Toy safety is my priority; I manufacture and sell baby toys; Little
The EU currently regulates the standards for all baby toys and products so what happens after Brexit is critical. In theory, when we leave the EU, there is the possibility the UK won’t be bound by their rules so there is the possibility that I won’t have to test my toys to the European standard, which is very high. But is that good for my business?
It is unlikely that companies such as mine will use Brexit as a reason to lower the safety standard of toys. Whilst we are in the EU, we have to abide by their rules. As soon as we leave the EU, I don’t know what will happen. I am waiting for clarification as it is uncertain.
As a toy company and a parent, I just want to know what the rules will be. We know that parents want only the best for their children, so we won’t be dropping our standards. Only a foolish company will use Brexit as an opportunity to lower the standards, but there is a risk that some companies will do this.
In addition to toy safety, I clearly have a commercial interest in Brexit. I am interested to know what standards I need to meet, whether the UK will establish their own set of rules and standards, whether I can continue to export my toys to the other EU countries? Will I be able to sell my football in France, the current football World Champions or my baby tennis racket to Spain, home of Rafa Nadal?
What are the standards?
There are two main standards that toys have to meet. There is the European safety standard, known as EN71 and another European regulation known as REACH. As a toy manufacturer, I have to ensure that my toys meet both standards.
EN71 sets a safety standard for mechanics and technical parts of toys, tests for flammability, choking hazards, sharp edges etc. There are tests for finger paints and a different set of tests for trampolines, tests for soft toys and a different test for electronic toys. The rules have evolved, they complex but are designed to ensure that the toys are safe. As a parent, that’s a good thing?
There is another Regulation known as REACH. REACH is an acronym for the Registration, Evaluation, Authorisation and Restriction of Chemicals. When I send my toys to be tested for compliance with REACH, specialists check the toys for chemical substances, and their potential impacts on both human health and the environment. When the European Union introduced REACH in 2006, it was considered one of the strictest testing regimes in the world. For clarity, the UK was heavily involved in the legislative process. It sets a very high standard. Again, as a parent, surely that is a good thing? California also sets very high standards. My toy brand tests for both standards.
Who tests toys for safety?
There are a number of accredited testing agencies that test toys. They are independent and they test the toys in their laboratory. I can choose which agency to use but they all work to the same standards. Usually my decision process is driven by who is available when I need my toys testing. The agencies use objective criteria and will only give their approval if they are satisfied the toys meet the required European standard.
If you are wondering who tests the testing house, there is an accreditation process ensures that the testing houses are all meeting the same standards. In other words, the process is controlled and there is little scope for one of the testing companies to offer a lower standard than their rival. If they fall below the required standard, they lose their accreditation. Simple.
How does the UK enforce that the safety standards are met?
Most toys are still made in the far east because it is cheaper to manufacture in China, or Taiwan. Little Sport Star toys are also made in China. Consequently, I have to import all my toys. I usually order a container which is shipped from China to the UK and the toys enter the country through one of the UK’s ports or airports. At this point, UK customs checks to see that any toys entering the country meet the required standards. If they don’t meet the minimum standard, customs will impound them. For the importer, this is not good news as there is a hefty fee for every night your goods are impounded.
My toys were recently pulled up after a routine check. I discovered that I did not have one of the required certificates so the customs officer refused to let my toys into the country. After a few days, having made phone calls to my counterparts in China, I had the documents that they were looking for and the toys were released. Yes, it was a paperwork exercise and could have been handled more efficiently, but I did not resent the checking process. The checks are there for a reason – toy safety.
How do consumers know they are safety tested?
You can see if a toy has been tested as it will usually have the CE mark. When toys have passed the test, they are entitled to include the CE mark. CE marking is a certification mark that indicates conformity with health, safety, and environmental protection standards for products sold within the European Economic Area.
In my recent case with HMRC, the toys did not have a CE mark as they were originally manufactured for sale in Toys R Us in the US. The labelling requirements are different in the US, so we did not put the CE mark on. However, when Toys R Us went bankrupt, we diverted them to the UK but it was too late to put a CE mark on. The toys had only been tested for US standards, so, we had to do additional tests on the toys including EN71 and REACH. We spoke to HMRC and they were happy that our toys met the right standard, and they said that provided we were transparent with our customers, they were happy for us to sell the toys in the UK.
Will UK toy companies stop testing for European standards after Brexit?
This is one of the big questions that toys companies have to address after Brexit. We want to know who will be setting the standards and will they be different to the existing standards? Business owners have not be told what to do after Brexit, and so when you hear business screaming out for certainty, this is why. We do not know with certainty what the rules will be after Brexit.
What are the WTO rules for toys?
There is a discussion that if we crash out of the European Union with no deal, we will be regulated by WTO rules. This sends shivers down the backs of many businesses, as it creates uncertainty. So taking my example of toys, what are WTO rules on toys safety and what is wrong with them?
The short answer is that there are no WTO rules for toy safety. The WTO is a very different beast to the European Union. It facilitates trade by establishing tariffs between countries. From the WTO website: “The WTO’s overriding purpose is to help trade flow as freely as possible — so long as there are no undesirable side-effects — because this is important for economic development and well-being.” Undesirable side-effects – what about our kids health…?
If the UK is not bound by EU safety rules and the WTO has no toy safety rules, it is conceivable that toy companies could implement lower safety standards provided there is no “undesirable effect”. Of course, you might think that a lower standard of toy safety could be regarded as an undesirable safety effect but it is equally possible that toys manufacturers could argue in favour of an alternative safety standard. Would it be better to use California’s standard, or what about the Australian standard? At this point, it starts to get complicated. As a parent, you won’t know what standards you can rely on? You could look out for toys with the CE mark or you may prefer to only buy from trusted known brands, and trust that they must be implementing a high standard.
What are the other Brexit scenarios.
Most of the alternatives to no-deal / WTO rules involve some kind of relationship with the EU. The EU has an interest to make sure that if the UK wants to sell in Europe, then we should be governed by the same set of rules as European companies.
The Canadian model
There is a discussion that the UK might seek a “Canadian model” or a “Canadian plus model” with the EU. If we pursue the Canadian model it leaves everything open for negotiation and our negotiators would have to address standards as part of this negotiation. Standards are integral to business – from Dyson cleaners to my soft toys; we need to know they all meet a certain standard, and that they are safe. But as Brexit is effectively tearing up the rule book, we will likely have to renegotiate all the standards with the EU again, if we want to do business in Europe. What we sell in our own country, well, that’s up to us to decide!
The Norwegian model
One Brexit option that is being considered is the Norwegian model. This is probably the closest relationship with EU to what we have already, without being a member of the EU. As Norway is part of the EEA, so Norway is bound by the EU toy safety rules. Norwegian parents know that their children’s toys meet the same standard as any European country. The flip side is the EU sets the standards for toys sold in Norway and there is no obligation to consult the Norwegian toy industry before they make the rules. If the UK left the EU under terms similar to the Norwegian model, we would continue to be bound by EU safety rules but we would lose any control in setting the standards. That’s not necessarily bad, it would just be ironic that we left the EU to gain control of things like this.
Levelling the playing field
A common set of rules creates a level playing field for businesses to compete. It is also a nice analogy for my sporty toys. Imagine two teams playing the same game. One team plays by one set of rules, and the other team plays by another set of rules. Sooner or later, someone is going to claim the system is unfair.
I would like to think that the UK toy industry is consulted in setting the safety standard of toys. We are proud of our reputation. I would also question whether national interests might play a role, if we weren’t at the table when standards were discussed. Would a Danish toy expert be more aligned to Lego, or my toys? It should not be an issue as our kid’s health should be paramount. Let’s not get into a debate about remaining or leaving the EU, the point is we want to know our toys are safe.
What should parents look out for?
When business calls for certainty, it is because they want to know with certainty what safety standards to comply with. I am already ordering my stock for Christmas 2019, which is beyond the Brexit deadline. I do not know what standards I will have to comply with for April Fools Day, never mind Christmas day! Until I am told differently, then I will continue to use the EU standards. Although Brexit will create an environment in which standards could be dropped, I think it is important we collectively seek to keep the standard high. The post Brexit negotiations are likely to take years as we will need to agree trade terms with every country. In the meantime, my advice to parents to continue looking for CE mark until you are told otherwise.
It is unlikely that business will seek to look for a quick gain by lowering standard. The toy industry’s reputation is at stake. From my perspective, compliance with a high standard is actually a way of making sure only the best toy businesses survive in a very competitive market. For Little Sport Star, toy safety remains our fundamental and most basic promise to our customers. For this reason, whilst the EU continues to set a high standard for toys, we will continue to make toys to the EU standards.
Nick Farnsworth LLM, LLB is the owner of Little Sport Star. Dad, entrepreneur, toy inventor, he actually read law at University so he has an understanding of this topic. If you are interested to know more please contact him, alternatively, if you are concerned, you might want to seek an independent legal opinion. The trouble with Brexit is that until it happens, these issues will remain questions and the answers remain a mystery!