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Assessing safety The PPE Directive for instance, specifically requires that the products it covers comply with the basic health and safety requirements laid down in the various clauses. This can be done by either testing against a harmonised standard or directly against the directive. For safety footwear, one such standard is EN ISO 20345: 2004 and its amendments. This covers aspects such as slip resistance, toe impact and compression, penetration resistance of the outsole assembly and also pH and chrome VI. The innocuousness requirements found within the basic health and safety requirements of the PPE Directive also mean that the presence of azo dyes and PCPs needs to be checked and the effect of any nickel components in contact with the skin assessed.

Where there is no product specific legislation, the GPSD gives a protocol to follow and this looks at elements such as: • National standards • European Commission recommendations setting guidelines on product safety assessment

• Accepted industry codes of good practice • The state of the art and technology • Reasonable consumer expectations.

For most footwear (one exception is safety footwear), formal National or European standards are limited (some technical specifications have been published by European Technical Committee CEN TC 309). Guideline recommendations first published by SATRA some 30 years ago, and reviewed regularly since, provide a sound basis for assessing the quality and safety critical aspects of footwear and are highly regarded across the footwear industry.

In certain circumstances, it may also be appropriate to use other available standards, not normally applied to footwear. For example, where footwear is intended for use by young children, then additional safety requirements may be appropriate. The most commonly used tests are those for toy safety, given in EN 71, as they take into account the natural tendency for young children to suck, chew and pull at products they are given.

EN 71-1:2005 (Amendment A4:2007) can be used to assess mechanical aspects such as attachment strength of decorative trims, for example bows and beads, which may be a choking/respiratory hazard if removed and placed in the mouth or nose. Part 2 covers flammability and may be appropriate for novelty or stuffed slippers, which could, for example, be worn by the fireside. Part 3 covers the presence of a range of heavy metals such as lead and arsenic which may be used in pigments or finishes on footwear materials, and sets safe levels to avoid health hazards if they are ingested.

Although there is no legal obligation to test infants’ footwear to EN-71, there is still an obligation to meet the GPSD. EN-71 is an ideal means of demonstrating due diligence, and a precedent has been set whereby footwear has been deemed to be unsafe due to the high risk of one or more of the hazards discussed above occurring. For example, there have been product recalls on children’s footwear with flower trims which could easily be pulled off by hand and which also failed the EN 71 attachment test.

What is ‘due diligence’? For most safety legislation that prohibits the placing of unsafe products on the market, it does not matter whether unsafe products are supplied deliberately or because an individual or company is unaware of the legal requirements. However, one recognised defence to this type of ‘strict liability’ offence is ‘due diligence’, whereby the courts may consider the extent of the efforts made by businesses to comply with the law in mitigation. Defendants will usually need to show that all reasonable steps were taken to avoid committing the offence.

What amounts to a successful due diligence defence depends on many factors – for example, the size of the business, the amount of risk and the consequences if the product fails. Appropriate testing, risk assessments, and sound documentation are key factors.

Risk assessments However, complying with a standard or guideline does not necessarily mean that a product is safe. There may be other risks associated with a particular product which the standard or guideline does not cover. A risk assessment must, therefore, be an intrinsic part of assessing a product’s safety, in addition to carrying out the ‘routine’ tests.

For instance, children’s boots with decorative pom-poms on the ends of cords attached to the front of the upper have been popular over recent Autumn/Winter seasons. The attachment strength of the pom-poms is an obvious test to be carried out, particularly in infants’ sizes where choking hazards must be considered. However, a risk assessment correctly carried out would also consider the possibility of the cords on the left and right boots getting tangled together during normal walking, or becoming entangled in, for example, bicycle chains or escalators.

Who takes responsibility? Both producers and distributors have responsibilities to ensure the products they supply comply with the Directive.

Producers are: • The manufacturer, if the goods are being made in the EU. If the manufacturer is not based in the EU, responsibility passes to the manufacturer’s European representative or the first importer into the EU

• Any company that represents itself as the manufacturer by placing its name or trademark on the product (the brand owner)

• Any person who repairs or reconditions the product for resale • Any other person in the supply chain whose activities may affect the safety of the product. This would include safety risks associated with the packaging and labelling as well as the product itself. For example, the brand owner might want to promote a hiking boot as having superior grip with a label claiming ‘Slip-Proof’. This is an over-ambitious claim which could lull the wearer into a false sense of security, since no sole can be slip proof under all underfoot conditions.

‘Distributors’ are any organisations in the supply chain whose activities do not affect the safety of the product. This would include retailers, wholesalers and agents. If they do make any alterations to the product, its packaging or any labels, which might affect its safety, then they would be considered to be the producer.

The primary duty to put only safe products on the market rests with the producer. This includes a number of specific duties. The producer should provide correct and accurate information, which will enable the user to assess the risks associated with using the product. This must include information on any precautions that need to be taken to avoid those risks. The warning ‘Not to be used by children under 36 months’ is a good example. Warning labels cannot, however be used to absolve responsibility for a product which is dangerous. You cannot, as an example, sell a shoe which has been found to have very poor slip resistance and apply a warning label to tell the wearer that they will need to take extra care. It is not safe for its intended purpose and must not be sold. It is the distributor’s responsibility to ensure that any information provided by producers about product risks is passed on to the consumer. Customers often choose to take their shoes home in a bag, leaving the box at the store. This would be a problem if any warning labels were stored in the box and not handed over to the customer. It is, therefore, the retailer’s responsibility to ensure that they are aware of the warnings and that they pass these on to the customer.


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