Novelty, decorative & ornamental giftware – post-Brexit

Note: this guidance represents the law, as we understand it, if we leave the European Union without a deal; it may be subject to change in the coming weeks.

This guidance is for England, Scotland & Wales

By law, all goods sold to the public must be safe. A product is assessed on its safety, which includes taking into account the packaging, instructions and other labelling, the effect of the product on other products, and the special needs of certain groups of people - children, for example.

Although the first UK supplier has the primary responsibility for the safety of products sold to consumers, retailers can also be held liable for unsafe products. And some items have specific problems to watch out for - for example, models and ornaments that resemble toys, and ornamental candles and oil lamps.

Product safety

Goods sold to the public should not present any unnecessary risk to anyone during normal or reasonably foreseeable use. If you sell goods that are found to be unsafe, you risk a substantial claim for compensation, as well as being prosecuted for a criminal offence.

How does the law define a safe product?

A safe product is one that does not present any unnecessary risk to anyone when the product is used in a normal or reasonably foreseeable way. In assessing the safety of products, account is taken of (among other things):

• the packaging, all accompanying instructions and any other labelling
• the effect of the product on other products with which it may be foreseeably used
• the special needs of particular classes of person, especially children

If there is a British or European / international standard relating to the product, the standard will be taken into account in deciding whether the product is safe.

What are my responsibilities as a retailer?

The first UK supplier has the primary responsibility for the safety of products sold to consumers but retailers can also be held liable for unsafe products. If a product is found to be unsafe, or if it causes property damage or personal injury, you will be held solely liable if you cannot identify who supplied the goods to you. It is therefore in your interest to keep full records that will enable you to identify the supplier for each product you sell.

Please tell your local trading standards service if you are offered goods that you think may be unsafe.

You should make sure that all items you have for sale have the necessary instructions for safe assembly, use and maintenance. In particular, new novelty items usually require some appropriate instructions. You should remember that it might not be adequate simply to give verbal instructions or demonstrate the product to the buyer. They may wish to give it to someone else, or they may need to refer to instructions in the future. You must pass on all user instructions included with the product.

Do some items have particular problems to watch out for?

Yes, they do. Broadly, these are as follows.

Non-functional reproductions

Items such as ornamental items that cannot be used safely - for example, unlined reproduction brass, pewter or copper containers embossed with 'milk' or 'tea', and fancy teapots, jugs and plates. All these should be clearly and permanently marked 'Not for food use'.

Collectors' items, models & ornaments resembling toys

Items that may be particularly hazardous to children. You should note that you are required to take special care for the safety of children. All genuine collectors' dolls or models such as toy soldiers should be clearly labelled 'This is not a toy'. To avoid confusion, such items should be displayed separately from genuine children's goods.

Ornamental candles, oil lamps & fragrant aromatherapy oil heaters

Candles and oil heaters will usually require an accompanying warning that they should never be left unattended whilst burning. Candles should comply with European Standard BS EN 15494: Candles. Product safety labels and be labelled as such.

Consideration also needs to be given to the substance that gives the candle its fragrance; it may be a substance that is classified under EU Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures, in which case the candle will require labelling in accordance with the requirements of this Regulation. In addition, candles are considered as articles that intentionally release a substance during use under EU Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH).

Decorative oil lamps for supply to the general public must not be supplied unless they conform to European Standard BS EN 14059: Decorative oil lamps. Safety requirements and test methods. Fuels for decorative oil lamps that contain a colouring agent or perfume, present an aspiration hazard and are harmful if swallowed are prohibited. Lamp oil fuel must be packaged in black opaque containers not exceeding one litre and must be visibly, legibly and indelibly marked as follows:

• 'Keep lamps filled with this liquid out of the reach of children'
• 'Just a sip of lamp oil - or even sucking the wick of lamps - may lead to life-threatening lung damage'

If a fragrant aromatherapy oil heater needs water and only a little oil to be used, or if a specific heat source is required (such as a night light or tealight candle) written instructions to this effect are needed. Oils may require specific warnings (for example, if they cannot be used on human skin).

Key rings & other products containing lasers

Lasers that are too strong can severely damage sight. Do not sell such products to children and do not sell any product with a laser stronger than category 1. Note that key rings that are attached to, for example, a small soft toy are classed as toys and must bear the UKCA mark and the name and address of the manufacturer / importer.

There will inevitably be a crossover period when the CE mark is still in use and the Government will consult with industry over how long this period will last. For guidance on CE and UKCA marking after Brexit see the GOV.UK website.

Further information

See the guidance notes issued by the Department for Business, Energy and Industrial Strategy (BEIS, which was known as the Department of Trade and Industry at the time) entitled: The General Product Safety Regulations 2005: Guidance for Businesses, Consumers and Enforcement Authorities (follow the link through to the UK Government Web Archive).

Products that resemble food also pose a potential hazard; please refer to the 'Food imitations' guide.

Penalties

Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment. For more information please see 'Trading standards: powers, enforcement & penalties'.