HANDMADE TOY SAFETY REGULATIONS – SELLING HANDMADE TOYS IN AUSTRALIA
AMC INSURANCE PTY LTD
HANDMADE TOY SAFETY REGULATIONS ARE A COMPLEX TOPIC FOR SMALL BUSINESS DESIGNERS AND CREATORS
In an effort to support our crochet and crafting clients we have investigated laws related to handmade toy safety regulations to help understand these risks. We are not lawyers and the below information is not considering your specific needs or circumstances. It is offered as a resource to help you undertake your own investigations.
SELLING HANDMADE TOYS IN AUSTRALIA
Our clients are creating their designs through various methods (i.e. crochet, knitting, sewing) from using various materials (i.e. yarn, fabric, etc.) and are therefore considered manufacturers of the products sold to their customers.
These products (i.e. Amigurumi, Dolls, etc.) are sold as toys, even if they were not intended to be used as toys (i.e. put on display, or, used as a keepsake) — from the perspective of Australian laws and regulations the intended use is not relevant. A simpler explanation is that if it looks like it could be a toy, then it is considered a toy.
The Legal Vision website states clearly the strict obligations that toy manufacturers are exposed to:
As a manufacturer of toys in Australia, there are several requirements you are required to meet. These requirements are found under Australian Consumer Law, including meeting the consumer guarantees in relation to the product and particular Commonwealth product standards relating to toys for children”
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Looking closer into the above the ACCC (Australian Competition & Consumer Commission) provide excellent resources on obligations to consumers (your clients). A very high overview is below and we recommend you investigate each section in more detail via their website (see “Products and consumer rights” section):
- Acceptable quality
- Fit for a particular purpose
- Matches description
- Matches sample or demonstration model (if applicable)
- Extra promises
- Repairs and spare parts
- Title to the product, undisturbed possession, no hidden debts or charges
The above rights and obligations also apply to yourself when you by products from other businesses. So, it is a good resource to familarise yourself in context of poor/negative product/service experience you may have had as a customer and considering recourse you might take if you suffered an injury or health issue from a product.
TOYS FOR AGES UP TO 36 MONTHS
If the toys you manufacturer are designed for ages up to 36 months of age then there are very strict obligations imposed on you at law+. As we are an insurance broker and not lawyers, we cannot offer specific advice on these requirements and will not attempt to analyse these risks. You can look into the details further via the Product Safety website managed by the ACCC:
+Consumer Goods (Toys for Children up to and including 36 Months of Age) Safety Standard 2023 — https://www.legislation.gov.au/F2023L01185/asmade/text
SPECIFIC STANDARDS AT LAW
In terms of meeting Australian Standards there are a lot of factors and exposures to consider. One such standard (AS/NZS ISO 8124 series) applies to mechanical safety, flammability, and chemical testing. Again, as these are complex topics we are providing broad overview of these obligations as a small business owner for your further investigation.
Some of these risks are managed through the use of product labels. The Australian Toy Association website is a fantastic resource. In particular for labels they provide a good overview via their website on:
- Age Grading and Age Labelling
- Cautionary Labelling
- Adult Supervision
WHAT IS THE MAIN IMPACT OF HANDMADE TOY SAFETY REGULATIONS ON YOUR BUSINESS
The biggest question in response to the above is how does this impact you if you fail to adhere to these legal requirements. The simplest explanation is that the products you create are at risk of causing injury or harm to someone. Toys being associated with children (whether intentionally or otherwise) increase that risk exposure as children do not have capacity to understand the dangers of an object. When a person is injured from a product or in an extreme case the product causes death then the individual, their family or a Government body may take legal action against the manufacturer of the product.
The following article from Clayton Utz Lawyers provides a technical question and answer response on the laws, risks and responses from product liability claims:
Some of the key points we feel are relevant to the manufacturing of toys are as follows with the first note emphasising that you will be considered liable at law:
Under the ACL (Australian Consumer Law), manufacturers are strictly liable directly to consumers for personal injury or property damage suffered due to a defective product.
The next point outlines who is deemed a manufacturer. A reminder that at law if you are buying materials from overseas suppliers (e.g. Temu, AliExpress, etc.) that form part of your product (e.g. safety eyes, yarn, etc.) you are considered the manufacturer for importing those materials. The repercussions of those materials being the cause of injury are emphasised below:
The definition of “manufacturer” under the ACL (Australian Consumer Law” is very broad. It includes, for example, an importer of goods if the actual manufacturer is not present in Australia, and a person who allows his or her brand or mark to be affixed to, or used in relation to, the goods in question.
One advantage as the manufacturer of a product, if it can be called that, is that you are not responsible for proving that your product caused the injury/damage:
The claimant bears the burden of proof. The relevant standard is that of the balance of probabilities.
This means that:
In negligence, contract and under most provisions of the ACL, the claimant has the burden of proving that the product was defective.
However:
Under the strict liability provisions of the ACL (the statutory warranty/guarantee and defective/unsafe product causes of action), the claimant does not need to prove fault, but must establish, on balance, that the relevant products are defective or not of acceptable quality. The defendant has the burden of proof in relation to any defence relied on or any new fact which the defendant pleads.”
We hope the above article provides useful information and resources for you to continue your own investigations into the risk exposure of handmade toy safety regulations.
Alex Conlon
Director | M: 0409 092 947 | E: alexc@abterrace.com.au
IF YOU NEED A INSURANCE FOR THE SALE OF TOYS PLEASE USE ONE OF THE FOLLOWING LINKS FOR MORE INFORMATION AND TO ACCESS THE APPLICATION FORM:
CROCHET/KNITTED TOYS (ONLY)
https://www.amcinsurance.com.au/insurance-for-crochet-and-knitting-2/
ALL OTHER TOYS (EXCEPT CROCHET/KNITTED)
EXAMPLES OF TOY SAFETY ISSUES
Even if companies have due dilligence processes to ensure the safety and quality of a product safety issues can still arise.
An example is within the following article from The Conversation providing details on the identification and recall of the childrens coloured sand that contains asbestos:
https://theconversation.com/asbestos-has-been-found-in-childrens-coloured-sand-whats-the-risk-to-kids-269796 The above product as detailed by The Conversation stated:- “The sand subject to the recall was manufactured in China and sold by several Australian retailers, including Officeworks and Woolworths.”
- That having insurance that is appropriately protecting your business for the sale / manufacture / import of toys is a crucial resource to help mitigate the probability of legal action / claims from consumers
- To understand the most insurers that are offering cover for the sale of toys do so with requirements that the products themselves are made to Australian standards. Any claims arising from a product that were not made to Australian standards run risk of being excluded by the insurance policy. It is therefore very important to consider where your products/materials are being purchased from and having appropriate risk management processes to mitigate against these exposures.
IF YOU NEED A INSURANCE FOR THE SALE OF TOYS PLEASE USE ONE OF THE FOLLOWING LINKS FOR MORE INFORMATION AND TO ACCESS THE APPLICATION FORM:
CROCHET/KNITTED TOYS (ONLY)
https://www.amcinsurance.com.au/insurance-for-crochet-and-knitting-2/
ALL OTHER TOYS (EXCEPT CROCHET/KNITTED)