4. Additional regulation on accident information disclosure and sharing
A more recent development in consumer product safety regulation is a requirement on suppliers to notify the regulators about serious product-related accidents or deaths. Better flow of information flows to government through such a mechanism is essential to evidence-based ‘responsive regulation’ in the event of serious product failures, including more serious measures such as mandatory recalls, bans or the development of minimum safety standards. Furthermore, if supplier reports are publically available, even without identifying specific manufacturers or products, then consumers and others can become more aware of the potential health risks associated with particular products or types of products.
In some jurisdictions, such as the EU, US and Canada, suppliers must also notify their regulators when they ought to know about serious product-related accidents or deaths, and where there is a serious risk even if no actual accident occurred. In 2010, Australia’s ACL regime introduced a disclosure obligation that is narrower in these respects, and questionable also in other aspects. For example, it also does not require disclosures of long-onset health risks or diseases (unless and until these result in deaths). Most unfortunately, the ACL adds strict confidentiality obligations on the regulator receiving accident reports from suppliers; it cannot even share identifying information with regulators from close trading partners. This hampers Australia’s capacity to contribute product hazard information to the OECD’s Global Portal, which over the long term aims to collect and disclose information on serious hazards in addition to recalls. However, Australia may be able to amend the ACL if it accedes to free trade agreements or other international agreements that allow for information-sharing with counterpart regulators overseas – including those in Asia.
Major product safety regulators worldwide are already concluding memoranda of understanding to share product safety incident information. For example, the EU has long had a Rapid Alert System for Non-Food Products Posing a Serious Risk (RAPEX), for notification of measures taken by national regulators from its member states to limit supplies of dangerous goods. Pursuant to a 2006 agreement with China, information on dangerous goods reportedly sourced from China is passed on the Chinese government for investigation there (the ‘RAPEX-China’ system).
The sharing of product accident or hazard information reports (not just ‘recall’ reports) from local suppliers is thus important, as such reports can be integrated into the OECD’s portal as it expands. Yet, for effective sharing of reports, jurisdictions should consider new regulations requiring suppliers to disclose information about serious product-related accidents or deaths. They should also allow each state’s regulator to disclose reported information to foreign counterpart regulators, international organisations like ASEAN and the OECD, and to the general public (at least in general form).
ASEAN exporters are already increasingly likely to have to agree to disclose such accident information to trading partners in other countries or jurisdictions, like the EU or Canada. This is because those countries already impose duties on suppliers (including exporters), requiring them to report serious product-related accidents that they should know about, even when occurring abroad. To comply with such laws in their home country, these exporters may therefore negotiate contractual obligations on counterparties (e.g. in ASEAN Member States) to notify them if they become aware of serious product-related accidents or risks.
ASEAN suppliers and policymakers should also be aware that the US government has recently launched a website that allows consumers to directly upload information about purportedly unsafe products. Suppliers can then post comments in response and seek corrections to consumers’ reports. This Safer Products website is open to the public and searchable. US government officials, healthcare professionals and others can also file reports. Separately, US suppliers must provide reports of accidents and serious risks to their Consumer Product Safety Commission. As well as considering information-sharing arrangements with this commission, the ACCP and ASEAN states can already monitor the reports from consumers and others through the new Safer Products website, to anticipate more effectively hazards that may arise with similar products within ASEAN.