Much more can be done in the immediate term to address the hazard presented by button batteries, as listed below. But let’s start with some background.
There’s no doubt that the button battery hazard is a complex problem. However it is relatively straightforward to fix the product side. Introducing a mandatory standard (or ban) would have a positive impact on products purchased new. In the longer term all products that contain batteries would have secure battery compartments, not be prone to breaking to liberate batteries and replacement batteries will be packaged in child-resistant packs. This would dramatically reduce exposure, leaving much less reliance on consumer vigilance and action. I will be advocating for a mandatory standard in my response to the Australian Competition and Consumer Commission’s Issues Paper.
Young children suffering life-changing injuries should, on its own, justify regulatory intervention.
While a General Safety Provision would have aided in reducing the button battery hazard before now (as advocated by some), it is not a panacea. Compliance with the Industry Code* still requires supplier awareness and education activities on a large scale.
Suppliers not fully informed
Suppliers have been confused by the government strategy to date. The strategy and its relationship to the ‘Code’ is not aligned with past practice: suppliers have been unclear why regulators are pursuing compliance with a voluntary code, and there has been confusion on both sides on how to treat non-compliant product.
To date, product liability provisions in the ACL do not appear to have assisted in deterring suppliers from selling unsafe products, possibly due to difficulties in identifying the exact source of a swallowed battery. Yet, the risk for suppliers of a product liability action remains. Given the number of serious injuries, some lawsuits may even be in train.
The most serious hazard
The latest data shows one serious injury requiring surgery each month Australia (as cited in the ACCC Issues Paper, likely to be an underestimate). I have done an analysis (by risk assessment nomograph) of the hazard and risk associated with button battery ingestion and compared it with that of other contemporary product safety issues. In my assessment, button batteries represent a greater risk than Takata airbags, toppling TVs and furniture, Infinity cable and quad bikes (in that order).
It is clear that specific product regulation on both products and replacement batteries is essential now to help address this product safety crisis.
While the government is considering mandating a button battery standard, there are several separate, complementary actions that should be implemented as a matter of urgency. This is essential given the long timeframe for potential mandating of a standard. Most of these actions are available to the ACCC and its fellow ACL regulators.
1. Update the toy standard
Bring in the revised mandatory standard for toys for children under 3. This itself contains measures to improve button battery safety and is long overdue.
2. Improve supplier guidance
Provide meaningful guidance for suppliers on this complicated compliance scenario. At present, there is no suppliers page on the PSA website that outlines what suppliers can/should do (comparable to, say, basketball rings which has a consumer safety page and a mandatory standard page for explaining requirements to suppliers).
The basketball rings page is available in five languages. The button battery page and the guidelines should be translated for non-English speaking suppliers.
3. Leverage product liability risk
Highlight the risk of product liability action for suppliers who sell and have sold products and batteries that do not comply with the Code/Guidelines. Given the known hazard and high levels of community awareness, suppliers would have trouble defending any liability claims. This could be a driver for compliance, pending any action to mandate a standard.
4. Co-ordinate across government
Ensure co-operation and co-ordination between regulatory agencies to promote awareness and guide suppliers. For example, there are disconnects between the consumer agencies’ position on button batteries, ERAC (Electrical Regulators Authorities Council) and ERAC agencies themselves. As part of the national strategy, ACCC and state counterparts should seek from ERAC and its members:
- Placement of the guide on the websites of all electrical regulators and the ERAC website
- Pointing suppliers to the Code/Guidelines where relevant; and
- An ERAC-issued bulletin for in-scope products with button battery accessories covering any points not addressed in the standards. This would then require certifiers to review such requirements in product certification
5. Use consumer education to reach suppliers
Use consumer education activities to also target retailers, importers and other suppliers. A widespread, effective consumer awareness program could be used to expressly help raise supplier awareness, especially small business. For example, add a line to consumer awareness material saying ‘Do you sell, or know someone who sells button batteries or products that use button batteries? Please make sure they are aware of the measures in place/mandatory standard.’
6. Refocus on consumer education
Audit current consumer education programs and review their resourcing mechanisms with a view to facilitating better consumer awareness programs. I was surprised to learn last year that no ongoing funding exists for consumer awareness of the button battery hazard. With young children most at risk, information needs to constantly reach new parents and caregivers. What other funding models are available? Have the battery companies been urged to provide sponsorship beyond the initial Energiser program? What about other corporate or association sponsorship?
7. Use test companies to educate suppliers
Work with leading test companies to raise awareness of the new Guidelines, once published (or the mandatory standard). Testers see most products for assessment and often help suppliers identify compliance needs.
8. Bring in Customs regulations for border checks
Explore complementary regulations: Given the diverse range of impacted products, most of which are imported, requiring compliance at point of entry to the country would be a valuable strategy. In planning a mandatory standard, the ACCC could seek parallel regulatory action by Australian Border Force to introduce a Customs regulation that reflects the mandatory ACL standard. Such regulation could require a compliance declaration before goods are accepted. This would aid compliance. But perhaps more importantly, it would raise awareness among importers who are otherwise not made aware of ACL standards. Liaison with ABF at the outset would help facilitate consideration.
*The 2016 Industry Code for products that contain button batteries is currently under review
and will be published as Supplier Guidelines later in 2019.