Toy importer Deco Fashions to pay fines and costs $9,260 for 45,000 unsafe toys: Shell and Barnardo's had choking hazard teddy bears
Published14 Sep 2000
The Auckland District Court today ordered toy importer, Deco Fashions Limited, to pay $9,260 in fines and costs after it supplied 45,000 unsafe teddy bears to Shell New Zealand Limited and Shell donated some of the teddy bears to the Barnardo's Children's Trust.
Commerce Commission Chair John Belgrave said that the Commission had prosecuted Deco for breaching the safety standard for toys for children aged up to three. The standard is made mandatory by the Fair Trading Act.
"Parents of young children must be able to rely on the safety standard," Mr Belgrave said. "For the test to be whatever happens when a child plays with a toy is to invite a tragedy."
These teddy bears had seams that broke open easily and beads, with which the bears were stuffed, spilled out. The beads were a choking hazard to young children.
Deco supplied five container loads of the teddy bears to Shell. Shell sold the bears during a Christmas promotion through its petrol stations and, after the promotion, donated some of the remaining teddy bears to Barnardo's. Shell and Barnardo's have since recalled and destroyed the teddy bears.
Before buying the teddy bears, Shell had asked Deco to ensure that they met safety standards.
Deco contacted the manufacturer, Aragon Toys Malaysia Limited, and was told that samples of the toys had been submitted for testing. Deco then faxed Shell stating: "I am pleased to confirm that my Japanese manufacturer has submitted 6PCS of 32cm and 41cm sucker teddy bears for testing and that all safety requirements have been met".
However, Deco had not received results from the tests. Aragon Toys' managing director gave evidence in court that the tests were never carried out.
During the trial Deco argued that it was protected from conviction by the statutory defences set out in the Act. These defences are that:
it made a reasonable mistake
it reasonably relied on information provided by another person, and
the contravention was caused by another person's action or by an accident, and that Deco had taken reasonable precautions.
Judge Nicola Mathers rejected all three defences, stating that Deco's director had: "passed the entire responsibility of obtaining the safety tests to his supplier and he chose to take no further steps to ascertain as to whether the safety tests had in fact been carried out."
Judge Mathers stated that such a mistake by Deco could not be considered reasonable, there was no reliance on information from Aragon because it had not stated that the teddy bears met the standard, and Deco had not taken reasonable precautions to prevent a contravention.
In court today Judge Mathers accepted the Commission's submissions that a deterrent penalty was called for, and noted that the fine reflects the fact that the company is no longer trading.
Background
The product safety standard applies to toys for children aged up to three because children up to about that age do not have a coughing reflex when they choke. If they swallow or inhale an object that sticks in their throat, they do not cough and must be helped or they can choke to death.
If toys, or parts than can be removed or break off, fit entirely into a measuring cylinder then they are too small and do not met the standard. The cylinder is about the size of a 35mm film canister. The standard also includes tests to simulate foreseeable use and abuse of a toy. The Commission uses independent laboratories to carry out these tests.
The Minister of Consumer Affairs has the authority to make product safety standards mandatory under the Fair Trading Act. To date, there are four such standards. They are for:
toys for children aged up to three
cigarette lighters (these must be child resistant)
children's night clothes (fire safety), and
bicycles.
If goods do not meet these standards, courts can impose fines of up to $100,000 on a company and up to $30,000 on an individual.
