New mandatory reporting requirements to be introduced for consumer products and services, reports Thomsons franchise lawyers

Franchise lawyers from Thomsons Lawyers have noted that a new mandatory reporting system will be introduced by the Trade Practices Amendment Act 2010, specifically pertaining to suppliers of consumer goods and product related services.

The reporting system takes effect from 1st January, 2011, the franchise lawyers report, and requires suppliers to give notice of any deaths, serious injuries or illnesses related to consumer goods in certain circumstances.

The definition of consumer goods under the Act details “goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption”.

Product related services cover any services that relate to the supply of consumer goods, and include services for, or relating to the:

• installation
• maintenance
• repair
• cleaning
• assembly; or
• delivery of consumer goods.

The draft of the Act cites examples such as a serious burn, deep cut, broken bone, choking, internal bleeding and poisoning.

A supplier of consumer goods, or product related services relating to consumer goods, is obligated to give notice when they become aware (from any source, including a consumer) of the death, serious injury or illness of a person and the supplier either:

• considers that the death, serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods; or
• becomes aware that another person considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods.

In addition, the supplier’s obligation to give notice arises in the circumstances referred to above regardless of whether they supplied the goods themselves, or whether they supplied product related services with respect to those goods.

The obligation also continues even if another supplier has already given notice.

Notice is not required to be given when the supplier or another person is required to notify the death, serious injury or illness pursuant to other laws or an industry code of practice specified in the regulations to the Act.

The supplier must provide written notice within two days to the Commonwealth Minister in situations where it is required. Notice may also be given by submitting an ACCC form online. This form will be made available via their website.

The Act details the information that needs to be included in a notice, which includes:

• the details of the consumer goods and/or product related services involved
• the circumstances of the death, serious injury or illness
• the nature of the serious injury or illness; and
• any action the supplier has taken or intends to take in respect of the consumer goods or product related services.

Unless the supplier consents to disclosure, a notice given under the Act will be treated confidentially, subject to particular exceptions.

Exceptions to the suppliers right to confidentiality include:

• disclosure which is considered by the Minister to be in the public interest
• disclosure which is authorised by law or reasonably necessary for the enforcement of the criminal law; and
• disclosure to another responsible Minister or the regulator.

To minimise the risk of such penalties being incurred, Thomsons franchise lawyers state that suppliers of consumer goods and product related services should ensure that they have systems in place, including trained staff, to expeditiously:

• record any reports of death, serious injury or illness associated with consumer goods supplied by them or to which their product related services relate; and
• refer such reports to a manager or other appropriate person for a determination to be made as to whether notification to the Minister is required under the Act.