(July 28, 2011) On July 20, 2011, Directive 2009/48/EC on the Safety of Toys, which repeals Directive 88/368/EEC on toy safety rules, entered into force in the European Union. (Directive 2009/48/EC of the European Parliament and of the Council of 18 June 2009 on the Safety of Toys, OFFICIAL JOURNAL OF THE EUROPEAN UNION (L 170) 1 (June 30 2009), EUR-LEX.EUROPA.EU.) EU Members have had a two-year period to harmonize their domestic rules with the new Directive.
The Directive defines toys as “products designed or intended, whether or not exclusively, for use in play by children under 14 years of age.” (Id.) The following toys are excluded from this definition: playground equipment for public use, toy vehicles equipped with combustion engines, toy steam engines, automatic playing machines intended for public use, and slings and catapults.
The Directive applies to all toys that fall within the above definition, whether they are new or used and whether they are sold or given away. Toys placed on the market within the EU and the European Economic Area (Iceland, Liechtenstein, and Norway) must meet the general safety requirement that they “shall not jeopardise the safety or health of users or third parties when they are used as intended or in a foreseeable way, bearing in mind the behaviour of children.” (Id.) Toys must also meet the essential safety requirements contained in Annex II of the Directive. (Id.)
Manufacturers are obliged to ensure that toys placed on the market are designed and manufactured according to requirements established by the Directive. Thus, prior to market placement of new toys, manufacturers are required to carry out safety assessment procedures and conduct an assessment of the toys' conformity to Directive requirements in order to ensure that the toys meet the general safety requirement cited above.
Manufacturers also must take the following measures:
prepare a declaration of conformity with EU standards and affix the CE (Conformité Européenne, or European Conformity) mark on toys in a visible and legible manner. The CE mark creates the presumption that toys bearing this logo comply with the rules on safety as provided by the 2009/48 Directive;
ensure that toys bear a type, batch, serial, or model number;
keep records containing certain information about the toy product for a period of ten years, carry out sample testing of the product, and maintain a list of complaints about it; and
take corrective action, including recall, when toys do not conform to the criteria established by the Directive. (Id.)
EU Members must establish bodies that will be authorized to carry out third-party conformity assessment tasks and notify the European Commission and the other EU Members of such designated bodies. They are also required to conduct surveillance of toys placed in the market. When these market surveillance authorities establish that a particular toy presents risks to the health or safety of consumers, they must carry out an evaluation of its conformity with requirements established by the Directive. If it is found that the toy falls short of meeting such criteria, then the market surveillance authorities must oblige the manufacturer to take action to make the toy conform with the Directive's requirements to withdraw it from the market, or to recall it within a reasonable time period. (Id.)