Options

• Maintaining the Existing Requirements and Industry Self-Regulation
• Mandatory Product Safety Standard
  • Contents of a Mandatory Standard
  • Costs
• Unsafe Goods Notice (Product Ban)
  • Product Recalls

23. There are regulatory and non-regulatory options for addressing the safety concerns regarding dummies/pacifiers. A non-regulatory option includes:

• industry self-regulation.

24. Regulatory options in the form of product-specific intervention under the Fair Trading Act include:

• product safety standard
• unsafe goods notice (product ban)
• product recall.

Maintaining the Existing Requirements and Industry Self-Regulation

25. The Product Safety Standards (Children's Toys) Regulations 1992 are revoked by the new regulations on 8 September 2006 and coverage will revert to the general safety obligations under the Consumer Guarantees Act 1993. Consumers and retailers would have to rely on suppliers to provide adequate information.

26. The removal of the 1992 regulation is not a "do nothing" option. The measures available under the Fair Trading Act, such as recalling products which are found to be unsafe or are likely to cause injury would continue to be available on a case-by-case basis. These measures are designed to deal with one-off situations.

27. Major suppliers have a long term commitment to the market and reputations to maintain. Small and often transient market participants however are a feature of this market sector. These suppliers appear largely unaware of some of the regulatory requirements and the prospect of gaining their voluntary compliance is not good.

Mandatory Product Safety Standard

28. This is the preferred option.

29. Stakeholders have already shown their support that continued regulation for dummies/pacifiers is warranted.

30. Product safety standards are designed to address generic safety issues that apply to an entire class of goods. Adopting national standards that have been drawn up by industry and consumer representatives, will provide achievable safety outcomes. This option is intended as a preventive measure against identified safety concerns and provides a benchmark of safety in terms of design, construction, performance, and information as to use. Product safety standards are mandatory and are enforced by the Commerce Commission in the market, and the NZ Customs Services at the border.

31. The mandatory product safety standard will provide the necessary benchmark to ensure that dummies/pacifiers within the market meet minimum safety requirements. The mandatory standard would ideally specify the small part requirement of AS 2432-1991 Babies' Dummies for dummies/pacifiers to ensure a safe product.

Contents of a Mandatory Standard

32. Should a product safety standard be declared, it is most likely to conform to the national voluntary standard AS 2432-1991 Babies' Dummies.

33. AS 2432 specifies safety requirements relating to the materials, design, construction and performance of babies' dummies, together with recommendations for their use and hygienic care, all of which are important for the health and well-being of a baby. The standard applies to all babies' dummies except those intended for use by premature babies, or for therapeutic application or the like, in which the usage is under medical supervision or direction.

34. The small part test is considered the shield test in Appendix C of AS 2432:1991, the shield dimensions are stipulated with the template test or small part requirement (i.e. the shield must not pass through the template opening).

35. Comment is sought on the consideration of other tests incorporated in AS 2432:1991. For example, the ventilation holes requirement specifies providing air passages through which a baby could breathe if the dummy was accidentally `swallowed', but the ventilation holes would also prevent the risk of the dummy being sucked into the oral pharynx since negative pressure would be generated. Also the requirement for the material to be used which stipulates that the material shall not contain any leachable constituent.

36. There are, however, other options that need to be considered, including the American and Canadian mandatory standards. Copies of the American and Canadian standards are available for viewing:

• Regulated Products [link to CPSC website] - see the Regulatory Summary under "Toys/Children's Products - pacifiers".
• Pacifiers [link to Health Canada website].

Costs

37. Although dummies/pacifiers are currently mandated by the Product Safety Standards (Children's Toys) Regulations 1992, a new regulation would impose an additional burden on the Commerce Commission's resources that may need to be met either with additional funding or with a reduction in enforcement activity in some other area. These costs would be borne by taxpayers generally, rather than the purchaser of the product.

38. Additional burden would also be imposed on the New Zealand Customs Service's resources that may need to be met either with additional funding or with a reduction in enforcement activity in some other area. These costs would also be borne by taxpayers generally, rather than the purchaser of the product.

Unsafe Goods Notice (Product Ban)

39. Section 31 of the Fair Trading Act 1986 gives the Minister the power to declare goods to be unsafe goods by notice in the Gazette. Such a notice stays in force for a period of 18 months and has the effect of prohibiting the supply of the goods to which it applies. The Minister may use these powers "where it appears to the Minister that goods of any description or any class or classes of goods will or may cause injury to any person".

40. Unsafe goods notices are enforced by the Commerce Commission and at the border by the New Zealand Customs Service.

41. Unsafe goods notices are predominantly aimed at either a specific brand or model of good or a specified unsafe feature, (for example specific models of crossbow or any pistol crossbow without a safety catch). If the unsafe feature is generic to the entire class of that good, an unsafe goods notice may be used as an interim measure while a product safety standard is being prepared, (for example rubber hot water bottles).

42. A ban on the supply of a product is a severe regulatory option and would target the product unfairly. It is seen as a measure of last resort and must satisfy the elements of natural justice. Where this measure is adopted it must be clearly established that the product itself is the primary cause of injury and that any other mitigating circumstances have only a minor impact.

43. A ban is not considered a viable option. It would also not take account industry practices due to the current 1992 regulation for dummies/pacifiers.

Product Recalls

44. Section 32 of the Fair Trading Act 1986 gives the Minister powers to require the recall of goods which, which are of a kind which will or may cause injury. A product recall is not considered a viable option. Mandatory recalls are warranted on a case by case basis and are only used in extreme cases.