JOINT COMMITTEE ON EUROPEAN SCRUTINY díospóireacht -
Tuesday, 13 May 2008

Toy Safety Directive: Discussion.

Chairman

On behalf of the joint committee, I welcome the representatives who have been invited to discuss the proposed directive on the safety of toys. They are: from the Department of Enterprise, Trade and Employment, Ms Helen Curley, principal officer, standards and North-South unit; Mr. Michael Davitt, assistant principal officer, NSAI liaison and standards section; from the National Consumer Agency, Mr. John Shine, director of commercial practices, and Ms Catherine Lenihan, assistant director; and from Smyths Toys Limited, Mr. Liam Smyth, director, and Mr. Clive Shelton, toy safety consultant.

Before we begin, I draw attention to the fact that while members of the committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

Ms Helen Curley

The purpose of the proposal for a new toy safety directive is to revise Directive 88/378/EEC which was adopted to harmonise the safety levels of toys and eliminate technical barriers to trade between member states in order to assist in the achievement of the internal market. The European toys and games market is valued at €4.7 billion for manufacturers and €17.3 billion for retailers. There are over 2,000 manufacturers in the toy sector, employing over 53,000 people directly and a further 45,000 indirectly. Most are small and medium-sized enterprises.

While the existing directive has been successful in achieving its objectives, new issues have emerged in respect of the safety of toys. In 2003 the European Commission's expert working group commenced consideration of the existing directive with a view to revision of the legal framework. During 2007 the Commission launched a public consultation process, during which it received more than 1,500 responses. It also commissioned three independent studies, two of which focused specifically on the chemical properties of toys. Three areas were identified by those consulted in which it was considered that the current directive had not achieved its objectives. These were the definition of toys and their labelling; the adequacy of the essential safety requirements; and the enforcement of the directive. Following an impact assessment, a revision of the directive was identified as the preferred option because it seemed adequate and proportionate to cope with the identified problems without requiring a fundamental change to a system that had proved workable. Consequently, the Commission brought forward the current proposal on 25 January this year.

The proposed directive has two principal objectives: to enhance the framework governing the safety of toys and to strengthen the functioning of the internal market. It is important to note that Ireland does not generally manufacture toys, nor is it generally a country of first origin for imported toys. The draft directive clarifies the scope and concepts by clearly defining what is and what is not a toy. Annex 1 sets out a list of products that are not considered to be toys for the purposes of the directive. In addition, the safety requirements have been considerably enhanced to take account of recently identified hazards. For example, in order to address the risk of choking, the existing requirements have been extended to children over 36 months for all products intended to be placed in the mouth. Toys contained within food or commingled with food must have their own packaging. Additionally, all toys, access to which requires the prior consumption of food, will be banned. The measure to address the risk of suffocation has been strengthened to cover obstruction of the internal airway.

In the light of the independent studies commissioned last year and on the advice of the European Commission's scientific committees, the chemical requirements have been significantly strengthened. For example, it is now proposed to implement a total ban on all CMR substances, that is, carcinogenic, mutagenic and toxic to reproduction — categories 1, 2 and 3 — in all accessible parts of a toy unless authorised by a comitology procedure. The proposal has also been aligned with the cosmetics directive and includes a list of allergenic fragrances that are to be banned or that will require labelling.

Provisions to allow more efficient and coherent enforcement of the directive have been considerably strengthened. For example, a manufacturer will now have to carry out a safety assessment — essentially, an analysis of the hazards of a product — and keep it available for market surveillance purposes. Manufacturers will also have to provide any information on chemicals present in the product and make this available to the relevant authorities. New requirements also provide for a strengthening of the traceability of a particular product. Furthermore, the CE mark must now be visible at the point of sale.

The powers vested in market surveillance authorities contained in the general product safety directive such as the right to enter a manufacturer's premises and the right to access information from other competent authorities are reinforced. Their activities are expected to be assisted by improved access to information on technical files to be maintained by manufacturers. Measures aimed at increasing co-operation between member states' market surveillance authorities and the Commission, other market surveillance authorities and customs authorities will provide a much more coherent and co-ordinated approach to enforcement. More effective enforcement should also reduce the number of counterfeit toys placed on the market.

The proposed toy safety directive will affect all economic operators, competent authorities and consumers. Manufacturers are expected to incur increased costs as a result of the enhanced safety requirements and testing, labelling and assessment obligations that will arise. Additional factors will influence the scale of these costs, including the type of product, the volume produced and the number of production lines. New obligations for importers and distributors are also envisaged in the proposal.

Consumers are set to reap the main benefits of the revision of the toy safety directive through a reduction of the risk of toy related accidents. However, they will eventually bear the burden of any additional costs to economic operators of the proposed directive as they are passed on by the industry. It is important, therefore, not to burden the industry with disproportionate demands that could have a negative financial impact effect on consumers generally.

The negotiations at the Council working group are still at an early stage and the Department is engaged in a consultation process with the relevant stakeholders. We are working closely with the National Consumer Agency and recently engaged at its toy safety seminar. This brought together various stakeholders and afforded an opportunity to outline the legislative and administrative provisions applicable to the sector and the changes contemplated by the draft directive. The Department is generally supportive of the directive but the outcome of consultation with stakeholders will inform positions on the specific provisions. We are particularly supportive of the measures to enhance the existing safety requirements for toys. We also welcome the strengthened role given to market surveillance authorities and view this, together with the enhanced safety requirements, as the key tool for protecting children from unsafe toys.

Mr. John Shine

The National Consumer Agency has responsibility for market surveillance in respect of the safety of products which come within the scope of several European directives. These include the low voltage directive, personal protective equipment directive, gas burning appliances directive, general product safety directive and toy safety directive.

The main aims of the draft toy safety directive are to enhance the safety of toys to cope with recently identified hazards regarding, in particular, chemicals in toys, choking hazards and toys associated with food, and to provide for more efficient and effective enforcement by member states. The draft directive also proposes to make the CE marque more visible and easily recognisable and seeks to clarify the scope of the toy directive and the relationship between it and the general product safety directive.

Additional safety requirements are envisaged in several areas. The directive proposes a ban on toys and components accessible to children which contain CMR — carcinogenic, mutagenic or toxic to reproduction — substances. Allergic substances will also be banned. The directive strengthens the strict requirements relating to extending the provisions beyond the 36-month limit in respect of toys that can be put in the mouth.

It is proposed to extend the existing requirements on preventing the risk of small parts being inhaled by children. The existing 36-month age limit is extended but only in respect of items intended to be placed in the mouth. The directive also includes proposals to prevent choking as a result of the association of toys and food items. Toys that require the prior consumption of food in order to access the product will be prohibited. Toys will also have to be packed separately from food and the package must not present a choking hazard.

The current directive requires that toys must be accompanied by appropriate warnings in order to reduce inherent risks associated with their use. The new proposals envisage complementing the existing obligations by requiring the specification, where appropriate, of user limitations such as minimum or maximum weight, age limits and need for adult supervision. Warnings at point of sale specifying minimum and maximum age limits for users are also envisaged. A clearer and more specific requirement relating to the CE marque will facilitate the work of market surveillance authorities. The CE marque must be affixed to the packaging if the marking on the toy itself is not clearly visible.

The draft directive proposes stricter obligations on member states and increased monitoring by the European Commission of the market surveillance and enforcement activity carried out throughout the European Union. Market surveillance authorities must have the necessary resources and powers at their disposal for surveillance activities. The authorities will be required to ensure market operators are meeting their obligations that only safe products are placed on the market, that any problems identified are appropriately addressed and that sanctions are applied when necessary.

To assist member states in carrying out market surveillance, the draft directive provides for increased enforcement powers for market surveillance authorities such as the right to request information from notified bodies, give instructions to those bodies and obtain mutual assistance from member states.

The technical file data which must be made available to market surveillance bodies on request will be expanded to include information on materials used in toys. This will be in addition to the information on the description and design of the toy. Proposed new obligations relating to the need for an analysis of the hazard associated with the toy must also be included as part of the technical file. This will enable market surveillance authorities to adopt a more systematic approach based on the available analysis.

The National Consumer Agency and its predecessor, the Office of the Director of Consumer Affairs, has acted as the market surveillance body for toy safety since 1990. During the years the focus on toy safety has shifted from the physical risks such as sharp edges to those associated with the composition of the toy; for example, lead content and possible carcinogenic substances. The agency welcomes the changes proposed in the draft toy directive. It considers that the focus in the directive on safety requirements and more efficient and stricter enforcement measures by member states will help to bring about better protection for children by foreseeing and reducing possible risks.

The agency welcomes these proposals from a market surveillance perspective. It takes its market surveillance role seriously but regardless of its commitment, it cannot, having regard to resource constraints, monitor and police the safety of all consumer products being placed on the Irish market. It welcomes the proposed requirement to place the primary responsibility for toy safety on the economic operators rather than the market surveillance authorities. This obligation will apply to all operators from manufacturing to retail level and ensure those who are best placed to assess the safety of a toy have the responsibility for ensuring the product is safe. As part of this obligation, operators must continue to update and monitor toy safety in the light of changing circumstances. For example, if they become aware of a potential hazard in respect of a toy already placed on the market, they must take appropriate steps to protect the user, up to and including possible recall of the item.

This concept of placing the primary onus for product safety on the economic operators was introduced in the general product safety directive and has proved very effective. This is evidenced by the increasing number of voluntary measures notified to the European Commission via the rapid alert system known as RAPEX. Over 50% of the 1,600 notifications of recalls or remedial actions made during 2007 were notified as a result of actions initiated by economic operators. Toys were top of the RAPEX list, with over 400 notifications in 2007.

Another initiative which will help to make market surveillance more effective is the requirement that the manufacturer provide traceability details. This information will include the name of the manufacturer, registered trade name and a single contact point. Other economic operators are required to ensure the required conformity markings, type or batch serial numbers, together with the manufacturer's contact details, are provided. As traceability issues have presented a major challenge for market surveillance authorities to date, the new requirements will be of major benefit.

On co-operation with customs, apart from obligations on manufacturers, the ability to stop imported products at point of entry is the next single most effective way of ensuring hazardous toys do not reach the market. The agency has built a close relationship with the customs authorities. At the request of the agency, customs has provided lists of operators importing toys directly into Ireland from third countries. This has enabled the agency to contact these importers to ensure they are complying with their obligations on toy safety. It is intended to build on this relationship in future market surveillance activities.

The requirement relating to co-operation between member states and between member states and the European Commission will copperfasten structures already in place. Member states participate in administration co-operation groups, referred to as ADCO, where representatives meet to discuss issues of mutual concern such as best practice and joint approaches towards market surveillance. Although the informal co-operation arrangement is working satisfactorily, the proposal to place it on a legal footing will ensure all member states will become involved. Ireland participates in the ADCO groups and has taken part in joint enforcement projects connected with child safety. When the new directive takes effect, it is envisaged that the agency will work closely with other member states and the European Commission in carrying out targeted joint enforcement actions. It is envisaged that joint targeted enforcement will be one of the major avenues, whereby member states will meet the stricter demands on enforcement required under the new directive. Proposals for greater co-operation between member states will also be of benefit to the agency in the context of access to specialist expertise. It is envisaged that the co-operation requirements under the new directive will enable the agency to call on expertise available in other member states for initial product assessment views. Close co-operation with member states is seen by the agency as an essential tool in effective market surveillance on toy safety.

Apart from market surveillance activity, the agency has an advocacy and information role in consumer issues, including toy safety. It will continue to use its position to highlight any issues arising. Through its business and consumer websites, it provides details of any unsafe products, including information on recalls. It also provides tips and advice on toy safety and has published a consumer booklet on the latter. It recently held a seminar for key stakeholders to advise them of their obligations regarding toy safety and provide a briefing on the proposed changes envisaged under the new toy directive.

The agency will continue to work closely with the Department of Enterprise, Trade and Employment in monitoring the progress of the draft directive and fully assessing the resulting consequences, including possible resource implications arising from increased market surveillance or enforcement activities. It is committed to playing its part in enforcing the requirements of the directive and will work closely with its counterparts in other member states and the European Commission in undertaking joint market surveillance initiatives and using best practice to maximise toy safety protection.

Mr. Liam Smyth

I thank the committee for inviting us to make this presentation on the new directive on the safety of toys. I am a director of Smyths Toys, a company which has been involved in the retailing of toys for over 20 years. I am accompanied by Mr. Clive Shelton who has been our adviser on toy safety for the past five years. He is an acknowledged expert on toy safety, having worked as a public analyst for 20 years, and as one of the United Kingdom's representatives on the CEN toy safety committee which drafts the EN 71 toy safety standards for the European Union. He also advises the UK Government on toy safety issues.

It is in Smyths Toys interests that toy safety standards are of the highest level and that consumers have confidence in the toys they purchase for their children. The existing EU directive has served the public well regarding the safety of toys on sale in Ireland. The key point in the proposed new directive is that someone will be answerable to the consumer under EU law, regardless of where a toy is manufactured. Anyone placing a toy on the EU market will be covered by this law.

The products we sell can be divided into two categories. First, there are the toys we purchase from the major manufacturers such as Hasbro and Mattel. In this instance, it is they who are primarily responsible for placing them on the EU market and ensuring their compliance with the EU toy safety directive. Second, there are the toys we import directly into Europe. In this instance, the onus is on Smyths Toys to ensure the products comply with the directive and Ireland's implementing law.

The basic thrust of the new directive is similar to that of the existing one. We welcome the new directive in that it will provide a level playing field for all, with clear and unambiguous rules. It will also encourage the free movement of goods. In particular, we welcome the joined-up approach in the directive to bring together sourcing, manufacture, use in the home, what to do when things go wrong and the recall of products. Where the new directive differs from the existing one is that we will not be able to rely solely on final product testing. Instead, we will need to know more about the composition of the raw materials used in the toys. This will add greatly to the administrative burden on all involved in the toy trade. However, this is the price we must all pay to ensure the highest standard of toy safety.

We must be given time to educate our suppliers and allow them to adapt to the new regulations and also to allow us to adapt our own systems in order that we might meet the greater administrative requirements set down under the new directive. We request that the Government not transpose the new directive into law before it is implemented in other major European countries.

There are some issues of detail in the directive, none of which we oppose in principle. However, we are concerned that the legal requirements be practical. These are set out in more detail in our written presentation which was circulated to members in advance of the meeting. If members have any questions, Mr. Shelton or I will answer them. We ask the committee to give due consideration to the points we have raised. I thank the Chairman and members for the opportunity to make this presentation.

Chairman

I thank Mr. Smyth. All of the initial presentations were concise.

I wish to put a question to the officials of the Department in respect of the stacked up costs. I come from a retail background. It was stated the European toys and games market was valued at €4.7 billion for manufacturers and €17.3 billion for retailers. Is that correct?

Ms Helen Curley

Yes.

Chairman

The mark-up is €4.7 billion for manufacturers and €17.3 billion for retailers. You indicate that a stacked up charge might be passed on to the consumer in light of the directive. Could that charge not be built into the current profit margin, which is considerable? A margin of €17.3 billion is quite excessive. Perhaps Mr. Smyth might address this issue.

Mr. Liam Smyth

The €4.7 billion might refer to products manufactured within the EU. The bulk of toys sold in the EU are produced outside the EU. That may be where the discrepancy is. I am not sure about that.

Chairman

We might check the figure of €4.7 billion for manufacturers and €17.3 billion for retailers. Do those figures apply totally within Europe?

Mr. Liam Smyth

That is not the margin on toys.

Chairman

I think we should have clarification on that. Toy retailers are making the point that the cost of the directive will be passed on to consumers. That is why I seek clarification on that figure.

Ms Helen Curley

I understand the figure for retailers also encompasses toys imported from outside the EU. It is a market figure.

Chairman

The €4.7 billion is the figure for the European manufacturing base. Does it include Asia?

Ms Helen Curley

That is my understanding. I will double check the figure.

Chairman

It also includes sales from China.

What provisions will be made to enable the National Consumer Agency to improve the enforcement of toy safety regulations in Ireland?

Ms Helen Curley

As my colleague from the NCA mentioned in his presentation, the directive foresees increased co-operation between market surveillance authorities, such as customs and the Commission. It would provide for joint action between those authorities. The primary responsibility for the implementation of the directive rests with the economic operator who places the toys on the market. Resource implications for the National Consumer Agency from the implementation of the directive will be monitored by the Department in consultation with the NCA as the proposals develop.

Senator Terry Leyden

I welcome the officials of the Department of Enterprise, Trade and Employment and representatives of the National Consumer Agency and Smyths Toys Limited. This is an important directive because nothing is more important than the protection of our children. For too long, products have been imported into the European Union and Ireland which had a very high lead content and were extremely dangerous. It is disturbing to think that 118,300 toys were recalled between 2002 and 2007 and that between November 2006 and October 2007 Mattel, the American toy company, recalled 22,000 toys which had a high lead content. Did the National Consumer Agency, Smyths Toys or anyone else detect the presence of this lead or did we rely on Mattel to withdraw the products?

To what extent does the NCA supervise direct imports from outside the European Union, particularly from China, which is a large producer of low-cost and possibly low-quality toys? Such toys are distributed through smaller outlets, not the big stores supplied by Smyths Toys Limited and other major importers. Does the agency supervise these smaller outlets which sell cheap products which are attractive to parents who find it difficult to fill the Christmas stocking or buy presents for birthdays and other occasions? Safety is our main concern, which is why the directive is very important. We might criticise the European Union for interfering in certain issues, but in this regard, we are fortunate that it is issuing a directive to ensure the safety of toys. Does the agency have a role in the protection of children from harmful toys?

Mr. John Shine

Senator Leyden raised the issue of the recall of toys for various reasons last year. The primary responsibility rests with the economic operators, whether manufacturers, importers, distributors, retailers and so on. The RAPEX system, the EU rapid alert system for processing recalls, indicates that the trade is adopting a very responsible approach. It will assess, on a risk basis, the action that is necessary. For example, Mattel adopted a precautionary approach and, at considerable cost, initiated a series of product recalls. While we would all like to see few product recalls, inevitably issues will be identified. What we have seen demonstrates that the toy industry is adopting a very responsible approach. In relation to the RAPEX system, the Commission has published its annual report for 2007 which indicates that the number of product recalls across the board, not limited to toy safety only, is increasing. In 2007 there were 1,605 product recalls, a 50% increase on the figure for the previous year which had also increased from the figure for 2005. This shows that the industry is adopting a very responsible approach to product safety, in recognition of the fact that, ultimately, responsibility and liability rest with it.

The National Consumer Agency plays a role in processing all notifications from the European Union and, in turn, we notify them to the system. In 2007 we notified 30 notifications to the RAPEX system but would have had to process all RAPEX notifications. We identify if a notification is relevant to the Irish market and, if so, engage with our large list of contacts to get the message out. We also issue press releases, place notifications on our website and ensure we are satisfied with the nature of the recall or the nature of the action that might be taken. A recall in not necessary in all cases. Depending on the risk identified, it may involve putting up a notice in a store or it could go as far as initiating a significant recall exercise.

In summary, the RAPEX system is working well. The Commission undertook a stocktaking exercise last year on the issue of product safety and was satisfied that the system for recalls was working well.

Senator Leyden raised a second issue, the direct import of goods from third countries. While the majority of toys on sale in Ireland come from elsewhere in the European Union, there is a certain quantity of product imported directly from third countries. We have been engaging with the customs authorities to identify operators which import toys directly into Ireland from such countries. We identified 73 last autumn. We have been in communication with them and many of them attended a seminar we recently held. We are focused on ensuring they are aware of their obligations as operators. We are satisfied we have a good level of engagement with them and we will continue to develop that as time goes on.

Senator Terry Leyden

Does the National Consumer Agency carry out on-the-spot inspections on stores? Such items are very attractive to buy and, although people are under economic pressure at the moment, they could still be tempted to buy cheap products from small stores around the country that could put their children at risk. We have to ensure Mr. Shine's office protects the public.

Mr. John Shine

We take a risk-based approach to on-site activity and carry out market surveillance on stores. In recent years we have been involved in a number of activities in that regard and will continue to do so. We primarily carry out risk-based EU-wide activities as a lot of work is carried out across the EU. One of the most significant ways of addressing the problem is to focus on the factory floor in China rather than the shop floor in Ireland, or anywhere else in the EU. The Commission makes great efforts to engage with the Chinese to ensure they raise their standards.

Chairman

Is that task not very difficult? I have been in China and I have seen how they operate. Senator Leyden made the point that market traders deal in a huge amount of imported toys which have little or no identification. The 36-month limit causes serious problems for determining the minimum age for a particular product. Smyths Toys is a reputable company but many toys coming into the country are unbranded and that is a huge issue. The onus is on smaller retailers to provide information in their stores to identify safety issues. In those smaller outlets there is very little to put somebody off buying a product, but there is plenty of encouragement for them to buy, often involving significant price discounts. Given the proliferation there has been in street trading, what controls has the National Consumer Agency put in place?

Mr. John Shine

We carry out market surveillance activity. However, the primary instrument involves addressing the issue at factory floor level in China or elsewhere. The next step is to stop a product coming into the country and that is where our engagement with customs authorities comes into play. If we identify shipments of the products in question from third countries we engage with the customs authorities and co-operate with them to stop the shipments.

The other element of the approach involves engaging with traders to ensure they are aware of their obligations and educating members of the public as to the actions they should take. In that regard we produced a toy safety booklet last year which gave general advice to consumers, particularly parents, who have a role to play in ensuring they look for the CE marque and only buy age-appropriate toys, as well as taking other basic precautions.

Chairman

Have guidelines been sent to pre-schools? This is an important directive. Has the National Consumer Agency issued, for example, large notices telling parents what they should look out for?

Mr. John Shine

No, but we have widely distributed the leaflets and have ordered a second reprint. We will try to encourage as wide a distribution as possible through various channels.

Chairman

I have seen very little of the leaflets and I am a retailer.

Deputy Seán Connick

I welcome the representatives from the Department and the National Consumer Agency. I also welcome the directive, which is very important and timely. Perhaps Smyths could provide some information as to whether toys are sourced outside of the EU by companies within it and then rebadged.

I am delighted the RAPEX system seems to be working. Like my colleague, Senator Leyden, I was surprised that the number of toys recalled in Ireland was so high at 118,000. I am also slightly alarmed that the increase in the number of toys being recalled has been of the order of 50% year on year for the past couple of years. Are there any statistics available as to the number of children who have been injured? I am also delighted to learn that Smyths has its own safety expert. It is interesting that he advises the UK market as well as the Irish market. Where does Smyths source the information on which it bases its decisions regarding toys?

What is the definition of a toy? I ask that because I am trying to figure out what constitutes an injury? The use of products such as PlayStation can result in repetitive strain injury and sore thumbs. Older teenagers use go-karts and one sometimes sees them on main roads. Are they classed as toys? Are they being reviewed under this regulation? The same applies to trampolines which now cause many injuries. It should be compulsory to use a safety mesh on them. What constitutes a child under this directive. What age group are we talking about, given that quad bikes or junior motor cycles, which are really adult toys, are being marketed in the junior market?

I accept that safety is paramount. From the retailer's perspective, how does Smyths see the market improving the situation? Does it believe the industry is over-regulated or could more streamlined systems be put in place to deal with these issues?

Mr. Liam Smyth

I will take those questions and Mr. Shelton will pick up on anything I miss out on. In regard to trampolines, we sell only trampolines with enclosures and have been doing so for several years. If a product is brought in from outside the EU the onus is on us to ensure it is safe. We do that by ensuring there is a safety certificate for all those products. Regarding the definition of toys, this has been a grey area, given the examples the Deputy mentioned. The new directive will expand the definition of what constitutes a toy.

Mr. Clive Shelton

Deputy Connick asked a couple of questions that were directed to me. In particular he asked where I get my information from. I am involved in the toy safety world which is now an industry of itself. A huge amount of money is spent world-wide testing products whether in laboratories or in factories. I once had a laboratory but I no longer do. However, I am involved in the CEN standards. The safety of toys is assured by the directive. The directive is supported by European harmonised standards and they run to several hundred pages. The rules and the detail of how one tests a product and what it should comply with are made by CEN, the European standards organisation. That is principally where my information comes from, because I am on the toy safety committee. There is also an international committee that covers toy safety globally. That would include the USA requirements, and US representatives sit in the same committee too.

Deputy Connick asked a question regarding injury data, which is very important. To assess hazard and risk on toys one needs to know the injury data. There is an issue for the new directive which will require toy companies to do their own assessment, namely, that data is not collected on injuries caused by toys. The data used to be collected in the UK, but that is no longer the case. Apart from the United States, I am unsure as to where injury data is collected worldwide. The toy industry and many other industries believe they need that data.

The new directive is several years off, but the change in the definition of toys is intended to remove ambiguities and differences in interpretation across Europe. It is a harmonisation and free market measure. For example, is a school satchel or a fridge magnet a toy? A quad bike is not a toy, nor is a Nintendo Wii because its voltage is too high. The safety of these products is covered by other directives. The toys directive is aimed at controlling the safety of products that children play with in their hands, namely, traditional toys like board games, balls, bats, etc. Other rules apply to more complicated matters, including trampolines. The toy standards apply to small toy trampolines and we are trying to include trampolines in the toy standards regime, but the main rules apply to those products one might find in a Christmas stocking, for example.

Chairman

The directive defines toys as products or materials intended for the use in play of children of less than 14 years of age.

Mr. Clive Shelton

Yes, that has been the definition since 1988. The new definition refers to products for use in play, whether exclusively by children.

Chairman

It is a considerable remit.

Mr. Clive Shelton

The important aspect is intention and play. If one sells a pencil, it is not a toy because it is not intended for play. If one sells a packet of pencils for colouring in, they constitute a toy. For this reason, there will be——

Chairman

That is the interpretation.

Mr. Clive Shelton

The interpretation has been difficult, a situation with which the new directive will assist.

Chairman

Some 118,000 toys were recalled. Of 2 million toys, that is a high percentage and equates to approximately 2,000 toys per month in that period.

Mr. Clive Shelton

I am not here to speak for Mattel.

Chairman

Not all of them were Mattel products.

Mr. Liam Smyth

It may be that, while 118,000 toys were recalled, only seven or eight toys were affected. Most recalls related to magnets in toys, an unforeseen issue.

Mr. Clive Shelton

The majority of last year's Mattel recalls were due to a new and unanticipated risk, namely, children swallowing small, powerful magnets. Mr. Smyth's point is important in that the number is that of the total number of items, not the total number of different toys.

Chairman

I appreciate that, but is there a breakdown of the category of toys?

Deputy Seán Connick

I am surprised that figures on the number of children injured have not been collected. Will the National Consumer Agency address this point? Why are there no figures?

Mr. John Shine

In the mid to late 1990s, the European Commission provided funding for the EU's health systems to gather and record injury information. However, this funding dried up. We would be interested in seeing injury statistics, but the information is not being recorded in hospitals.

Deputy Seán Connick

Perhaps there should be an EU directive in this respect. I am concerned that this is the case across Europe.

Chairman

It is extraordinary that the information is not being recorded.

Deputy Aengus Ó Snodaigh

There were 1,600 notifications or recalls, which I presume refers to 1,600 different products. Is that an indication of a greater impact from RAPEX and improved standards or is it because these 1,600 products are getting through the system and are only being discovered afterwards? I note from the background information that concerns have been raised about the delay in passing products. Are products being passed too quickly, with the result that problems are discovered afterwards which put children at risk?

The directive proposes to grant exemptions on the prohibition of CMR substances in certain cases. I find that difficult to accept, given that these are carcinogenic. I understand the position taken by the representatives of Smyths Toys, who stated that if there is no access to a material, there can be no exposure or risk. However, even if a child cannot access an internal component of a toy, surely we should be ensuring that all its components are safe. Toys can break and children can get their hands on internal components. The example was given of flame retardant material inside a battery-operated toy. How do we deal with these exemptions and how much testing needs to be carried out to ensure children cannot access these parts?

Ms Curley noted that all toys which require the prior consumption of food will be banned. Does that address toys such as Kinder eggs, which contain small parts inside plastic bags? A small child might choke on such toys.

By virtue of RAPEX, EU and Irish manufactures have thus far demonstrated their willingness to make notifications on toys which give rise to potential risks. However, they are being put under severe strain. What steps will the EU take to prevent non-EU suppliers from bypassing the restrictions? Like Senator Leyden, I do not understand how some products which are on sale ever managed to pass safety tests. Is the CE marque being abused in that regard and, if so, how many prosecutions have been taken? I do not believe there is sufficient awareness of the logo or prosecutions to prevent stores and market stalls from selling goods which are fraudulent or in breach of the directive.

We are discussing children's safety but, while distributors have taken steps to address these concerns, many manufacturing companies are abusing children in sweatshops in China and elsewhere in the Far East. Perhaps it is the work of another directive to ensure that all companies which sell goods in Ireland act in an ethical and socially responsible manner by ensuring the factories which produce the goods do not abuse children or any other worker.

Mr. Clive Shelton

The Deputy is right. The issue is to do with corporate social responsibility and is not addressed by this directive.

Chairman

Reputable companies always like to ensure they are getting their products from certain manufacturers. The Chinese market is huge. I have no doubt that all manufacturers are checked out and that representatives of Smyths have visited the manufacturers in China and seen the work procedures in place.

Mr. Clive Shelton

Once again, there is a huge industry, particularly in China, in checking factories, and the toy industry has its own system.

Mr. Liam Smyth

We only deal with reputable suppliers——

Chairman

I am sure of that.

Mr. Liam Smyth

——and we carry out factory visits ourselves.

Chairman

I have huge admiration for Mr. Smyth's company. He runs a very successful operation. I have visited its shops on many occasions and the merchandise is superb.

Mr. John Shine

I will deal with a few issues and then answer the queries of members. With regard to RAPEX, Deputy Connick referred to concerns about increases in notifications. There are a number of reasons for this, one of which is the enlargement of the EU in recent years. Historically, a great deal of product safety work has been done in Eastern Europe, so there is a lot coming through because of this. However, there are other reasons. Product safety in general and particularly toy safety has been much more in the public focus in recent times, and the industry is taking a responsible approach to it. It is important to point out that of the 1,600 notifications last year, not all resulted in recalls. They would have resulted in various actions up to and including recalls. It is only in the more serious incidences, on the basis of the risks identified, that a recall is initiated.

Deputy Ó Snodaigh asked whether it was the case that some toys were actually getting through into the market and subsequently being picked up. That is certainly the case sometimes. We would all like a scenario in which the controls at manufacturing level were such that these toys were prevented from entering the market.

Chairman

Is Mr. Shine referring to counterfeit toys?

Mr. John Shine

No, I am talking about toys in general. Inevitably, for various reasons, toys will get into the market. For example, in the case of the Mattel toys last autumn, Mattel had actually gone through the system and was satisfied that sufficient controls were in place, but because one sub-manufacturer down the line changed its paint supplier, contaminated paint was used in the toys. Thus, with the best will in the world, the manufacturer may be exposed if there are any changes in the supply chain — which may or may not be known to the manufacturer — somewhere along the line. There is always an onus on operators to ensure that whatever comfort they may have received in the past is still in place and that they keep up to date with developments.

Deputy Ó Snodaigh also mentioned products from third countries and questioned whether such products could bypass EU controls. The main source of toys outside the EU is China. The Commission, at the most senior levels, has been putting a great deal of pressure on the Chinese and is satisfied that the Chinese are taking this seriously. A Chinese version of the RAPEX system is in place and the Commission is working closely with the Chinese to ensure standards are at an appropriate level. However, toys are also coming in from elsewhere and the Commission is considering this and trying to address it based on risk. As I mentioned, from an Irish perspective, we are particularly conscious of this and rather than relying on any EU activity we are trying to deal with it ourselves. We are, in co-operation with customs, identifying imports from third countries and trying to ensure they are safe.

Chairman

Is it not the case that toys may be imported to other European countries and then purchased by Irish retailers via European wholesalers? There may be no indication that the port of origin of such products was Beijing because they have been purchased via a European wholesaler.

Mr. John Shine

That is where the advantage of joint action throughout the European Union comes into play in order that we do not have to unilaterally seek to identify all markets, events and activities. The best way to use our resources is in the context of joint EU-wide activities.

Chairman

Is the National Consumer Agency concerned that most of the toys sold here are tested in the United Kingdom rather than Ireland?

Mr. John Shine

We have to outsource our testing facilities, whether to the United Kingdom or elsewhere in the European Union, because there are no test houses in the State. It would be far easier from a logistical perspective to have test houses in Ireland but the lack thereof has not proved an insurmountable problem. We have used and continue to use test houses in other jurisdictions. For example, when we were concerned recently about the safety of the hurling helmets being sold by a large retailer, we had those products tested in a United Kingdom test house. That does not cause difficulties for us. To remove any potential ambiguity, the Consumer Protection Act 2007 which provided for the establishment of the National Consumer Agency specifically provides that we can avail of evidence from out-of-State test houses. We are satisfied with our ability to undertake testing of products as required.

Chairman

Deputy Connick asked about serious injuries to children. I understand there is no record of such injuries.

Mr. John Shine

There has been no such record since the late 1990s.

Ms Helen Curley

Deputy Ó Snodaigh had some queries on exemptions and the comitology procedure in regard to carcinogenic, mutagenic and toxic to reproduction, CMR, chemicals. This is dealt with in the second annexe, on page 39 of the draft directive. While there is provision for a ban on these chemical substances in accessible parts of toys, there is a possibility for their use subject to certain conditions. The use of the substance in question must have been evaluated by the relevant scientific committee and found to be safe, after which a decision as referred to in Article 45(2), the comitology procedure, may be made. An important caveat is that there are no suitable alternative substances as documented in an analysis of alternatives. In addition, the substance in question must not be prohibited for use in consumer articles under the REACH directive. There is also a proposal that the Commission will mandate the relevant scientific committee to re-evaluate such substances or preparations as soon as safety concerns arise and at least every five years from the date a decision is made under the comitology procedure.

Deputy Aengus Ó Snodaigh

If an exemption is made, will this be indicated on the labelling to ensure that consumers will be aware that carcinogenic, mutagenic or toxic to reproduction chemicals were involved in the production of the product or are contained within it? I am trying to understand why there would be any such exemption considering the significant progress made on consumer safety issues such as, for example, ensuring there is no lead in paint. I cannot see whether labelling is required in the directive. That is the reason I ask.

Ms Helen Curley

My understanding is it will be contained within the technical file. In terms of the provisions of labelling, we will examine the matter and get back to the Deputy. I am not aware that it is there either at the moment

I should emphasise that this is a draft proposal from the Commission and it will clearly be subject to negotiation with the member states and the European Parliament.

Deputy Aengus Ó Snodaigh

As a committee, we will make recommendations and that is the reason we are trying to tease out the fault lines.

Mr. Clive Shelton

We could get into awfully difficult chemistry if we are not careful. I know the committee does not want to go there. Sometimes, in order to make modern household products, possibly including the pen members write with, dangerous substances must be used. That is not to say they are present in the product being used.

This proposed directive will completely ban the use of all CMRs. It may be that one has to use a CMR, in very rare circumstances, to make something that ends up being very safe. One example might be vinyl chloride, which makes PVC. The purpose of this section of the directive is to allow that to happen as long as the right research is being done.

Chairman

With regard to Mr. Smyth's point, item No. 1 refers to restrictions on chemicals in toys, with the development of appropriate risk assessment methodologies for identification and quantification of CMRs. There is the development of new testing procedures and their harmonisation across the EU, which will involve the use of different, more sensitive testing equipment and techniques than have heretofore been used by mainstream testing organisations. There is also the proposal to introduce improvements to a product's process control and how the EU scientific committee will prioritise its workload so bottlenecks and delays can be avoided. The last provision is to ensure the directive is harmonised with REACH regulations so that conflicting obligations are avoided.

Perhaps there could be a comment on the restrictions on chemicals in toys? Mr. Smyth has an opinion on the timeframe for this directive. I am curious about the changes that will be necessary if the new directive is passed, and how toy retailers can be assisted by Government and the NCA to ensure high levels of toy safety in Ireland. Coming from one of the biggest toy retailers in the country, it is important we get Mr. Smyth's opinion. These directives are introduced but people can be self-regulatory in the interests of safety.

Mr. Clive Shelton

The duties that the directive will give to a company like Smyths Toys will be mainly administrative. In other words, there is much more information to be collected about each individual product. This applies when Smyths Toys does its own importing. If it buys products from mainstream toy companies, Smyths Toys must ensure the companies comply with their duties under this directive. When the company does its own importing, it will need some time to put together its own internal systems to ensure everything is being complied with by suppliers.

This goes in parallel with the work the EU is doing with China or the Far East generally. Those in the Far East need to be educated too. Time will be needed to bring the internal systems within a major retailer like Smyths up to speed with this directive.

Chairman

Safety is the thrust of the changes in this new directive. The specifics deal with improving warnings on products, including at the point of sale. There are also improved provisions for dealing with risks associated with choking and suffocation, and toys and food products will be regulated on the basis of a precautionary principle. Manufacturers and importers will in future be required to perform an analysis of the hazards which a toy may present, and make such an analysis available to market surveillance authorities for inspection as part of the toy technical file. The new directive also refers to the reinforcement of the relationship between the directive and general product safety. It further refers to the specific rules on CMR in toys and states that a ban will apply in respect of toys where the level of CMR is above prescribed limits.

When one considers the changes that have occurred in the 20 years since the existing directive was introduced and the fact that the volume of toys sold has quadrupled, it is obvious that what is required in terms of a shift does not constitute rocket science.

Mr. Clive Shelton

Certainly not.

Chairman

That is why I am surprised our guests are of the view that time is required before the directive is transposed into domestic law.

Mr. Clive Shelton

There will be need, for example, to carry out hazard assessments in respect of each individual item. The toy industry does not necessarily do that at present. The new directive contains more stringent requirements in respect of technical files. There are no such requirements at present. In addition, further information will have to be provided in respect of chemicals in toys. Currently, the toy industry does not ordinarily collect such information. It is, therefore, in respect of the introduction of those systems which those in the industry — particularly Smyths Toys, as an importer — will require that time is needed. I am not saying anything nasty will be discovered; it is just that the directive contains a basic requirement to the effect that more information must be collected in respect of each product.

Mr. Liam Smyth

We previously concentrated on the final product and the testing thereof. In future we will be required to know more about what a product contains. Our suppliers must be briefed in respect of this matter so that they might provide us with the necessary information. We will then be in a position to check everything out. It takes time to——

Chairman

I have no doubt about that.

Ms Helen Curley

Deputy Ó Snodaigh referred to toys in food products, a matter addressed in Annex ll, on page 37 of the draft proposal, which states:

Toys contained within food or co-mingled with a food must have their own packaging. This packaging, in its supplied condition, must be of such dimensions as to prevent it being swallowed and/or inhaled.

This provision would cover small toys contained in Kinder eggs.

Chairman

Is Deputy Ó Snodaigh satisfied with that response?

Deputy Aengus Ó Snodaigh

Yes.

Chairman

Would it be possible for the Department to do anything in the short term in respect of enhancing toy safety in the context of the provisions of the existing directive? Can action be taken to encourage retailers to provide further information or notification at the point of sale? A great deal could be done in the context of the existing directive. Would it be possible to eliminate the possibility of children having accidents with toys by requiring retailers and market traders to display warning signs?

The existing directive is 20 years old. Many retailers whose activities are unregulated are selling stock that emanates from Third World countries. It is a pity the Department cannot take greater action in this area. Perhaps it could put in place a media campaign — either on local or national radio — or provide information through crèches, schools or parent councils to educate people.

Mr. John Shine

We examine this matter on a continual basis and we are not sitting back waiting for something new to happen. There are some ongoing initiatives. We do our best to disseminate information to consumers and we will try to publicise as widely as possible, our booklet for consumers on toy safety. We are continuing to develop our relationships with retailers and distributors, as evidenced by a seminar we——

Chairman

When one considers what constitutes a toy retailer, one immediately thinks of the main toy store chains and retail outlets. A number of retailers who sell toys are not necessarily toy retailers. Toys are being sold in every newsagent, supermarket and gift shop. Has any effort been made to deal with that area?

Mr. John Shine

Where there are representative bodies we try to engage with them. Our resources are limited in this regard. We are trying to do what we can with the resources we have. Where we have concerns regarding imports we work with the customs authorities and try to stop goods at point of entry into the country. It is much more difficult to stop distribution when goods have been dispersed to thousands of stores. We are constantly amending our list of the retailers we work with and their representative bodies. We also try to use our website. We issue press notices on various issues. We have issued two press notices in recent weeks. We put advice for consumers on our website.

A Commission decision regarding magnets in toys will come into effect at the end of next July. We are engaging with the trade and with customs on that and we may do some follow-up market surveillance.

Chairman

What specific funding has been allocated for your public campaign on toy safety?

Mr. John Shine

We do not have a campaign, as such. We respond as issues arise. A number of weeks ago, for example, an issue arose regarding general product safety which necessitated us placing an advertisement in national newspapers. In the last week we placed an advertisement regarding magnetic toys. We are not constrained. Clearly, we have budgets but we do not have a specific budget for product safety.

Chairman

As toys are such a huge business, are wholesalers levied to fund the promotion of toy safety?

Mr. John Shine

No.

Chairman

Mr. Mitchell, would you like to contribute?

Mr. Gay Mitchell, MEP

No thank you, Chairman. I am interested to hear the debate. I am sorry I had to leave the meeting for a time to attend another meeting.

Chairman

This has been a very beneficial debate. It has clarified this directive. Observations arising from today's meeting will be welcome and I ask that they be sent to the committee secretariat. It is intended that a detailed report will be prepared on this issue and widely circulated.

I thank Ms Helen Curley, Mr. John Shine, Mr. Liam Smyth, Mr. Clive Shelton and their colleagues for their presentations and for answering our questions. This issue is of great concern. Children are among the most vulnerable in our society. Our discussion has been informative and will help the committee in finalising the scrutiny report on this proposal.

The joint committee adjourned at 12.53 p.m. until 11 a.m. on Tuesday, 27 May 2008.