New Product Safety Statute

On July 1, 2010, a new Swiss Federal Product Safety Statute (in German: Produktesicher-heitsgesetz, PrSG; see Classified Compilation of Federal Legislation number SR 930.11) together with its Implementing Ordinance (in German: Produktesicherheitsverordnung, PrSV; SR 930.111) came into effect. The PrSG brings Swiss law in line with the European Union’s General Product Safety Directive 2001/95/EC and entails amendments to numer-ous other statutes and ordinances.

Manufacturers, distributors (importers as well as exporters) and retailers doing business in Switzerland are therefore advised to update their corresponding compliance structures.

The PrSG rules notably also specify the concept of product liability as it is generally de-fined in the Federal Product Liability Statute (in German: Produktehaftpflichtgesetz; PrHG; SR 221.112.944).

However, the PrSG is only applicable to the extent that it is not superseded by more spe-cific legal provisions laid out in special regulations implemented by various federal agencies. In cooperation with these specialized agencies, the State Secretariat for Eco-nomic Affairs (SECO) coordinates the implementation of the PrSG and, together with the affiliated Federal Consumer Affairs Bureau (FCAB), operates a reporting and information desk for product safety.

The relevant provisions of the PrSG are the following:

1. Safety requirements for placing products on the market
   As a general rule, when placing an either new or used product on the market, the pack-aging and labeling as well as the warning and safety instructions in the product docu-mentation must duly take into account that product’s specific hazard potential.Special regulations set forth in detail the safety and health requirements related to spe-cific product categories, especially the form and contents of certificates of conformity which have to be obtained prior to placing a product on the market. These certificates of conformity follow the EU’s New and Global Approach which aims at gradually harmo-nizing the various product certification and product registration regimes. Consequently, the purpose of the PrSG is not only to promote product safety in the market, but also to remove technical barriers to trade which is the main subject matter of the revised Fed-eral Statute on Technical Trade Barriers, effective also as of July 1, 2010 (in German: Bundesgesetz über die technischen Handelshemmnisse, THG; SR 946.51). The THG lays the basis for implementing the so-called “Cassis de Dijon” doctrine as developed by the European Court of Justice and pursuant to which products which have lawfully entered the EU’s stream of commerce can freely circulate without prior approval.Special ordinances may additionally require that extra hazardous products (e.g. certain drugs or toys, elevators, cranes, pressure vessels etc.) must be approved by a conformity assessment body.
2. Monitoring, hazard prevention and reporting duties after placing products on the marketManufacturers and other economic operators must ensure that during the indicated or expected durability period of a product

• appropriate measures are taken in order to detect at an early stage (especially by following proper product monitoring procedures) and to prevent (e.g. through warnings, sales stops, recalls) product hazards which may occur in the reasonably predictable use of that product,
• complaints which may be related to product safety are pursued,
• competent authorities are immediately notified, if product hazards are likely to oc-cur.

In case of a violation of the information and cooperation duties owed to the competent authorities, a fine of up to CHF 40,000 is due. Any negligent placing of products on the market which is not in conformity with the requirements of the PrSG is subject to a fine of up to 180 daily units (which depend on the personal and economic situation of the of-fender).

Moreover, if a product which does not meet the requirements of the PrSG causes a damage, the manufacturer and all other economic operators in that product’s distribu-tion chain are jointly and severally liable pursuant to the Federal Product Liability Statute (PrHG; see above).

Contact:
Christoph Vaucher
lic. iur., Attorney-at-Law, LL.M.