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Legality of stringent product recall guidelines in question

21st May 2013

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Product recalls are a common occurrence internationally, and it is only a matter of time before South African products are recalled as frequently.

According to Lior Nickig, associate attorney at pan-African legal services group Bowman Gilfillan, the recently issued Consumer Product Safety Recall Guidelines (Product Recall Guidelines) are stringent and require suppliers to take appropriate steps to ensure that their safety monitoring and product recall procedures are compliant with the Consumer Protection Act (the Act).

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“The Product Recall Guidelines set out what suppliers must do in cases where they become aware that they have a safety issue that necessitates a product recall, or in circumstances where the National Consumer Commission orders a compulsory product recall. Failure to comply with the Product Recall Guidelines constitutes ‘prohibited conduct’, which has far-reaching consequences,” said Nickig.

However, whether or not the Product Recall Guidelines were, in fact, properly promulgated (and accordingly, whether or not they are enforceable) remains to be determined. There are two sections of the Act, sections 60 and 82, which stipulate how product recalls are to be regulated and enforced. It appears as though neither of these sections was complied with when the Product Recall Guidelines were ‘promulgated’ and this may render the Product Recall Guidelines unenforceable.

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Section 60(1) of the Act provides that the Commission must “promote, within the framework of section 82, the development, adoption and application of industry-wide codes of practice providing for effective and efficient systems”. From this wording, it is clear that product recalls must be regulated by an “industry code”. The section does not refer to ‘guidelines’.

Section 82 provides that the Minister (meaning the member of Cabinet responsible for consumer protection matters) may, by regulation, prescribe an industry code on the recommendation of the Commission. This section further provides that the Commission, acting on its own initiative or in response to a proposal from persons conducting business within a particular industry “may recommend a proposed industry code to the Minister”.

Nickig commented: “The Product Recall Guidelines do not constitute an ‘industry code’ and at present, there is no industry code which regulates product recalls. A further issue with the Product Recall Guidelines is that they were promulgated by the previous National Consumer Commissioner and not the member of cabinet responsible for consumer protection matters, as is required by the Act. 

“Accordingly, it can be argued that the Product Recall Guidelines have not been promulgated within the framework of section 82 of the Act, as is required by section 60(1), and are therefore of no force and effect. However, it would seem that until the Product Recall Guidelines are challenged, suppliers are required to comply with them.”

This is a result of the decision of the Supreme Court of Appeal in Oudekraal Estates (Pty) Ltd v City of Cape Town, 2004 (6) SA 222 (SCA) where it was held that an unlawful administrative act, as well as all acts and consequences flowing from such administrative act, remains in existence until set aside by a court in proceedings for judicial review.

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