beexpected intheUSwillenact burden on manufacturers, or notat a minimum significant does impose onthemanufacturers.imposed As thefederal government lightens the products, especially for toys,andwhat limits chemicals those may be states. Most of them pertain of chemicals to allowed the types in certain states that affect the product safety of products sold individual in these There inindividual have someproposed andenacted been laws laws Question 27Question come intoforce? . Country Q&A GLOBAL GUIDE 2018 GLOBAL Defense Research Institute; Institute; Research Defense Juris Doctor degree, 2000 degree, Juris Doctor California, Minnesota, Wisconsin and and Wisconsin Minnesota, California, +1 310 525 6633 +1 310 719+1 310 1019 [email protected] www.bowmanandbrooke.com

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