Product safety panel discussion - Part 3 | Product Safety Solutions

National Consumer Congress 2019 held in Melbourne, 14 March 2019

This is Part 3 of the product safety panel discussion transcript from the 2019 national consumer congress. The full audio recording is available on podcast.

In this Part, the panel explores how well the system is working at the moment

Moderator – Delia Rickard, Deputy Chair, Australian Competition and Consumer Commission
Dr Ruth Barker, Pediatrician and Director, Queensland Injury Surveillance Unit
Gail Greatorex, Owner and Principal, Product Safety Solutions
Erin Turner, Director, Campaigns and Communications, CHOICE

Delia Rickard: Now, I think we’ve all started to touch upon this, but starting with Ruth, what do you see as the fundamental problems or weaknesses with the current system? And if there’s anything you think works well, feel free to mention as well.

Dr Ruth Barker

Ruth Barker: So the current system unfortunately relies on complaints from consumers and complaints from people like me. And then it takes more than just one complaint or one death or one serious injury. You have to gather data and then I need to not only demonstrate that there’s one really significant outcome, I need to demonstrate that there’s a series of really significant outcomes and that becomes really problematic.

I’ve had to lobby pretty much since Summer (Steer)’s inquest, which was in 2015, to get a national surveillance program looking for severe button battery related injuries, because I was told we have all the data we need.

What you’re missing out on is that group who you saw in that video who have really severe, life changing injuries.
Dr Ruth Barker

And I kept saying, you’re getting the deaths because they’re reported through the coroner and you’re getting the emergency presentations. But what you’re missing out on is that group who you saw in that video who have really severe, life changing injuries.

So that little girl (in the video), in case you missed it, has a bag – her oesophagus has deviated out to her neck and she has a stoma here to collect saliva because the damage left by the battery means that she’s unable to swallow her own saliva. So you just need to process that for a minute, and then think that when they hook her oesophagus back up again, it is not going to grow with the rest of her body.

If you imagine what your life would be like with a scar tissue, the size of a two year old oesophagus as an adult trying to swallow a piece of steak, it just doesn’t work.

I have a little kid who I treated in the emergency department as a 20 month old when he ingested dishwasher detergent, which had a PH of 14 and he had severe burns. Harry now is 16 and has had over a hundred endoscopies to continue to dilate his oesophagus, and they’re looking at doing some sort of an oesophogeal transplant, which is really huge and cutting edge stuff.

So it really gets my goat that I don’t just have to say, ‘You know what? These things can kill kids, that ought to be enough. But no, I have to collect a case series and then still argue about it.

Delia: Gail, what are your thoughts on the current regulatory system?

Gail Greatorex

Gail Greatorex: I’ve got three points I’d like to make. Apart from a few regulated products, suppliers can currently sell unsafe goods without breaking the law. Rod (Sims, Australian Competition and Consumer Commission (ACCC) Chair) talked about that earlier in the day. So a general safety provision currently under consideration would change that.

Currently

some suppliers sell unsafe goods, despite good efforts not to, and that’s partly because, as I was saying earlier, the system is complicated
some suppliers sell unsafe goods because they haven’t given priority to all of the other competing things in running a business, or they weren’t even thinking about safety in the first place
and a few bad suppliers will sell unsafe goods even if they know that they’re unsafe (Thermomix might get a mention there)

In the same vein, there’s no express prohibition for selling goods that have been subject to a recall. So, for instance, those saucepans on the example sheets we handed out on the tables, those saucepans that have the faulty handles. They could find their way back onto the market even though they’ve been recalled and there would be no penalty for the supplier who put them back on the market.

(The ACCC) had to use the ACL’s misleading and deceptive conduct provisions. So that hardly shouts ‘PRODUCT SAFETY LAW’ to anybody.
Gail Greatorex

Now the ACCC has run a couple of significant enforcement cases[1][2] where they hit companies up for knowingly selling unsafe goods. But to do that, they had to use the ACL (Australian Consumer Law) misleading and deceptive conduct provisions. So that hardly shouts ‘PRODUCT SAFETY LAW’ to anybody who’s sitting down running their business, a little import business. It’s not enough of a message to go out.

The second point I want to make is that instead of always playing catch up, a GSP could help identify product problems earlier and it could identify emerging trends as well. So I think that a lot more information would come forth if we had an overriding law for product safety without having to have consumers get injured or make a complaint.

There is a big untapped resource in Australia for product safety . . .
Gail Greatorex

My third point is that there is a big untapped resource in Australia for product safety and that is business and industry associations. There’s a few associations who are really proactive in product safety, notably the Toy Association, the National Retail Association and Accord, who look after cosmetics and household chemicals.

They’re in the minority at the moment and I’m hoping that we can bring some more on board to start making some effort. But I think that the, ACCC can and should gain some valuable leverage by working together with the associations to bring them up to speed on the product safety.

Delia: I think that’s a really good point. Just before I go to Erin, which industry associations come to your mind that we should be talking to now as being significant players where we can make a real difference?

Gail: Well, as with a lot of product safety, they’ve got their own little sectors. There’s separate associations for gift and homewares, for instance, and that would be one that’s got a nice broad-based range (of products).

Some associations are not well funded and they exist mainly to run an annual trade expo, but others take their responsibilities more seriously.

And there’s a few umbrella ones like the National Online Retail Association as well, who I imagine the ACCC has some relationship with already. That would be another couple. I’ve got a long list Delia and I’d be happy to talk to you about it.

(The points made by Gail Greatorex in this session are covered in more detail in a 2018 white paper and related article Paradigm shift needed for product safety in Australia)

Delia: Good, we’ll follow up.

Erin, what problems are you seeing with the current system? What are your thoughts on how it’s working?

Erin Turner

The big problem is (the current system’s) reactive and, coupled with that, it leaves too much in the hands of businesses.
Erin Turner

Erin Turner: I think the big problem is it’s reactive and, coupled with that, it leaves too much in the hands of businesses. As Fiona (Guthrie, CEO, Financial Counselling Australia) covered really well (in her Congress keynote), businesses aren’t exclusively focusing on the welfare of the community. In fact, they’re often de-prioritising – for profit and self-interest.

Right now, businesses are responsible for initiating a voluntary recall and they also control how it’s conducted, how it’s advertised. So you’re having their interest in terms of brand promotion and reputation go up against the community need for safety.

We saw this really well with the Thermomix case that the ACCC took. Is everyone here familiar with Thermomix? Over-priced blender. The company in Australia had some of the most appalling practices I think CHOICE has ever seen.

Thermomix knew about this in July 2014 and they didn’t act until September, conveniently the same time that a new product was available for them to sell.
Erin Turner

They found out that their blender was unsafe. It was whirling around hot liquid, often soups at high speeds and the lid would pop off. CHOICE collected around 90 case studies where people had this incident and either had a near miss or in some cases were severely harmed and hospitalised.

They knew about this in July 2014 and they didn’t act until September, conveniently the same time that a new product was available for them to sell.

On top of that, they pulled some appalling tricks. They initiated a recall, but they told people it wasn’t a recall. They denied people proper refunds and remedies. But there is a lovely positive end to this tale and think it is something that’s working really well about our current product safety system.

And that’s that we have a proactive regulator (the ACCC) that takes cases like these. And takes these companies to task. Sometimes with very creative uses of the law, like we saw with the Woolworths case, applying anything they can to take these companies who aren’t respecting safety to the courts. It’s why, if we do get the law reform we’re looking for – a general safety provision – I’m quite excited to see what the ACCC will do with it.

Go the other parts of the transcript: Part 1, Part 2, Part 4

[1] Australian Competition and Consumer Commission v Woolworths 2016

[2] Australian Competition and Consumer Commission v Thermomix 2018