Summary: For anyone who supplies consumer goods in the Australian market, at any stage of the supply chain. It is also for anyone who provides product-related services.
Published: 21 April 2013
Ruth Mackay: Welcome to this ACCC Webinar on mandatory reporting requirements under the Australian Consumer Law. I'd like to particularly welcome those people who have joined in from time zones that are far outside our own but thanks to you all for taking the time to join us today. My name's Ruth Mackay, I'm the General Manger of the Product Safety Branch at the ACCC. I'm going to be joined by John Jamieson shortly to give a presentation on mandatory reporting but first we're going to have a welcome message from our Deputy Chair, Delia Rickard.
Following Delia's introduction the presentation will then move on to have some questions and answers that we'll be answering live for you today. Before we get started though I did want to quickly run through some housekeeping rules. Firstly you'll notice down on the left hand corner of your screen that you've got a contact number for the Redback Conferencing Support, that is the number that you should call if you're having any technical difficulties and they'll sort you out and make sure that you can join us again as quickly as possible.
Next, in terms of asking questions when we get to that question and answer session, you need to press the Ask a Question link which is down there on the bottom right of your screen. You can actually do that now if you'd like to, or at any time during any of the presentations and they'll be queuing up for us to answer when we get to the appropriate point in time. Finally, it's not quite finally, I wanted to draw your attention to the Twitter link. If you click on that link, which is on the bottom right hand side of your screen you'll be able to follow our Twitter conversations. If you want to actually use Twitter to ask a question you can do that and you'd have to use the hash tag #prodsafe, which is just one word.
Now the final thing that I want to mention in terms of what's on your screen is that you do have a resource library tab and underneath that you'll find links to a range of our websites, the Product Safety Australia website, lots of information there about mandatory reporting, also our recalls website. Our mandatory reporting page links from that page as well and we also have there our mandatory reporting guidelines document, so that provides more detail about these reporting arrangements.
Finally there's a webinar survey which we'd really appreciate if you could fill in when we get to the end of the session to tell us about your thoughts on the seminar, anything you think we can do to improve future seminars. So that's all I wanted to say by way of housekeeping rules. So we'll move on now to the introduction by Delia Rickard. Delia Rickard is the Deputy Chair of the ACCC, she joined us in 2012. Immediately prior to this she was the Senior Executive Leader for consumers, advisors and retail investors at the Australian Securities and Investments Commission. She was also ASICs ACT Regional Commissioner. Now Delia is a former head of the ACCCs then Consumer Protection Branch and she was a member of the Secretariat to the Wallis Inquiry into the regulation of Australia's financial system. She was also a member of the Australian Payment Board for a number of years and she has been on the Steering Committee for all four ANZ National Financial Literacy Surveys. So we'll switch over to Delia now for her introduction.
Delia Rickard: What is mandatory reporting under the Australian Consumer Law and how does it apply to me? Does it apply to me? What does the ACCC have to do with it? Good afternoon, my name's Delia Rickard and I'm the Deputy Chair of the Australian Competition and Consumer Commission, or the ACCC which is Australia's Product Safety Regulator.
It's our job to help ensure that the consumer products Australians make, supply, buy and use are safe. Thank you for taking part in the webinar. Today we'll focus on the mandatory reporting obligations that suppliers of consumer goods have under the Australian Consumer Law. If you supply consumer goods in the Australian market at any stage of the supply chain this webinar's designed for you. Under the law, supplier means anyone in the business of selling, exchanging, leasing or hiring out goods. So this means suppliers can include manufacturers, importers, wholesalers, distributors, hirers and, surprise to some, retailers.
The law also extends to suppliers of product related services. So if you're in the business of delivery, installation, assembly, maintenance, repair or cleaning of a consumer product, this webinar's for you too. Suppliers have a legal obligation to ensure that the consumer goods they sell are safe. We recognise that suppliers want to do the right thing and don't want to supply unsafe products or hurt people. However when there is an incident, suppliers also have an obligation to report to the ACCC any death, serious injury or illness associated with a product they supply or a product related services they provide once they become aware of it. This is called mandatory reporting.
When the Australia Consumer Law came in on 1 January 2011 the mandatory reporting regime was introduced as part of an effort to strengthen Australia's product safety laws. Mandatory reporting protects consumers from dangerous products and prevents further harm by identifying products that may need to be taken off the market or made safer. It's helping to achieve a safer consumer goods market for everyone in Australia. Also it makes good business sense, if you don't he make a mandatory report to the ACCC you may be liable for a penalty.
If you do make a mandatory report, it's not admitting liability, nor declaring that your products are unsafe. Our experts, Ruth Mackay and John Jamieson, from the ACCCs Product Safety Branch will clarify your obligations and rights as a supplier and explain when you need to report an incident, how to report it, why you should report an incident and what happens if you don't. So, without further ado, I'll hand you over to the presenters. Thank you.
Ruth Mackay: Well thank you Delia you for that pre-recorded introduction. Now as I mentioned earlier it's time for us to go through our presentation. I'll be giving that presentation together with my colleague John Jamieson. To begin we'd like to just give a little bit of background, firstly about the role of the ACCC in relation to product safety and then to the mandatory reporting provision itself.
Firstly in relation to the ACCCs role. The ACCC is a statutory authority and we're established by the Competition and Consumer Act, now this act contains some key provisions relating to product safety and essentially one of those is there's a set of consumer guarantee provisions meaning that one of them is that goods have to be of acceptable quality. To be of acceptable quality, goods that are sold in Australia have to be safe. Other important provisions are that the Commonwealth Minister has the power to create mandatory standards and bans in relations to consumer goods and to order compulsory recalls.
Finally the Act establishes a range of reporting obligations or two important reporting obligations for business. The first of those is that safety recalls must be reported and secondly incidents of serious injury, illness or death that are associated with consumer goods have to be reported. That latter provision, of course, is the provision that we're talking about today, the mandatory reporting provision.
So the ACCC's role in relation to this, is to make recommendations to the Minister about standards and bans and compulsory recalls. The ACCC enforces the requirements of the Competition and Consumer Act, that's all of the Competition and Consumer Act of course, not just the parts that relate to the product safety provisions. The ACCC receives the recall and mandatory reporting notifications and we provide guidance and assistances to businesses in relation to those. We conduct education programs about product safety.
An important part of what we do is try to identify new hazards emerging in the market place and we undertake surveillance activities to identify problems in the market. We have offices around Australia, the ACCC has product safety offices in every capital and also to other places and we have product safety officers in all of the cities that are listed on the slide. Last couple of things I'll quickly mention about the ACCC and its relationships is that we work closely with State and Territory Fair Trading Officers because they also enforce Schedule 2 of the Competition and Consumer Act. That Schedule is known as the Australian Consumer Law and contains quite a lot of the product safety provisions.
The Treasury actually has competition and consumer policy responsibilities so I hope that sets the scene for you in relation to product safety generally within Australia.
In relation to mandatory reporting in particular, a little bit of background there. The Productivity Commission released a report into consumer product safety in 2006 and that report recommended a wide range of reforms both legislative and non-legislative and one of those was this new mandatory reporting obligation. Those reforms were endorsed by the Council of Australian Governments in 2008 and these together with a wide range of other Australian Consumer Law reforms led to the Competition and Consumer Act including the Australian Consumer Law and all of that commenced on 1 January 2011.
For those of you - many of you will be aware that the Competition and Consumer Act replaced the Trade Practices Act. Just one further little bit of background in relation to the legislation, that is that there will be a review of the Australian Consumer Law, as is normal practice for Government and that review is going to be taking place by 2018. So there'll be an opportunity for people to comment on how they think the new requirements are working at that point. But for now we'll move on. Sorry there is a little bit more from me.
That is the last little bit of rationale for the mandatory reporting requirement itself. Now the mandatory reporting requirement was considered a very very important thing to introduce to fill a gap in knowledge for regulators. The Productivity Commission noted that whilst there was some information, in health systems and hospital systems it often lacked detail about the actual relationship with the product. There were also difficulties around actually assessing that information.
The Productivity felt that that was really cost prohibitive to address the issue of getting the hospital data to work very well for product safety. It noted that often businesses had a lot more information about the safety of goods than Government did. So it saw the imposition of a reporting requirement as a cost effective way of providing Government with access to much broader and more timely information about product safety problems. The intention was to improve the responsiveness of the regulatory regime to existing and emerging product related hazards.
Now John is going to explain that mandatory reporting obligation for us.
John Jamieson: Thanks Ruth, well mandatory reporting, what is it? The requirement can be summed up as saying that suppliers must notify the ACCC if they become aware that a consumer good that they supply may have caused death or a serious injury or illness. Now the reports must include details to the extent known about the product, about the death or injury and the supplier's response. Those reports have to be provided within two days. So I'll just talk about all of those provisions as we go through but I'll start with the two days requirement. The first thing to say is that it's not 48 hours it's actually two days. The first of those two days is the day after you become aware of the incident. Day two is the following day and so the report is due by midnight of that second day.
If the report falls due on an Australian public holiday or on a weekend then you actually get until the next business day to provide the report. At this point I'd refer you to our guidelines which are available through the webinar resource library for more details on that two-day reporting requirement. Our guidelines actually include a table that helps to explain the complexities of those two days.
When to report? Suppliers are required to report the death or serious injury or illness of any person that they became aware of. What does awareness mean? Well it means that the organisation becomes aware and this is whenever anyone in the organisation is told about a reportable incident. So it's not just when the CEO or General Manager finally becomes aware, it's anyone in that organisation. It also means that whenever the organisation receives a letter via mail or via email or a fax or indeed social media that informs them, makes them aware of a reportable incident, the two days and the reporting requirement start then.
This means that suppliers need to have a system in place to ensure that they can firstly gather that information for reporting and also comply with the two-day reporting time frame. Whilst this means that some suppliers have had to improve their reporting systems, the ACCC has had feedback from several suppliers telling us that they have seen benefits from that improved system. The sorts of things that they have seen is they now have better knowledge of their customers and better knowledge of their products and thirdly that the improved systems means that they are in a better position to respond to problems.
So suppliers are required to report the death or serious injury or illness of any person that they become aware of and that someone believes was caused by the use of a consumer good. So there are two parts to that. The first one is that someone believes and the second bit that I'll talk about is use. So someone believes, effectively that means that for reporting purposes in any case, effectively means the customer is always right except in some very very extreme cases where their claim would be considered implausible.
However just because the consumer believes that the injury was caused by the use of your product, doesn't necessarily mean that the ACCC treats the report as an admission of liability and in fact we'll talk more about that we are unable by law to do so. However even though you're reporting an incident and you may have doubts about the claim from the consumer, you can certainly tell us about that. If you believe that there are circumstances or information that we should know about please include that in the report.
The second issue is use, what does use mean? Well the legislation explicitly states that use includes foreseeable misuse. What this means in practice is that you need to report incidents even if someone used your product in a way that you consider inappropriate. The third element that we'll talk about is that suppliers must report incidents involving goods that they supply or services related to the supply of their goods. This means that you may need to report even if you didn't supply the actual product involved in the incident. So long as you do supply products of that make or brand and model then if you hear about a reportable incident then you are obliged to report it.
This also applies even if the incident occurred outside Australia. For instance you may have heard about it from other suppliers or from other corporate officers overseas. However you only have to report the incident once and that's the first time that you hear about it, not each time that you subsequently hear about the incident. I'll now hand back to Ruth who's going to talk about who needs to report.
Ruth Mackay: And the answer to that is all participants in the supply chain of the consumer good and its related services. Now this was something that caused a lot of interest I've got to say, when this requirement was first introduced and there was concern that the fact that all players in the supply chain were required to report would mean that we would get inundated with reports and that there would be many, many duplicates. This was seen as potentially a big problem for the scheme as a whole.
Now two important things that I'd like to mention there. The first is that although that was a concern and no one really knew whether it would or wouldn't eventuate. The last two years has shown us that it hasn't in fact been a problem, we haven’t had a large number of duplicate reports coming into the system, so it hasn't turned out at this stage anyway, to be the problem that people anticipated it might have been.
The second thing is there was actually something done to try and address that concern. We established a mechanism through the guidelines to establish an agency arrangement. Such an arrangement allows suppliers to report on behalf of other suppliers. So they just need to nominate who they're reporting on behalf of at the time they make that report. So it is possible to avoid duplication if you're concerned about that by reporting on behalf of a range of known other suppliers.
There's a lot more information on that in the mandatory guidelines which as we've already pointed out a couple of times you can find either on the Product Safety Australia website or right now you can find them in that resources library on your screen. Now John was just going to give you a bit of information about who actually has been reporting to date.
John Jamieson: Thanks Ruth. Well most reports have been submitted from larger business, roughly 40 per cent of our reports are from manufacturers, 40 per cent from retailers and 20 per cent from other suppliers in the supply chain. So this breakdown is consistent with what we know about complaints but consumers, generally speaking will complain to the brand owner or manufacturer or to the place where they bought the product. So those statistics are not actually terribly surprising. However we are aware that we still have some work to do in relation to small businesses.
Some of the things we have been doing to increase compliance from small business is this webinar is a good example, but we're also promoting compliance with community pharmacies, we issued a bulletin for service technicians in April last year and there are other bulletins in production. We've also in several cases, warned our small businesses where they may have reported late or failed to report. We would take a fairly dim view of repeat cases. If you have queries about our enforcement policy we clarify that in our guidelines, again they're available via the resource library. Back to you Ruth.
Ruth Mackay: Okay, next thing we wanted to cover is the question of what are consumer goods. So you can see on the slide there that consumer goods are goods that are intended to be used or are of a kind likely to be used for personal, domestic or household use or consumption, doesn't include industrial goods. Now a couple of things again that I wanted to point out in relation to this. It hasn't been a particularly difficult area of the new provisions.
The one thing that we really have had some questions around coming from franchisees, was whether or not component parts or suppliers of component parts needed to report incidents that occurred with the finished consumer good. We've clarified that no, you do not have to report if you are the supplier of a component part to a finished consumer good. So, for example if you are a supplier of motors to washing machine manufacturers and you hear of an incident associated with a washing machine, you aren’t obliged to report that, but all of the people in thing supply chain who are associated with the finished good, the washing machine, are required to report that.
Now, the last thing that I wanted to mention there is just to clarify that the ACCC is not the only regulator in consumer product safety areas, there are specialist regulators in relation to food, in relation to motor vehicles, therapeutic goods and a range of other areas. Now this reporting requirement relates broadly to consumer goods, it covers the goods that are in fact regulated by those specialist regulators. You still have to report any incidents about those consumer goods into the ACCC. So it's all consumer goods regardless of whether or not you think the ACCC is the regulator you'll end up working with you on a problem associated with it or whether it's some other specialist regulator.
You'd have heard us mention that this provision also covers product related services. This means that you're required to report if you provide a service that's associated with the consumer good. For example, you might install the consumer good or you might perform maintenance on it, such as repair or cleaning services. So you are also caught by the regulation and would need to report incidents that you become aware of.
Some examples, if you are the installer of curtains into a consumer's home, or blinds into a consumer's home, and a child or anybody was injured in relation to that. You may well know that there have been some very, very sad incidents of deaths associated with blinds in Australia and overseas. If you were the installer of a blind and you became aware of such an incident or any serious incident associated with a blind, you would have to report it. You'd have to do that regardless of whether or not the incident had anything to do with the service that you supplied.
The fact is that there was an incident associated with the consumer good, you have to report it if you're a service provider. Another example would be if you were a service provider who repaired fridges or cooling and heating systems in people's homes. There's an incident associated with one of those goods, you have to report the incident even if it wasn't anything around your service that caused the problem or might have caused the problem or might have caused the problem. The fact that there was an incident associated with the good and you provide a service in relation to the good triggers the requirement. Over to John.
John Jamieson: Thanks Ruth. One of the requirements for the mandatory reporting or one of the triggers for mandatory reporting is the level of injury that you need to report. You only need to report deaths, serious injury and illness. Now serious injury and illness is defined as an acute physical injury or illness requiring medical or surgical treatment by or under the supervision of a doctor or nurse. So I'll just talk about a few aspects of that definition. What do we mean by acute, well I guess what's not captured there, for example, are long term exposures to substances in consumer goods that may cause a chronic disease such as cancer. Those things are not reportable and the rationale there is that those sorts of illnesses and the information about them are captured elsewhere in Government, so there was no requirement to duplicate those mechanisms in this scheme.
However if a consumer good causes a death or acute injury or illness requiring medical treatment of a person with a pre-existing sensitivity, then this is reportable. If a person with a pre-existing allergy for instance to a substance, if they suffer an anaphylactic reaction after contact with a consumer good that contains that substance, a report to the ACCC would generally be required. Another aspect of the definition is that it only mentions doctors and nurses, so other health professionals such as dentists in particular but other health professionals as well are not captured.
This medical treatment test was chosen as a very clear and measurable threshold, however we have to acknowledge that sometimes less serious injuries are treated by a doctor or nurse, however in those cases, they still need to be reported. On the other hand however, if you as a supplier can know that there was no treatment then you don't have to report. Also we've had questions from suppliers around whether or not or the level that suppliers need to gather medical information. It needs to be said that the requirement does not authorise suppliers to obtain medical records from customers or from doctors.
The other aspect to the requirement is that near misses where there was no actual injury don't need to be reported. However voluntary reporting mechanisms are there and they are encouraged. Non-serious injuries, ones that don't require medical treatment by a doctor or nurse don't need to be reported. There are some exemptions in the legislation.
When isn't a mandatory report required? The first one to say is that someone must report the incident under another law or industry code and that law or industry code is specified in Regulation 92 of the Competition and Consumer Regulations, then you don't need to report it. So for example, therapeutic goods, most motor vehicle accidents and pesticide injuries don't need to be reported because there are existing reporting schemes for those products.
Food has been an area of contention or confusion. The reporting requirements for food injury varies across Australia. So in South Australia, the ACT and Tasmania for instance, doctors must notify any cases of food borne illness and suppliers are exempt if there is a food injury in those states or territories. Elsewhere in Australia those requirements don't apply, but any food related notifiable disease is exempt since that is already reportable for instance by the testing laboratory.
The other exemption is that where the incident was clearly not, and by this we mean highly unlikely to have been caused by the use of the product. One example, is for instance, food poisoning from beer, which because of its nature is highly unlikely to cause you actual food poisoning. We won't go into what other kinds of injury you might get from beer. Another example is, for instance, diarrhoea from eating food. If the consumer believes that eating food caused them diarrhoea and it happened within 30 minutes of eating the food then microbiologically speaking, that's highly unlikely, so that would be a case where that would not be reportable.
Keeping on a food theme, the ACCC helps the Australian Food and Grocery Council develop their guide for the food industry in relation to mandatory reporting in 2011. So we would refer people to that guide as well. Food reports are now automatically emailed to the relevant food safety regulators. This has been happening since February last year. We've got further work under way with food safety regulators in Australia to try and reduce the level of unnecessary reports because there has been some confusion about what to report and what not to report, particularly in relation to minor injuries.
We're also encouraging more detail to be provided in reports, where we're asking suppliers to provide all the information that they have available at the time that they're submitting their report. This work will involve further consultation with suppliers and this will happen later this year. Over to you Ruth.
Ruth Mackay: Well I'm about to go on and talk about liability and confidentiality but just before I do I wanted to remind you that you could be lodging questions right now if you had any to ask. We might have said something so far that wasn't quite clear enough for you, it might have triggered a thought. Feel free to send those questions in and they'll start to come through to us on this tablet, we won't answer them until we get to that end question and answer session, but if you're sending them in now, that's possible for you and perhaps helpful for us as well. Think of questions if you'd like to and send them through.
Again before I start completely talking about the liability and confidentiality provisions I wanted to say that the mandatory reporting provisions themselves were not intended to only capture information about incidents where the product was completely at fault. They are fast provisions where you're reporting something where someone believes there was an association very quickly. There's going to be many occasions where consumer behaviour contributes to a problem, sometimes it will contribute a little bit sometimes it will contribute actually quite a lot.
All of that information when it comes into us through mandatory reporting is very, very helpful for us as regulators. For example, many of our regulations are in fact about putting warning labels on products so that we tell people how they should behave in relation to the product, not to use motor vehicle jacks inappropriately but to use motor vehicle support stands. So it's very, very relevant information for us to know when behaviour as well as a product, are associated with incidents. Just thought it was useful to make that note before going on to talk about the liability and confidentiality.
Now it was the case that when this provision was first discussed and the draft legislation was out, there was quite a degree of concern in the business community that mandatory reports would become public and that they'd unfairly tarnish a product or a suppliers reputation because people would assume that in fact the product was at fault. Now the legislation did clearly establish that a report isn't an admission of liability but there were additional provisions added into the legislation as it made its way through parliament to try and allay these concerns.
Now it's very, very clear in the legislation that reports do have to be treated in confidence. They aren't published on a public database and they won't be released under freedom - when there are freedom of information requests.
Now there are certainly some exceptions to these confidentiality requirements but they are very, very strict. Now, at a practical level, you might have noticed if you've already lodged a mandatory report with us and it's been for something such as food, that you would have found a checkbox on that mandatory report form which allowed us to pass on that mandatory report to the regulator that actually has responsibility for that particular area. Now where you haven't given us permission to pass a report on in such a way we actually have to seek agreement from the assistant treasurer, asking him to exercise his discretion to allow us to pass the information on to the relevant regulator. So they're very, very strict provisions and they're taken very, very seriously by us.
I want to point out that when we do disclose information to another regulator, because the vast majority of times people in fact check the box and appreciate that it's important for the information to go to an appropriate place that the confidentiality provisions apply to that information wherever it is in government. So the same level of confidentiality has to be applied to that information and it won't be released by another regulator other than the ACCC.
Now the reality has been that in the two years, or more than two years since we've had the provisions, we have only asked the assistant treasurer to disclose a report to another regulator on a very small number of occasions and we haven't yet actually felt it was necessary for us to do our job, to ask the assistant treasurer to disclose that report publically. So information that has come in has remained confidential and there haven't been incidents where we generally have had to let people beyond those, within the organisation who are working with them, know the nature of those reports. Now this does mean that there's some restrictions in what we're able to tell you about the scheme itself. So we'll be getting to those slides in a few minutes.
You'll see there that whilst we could tell you some of the impacts of the legislation the amount that we're able to talk about is limited because of these confidentiality provisions.
Penalties is the next topic. They exist; they're up on your screen. The penalties, of course, are for failure to report. Now we do become aware of failures to report. So you shouldn't assume that we would never know. We do find out. People know that the ACCC and other regulators are interested and concerned and doing something about safety issues and so we become aware of those incidents through other sources and talk to people and they will mention that they have been back to the business and told them about the incident. We have a range of other, actually, consumer organisations who have informed their members about the obligations.
So, there's some mechanisms out there which are encouraging people to come to us with this information. So you shouldn't assume that we wouldn't know about it. In fact, to date we have issued quite a few warnings in relation to late or non-reporting. We are in fact considering whether to pursue penalties in some cases. Time is marching on; a couple of years have passed. It is important that people understand their reporting requirements and it is important that you report.
John Jamieson: Thanks Ruth. All right, well I'm going to talk now a little bit about the process, in terms of how do you make a mandatory report. Well, reports are submitted online. The link is on the slide and you can also reach that link through the resource library. Once you submit an online report, every single report is acknowledged automatically, it's issued a number, MR number, and the email includes all the details that you've submitted. So you will have a record of what it is that you've told us.
I would encourage you to answer every question in the online form. If you don't know the answer then say, you don't know it at this time. Certainly we would encourage you not to delay reporting beyond the two day limit while you wait for more information about the incident. Apart from putting you in breach, or potential breach of the legislation, it also means that that delays us getting information and that's the whole intention of the scheme - is for us to get information quickly. In most cases the more information that you provide to us in that form, the less likely it is that we will need to contact you again. So, in fact, it's less burden for everyone.
I'd also add that we wouldn't want you to delay through some sort of suspicion on your part of misuse of the product. As I said, the requirement to report applies equally if the product has indeed been misused. However, if you do obtain more information about the product, or about the incident, you can provide that to us later on. So there are mechanisms for you to provide updated information.
Okay. How are the reports, once they're submitted, handled by the ACCC? Well, every report is quickly screened and prioritised and this happens within one working day. If we need to contact you for more information then we will. So typically that means that there was insufficient information in the report for us to do that rapid screening and prioritisation. If it's unclear about what product it is that we're talking about, or the level of injury, for instance, then we will need to contact you. Our main job in mandatory reporting is to monitor your response to the injury.
So the scheme is not about you telling us about an injury and then leaving it to us to deal with it, the whole intention of the scheme is to encourage suppliers to provide remedy where appropriate.
High risk reports, or trends, initiate more work on our part. In some cases, indeed, we'll talk more about it later, a mandatory report can, indeed, lead to a recall. But that's only in some cases. If we do have concerns, and if we do think that we need to take action, you'll be the first people to know.
I'll hand back now to Ruth who will now talk about our experiences with the scheme so far.
Ruth Mackay: Okay, great, thank you John. So two years under our belt, or over two years, 27 months of the scheme, and we have found that we are getting a wide range of reports in relation to a variety of consumer goods, food, cosmetics, toys, clothing, many other products. You can see - all types of product you can see listed on the screen there. We're also getting a broad range of injuries. There have been deaths reported. We've had amputations, cuts, lacerations. A full range of - a broad range of injuries have been coming through in that reporting.
You can see there that we're saying - about seven per cent of the reports have been assessed as having a higher safety risk, 93 per cent with a lower risk within that serious scale that John outlined earlier on. So at that lower end of - sorry, at the higher end of injuries we're seeing, of course, the deaths, we're also seeing an anaphylactic shock, third degree burns, amputations and so forth. The lower end however has included - we're defining that as things such as cuts, rashes, lower degree burns on a smaller area of the body and so forth. But I want to point out that even where the injuries are at this lower end of the serious scale it's very important information for the ACCC to receive.
Of course, consumers are not expecting to get even small injuries associated with consumer products, or less severe injuries associated with consumer products when they purchase something. So it's very important that we have that information and we look for trends to identify whether incidents were just in a very small minority, or one offs, or whether or not there is actually an issue with a larger number of people getting a smaller injury in relation to particular types of products.
So here is a graph, setting out how many reports we've been receiving on a monthly basis over these last 27 months. You can see there it's around about 191 a month. More than 5000 over the 27 months. Quite a large number of these are, in fact, related to other regulators. So 50 per cent of them, as long as we're allowed to refer them on, have been referred on to other regulators.
Now you can see here too there's been a steady increase over the first couple of years of the scheme. There's a little bit of a drop off in notifications over the last recent months. I think that's probably because of the work that we have been doing with some industry associations, clarifying the reporting requirements. There was probably a little bit of reporting that wasn't necessarily needed taking place. So that probably is responsible, as I say, for that drop off in numbers. We had 2647 reports received in 2012.
Now in terms of outcomes, is it working, well yeah, there are some very good things about the mandatory reporting scheme from our perspective. It is starting to function as an early warning indicator. It's letting us know about things that we wouldn't have known about at an earlier point, as was intended. We found when people come in to talk with us, or when they have to make their report, I should say, and we talk to them, some suppliers are really on top of it. They know what they need to do, they know how to manage it and they're completely in control and managing appropriately when an issue has arisen like that.
Others are not so well prepared, don't really know what to do, don't really know how to handle it. We're able to be in there in those situations, assisting people with the proper handling and appropriate handling of that matter, as well as giving us information about what's going on.
Now we actively monitor recalls that come into the system, the ones that we have responsibility for. There's around about five of those a week. The mandatory reporting information is allowing us to know, or give us better information, about where we really need to be paying attention to that monitoring, where we really need to be providing some assistance and some oversight.
We also have done a number of standards reviews, and that's very important information for us about how the regulations are working. Are people still being injured by the things that we thought we were addressing through the regulation or are injuries occurring in other places. It's allowed us to develop some education campaigns. You can see we did one very large one focused on do it yourself equipment and it also has assisted us in targeting our compliance activities.
Then finally the last slide, I've got some numbers associated with outcomes of the mandatory reporting. I can tell you that it's become one of several sources of useful information for us. We had 451 recalls published in 2012, 263 of these were recalls that were actively managed by the ACCC and the others, as we've been identifying earlier, were for other regulators. Now mandatory reports were associated with 23 of those 263 recalls, so about nine per cent of recalls have resulted from, or are related to, mandatory reports. Or recalls that are relevant to us, I should say.
Now I don't know whether that surprises you, I suspect that it may. You might think that there needs to be an injury before people are recalling products, of course, that's not the case. Businesses will come across a wide range of information which suggests to them that there has been a problem with their product and they need to get it off the market. There doesn't have to have been an injury. So many, many businesses, as I say, act very responsibly and as soon as there's an indication that people may be injured by a product they step in and do the right thing.
Now of these 263 recalls that were managed by the ACCC, 162 of those were initiated by the supplier without the ACCC involved. But there were 101 where the ACCC was very actively involved in the suppliers' decision to recall the product. Of that 101 where the ACCC was involved in negotiating the recall, 16 of those were mandatory reporting cases. So you can see that that's a decent chunk of valuable information for us that's allowing us to be involved in products that really do need to be recalled. The slide that's up in front of you at the moment is showing you what some of those other sources of information are.
The surveillance is when we're out in the marketplace, looking for problems. We get complaints and identify the need for negotiated recalls there. We look at all of the other recalls, or the recalls that are taking place overseas, and see whether or not that product is in the Australian market, and we also get referrals from other regulators.
So I hope that's given you a bit of an idea about the mandatory reporting outcomes and the mandatory reporting requirements in general. This actually brings to an end the presentation that John and I have had for you this morning and we're going to move now into our question and answer session. So I see we have had a couple of questions coming in already and can I remind you if - that you can lodge them through your screen, there's a button on the lower right hand side I believe it was. Or you can use the hash tag #prodsafe if you're on Twitter, and send in a question that way.
Now [Melissa] has sent in a question. Thank you Melissa. She asks John in particular, I feel fairly confident, if you are the franchisor and a food poisoning incident occurs from a product sold within a restaurant and the customer requires medical attention, are we required to report that food poisoning incident to ACCC under a serious injury?
John Jamieson: Well, I think there are a couple of elements to that question. One is firstly that someone probably is required to report that, unless it can be determined that that incident happened in South Australia, the ACT or Tasmania, where that foodborne injury would have been required to be reported by the doctor, then somebody would need to report that. So the franchisee would have an obligation there. Would the franchisor have an obligation? Well, if they become aware of it, quite likely. The only reason that they wouldn't, or may not need to report that, is if they do not indeed supply the franchisee with finished consumer good. So if they only provide the franchisee with ingredients and not finished consumer goods, then they wouldn't have an obligation.
Ruth Mackay: Okay, thank you John. Our next question is a very straightforward one; will I receive a copy of this presentation? Actually, what I'd say in relation to that is this is being recorded and so the presentation itself, or the full webinar, will be available to you at a later point in the next few days that will come up via the same - via the Product Safety Australia webpage. So you can look again at us. If you'd like to receive the presentation itself, perhaps you could let us know that in an email and we can discuss that with you.
All right, [Geraldine Batty] asks, does this reporting cover food allergic reactions to packaged and unpacked food due to lack of correct labelling, or incorrect labelling, or allergen cross contamination?
John Jamieson: Okay. The first thing to say is that the reporting requirement applies irrespective of what is or is not on the label. So whether the labelling is correct or incorrect has no bearing on a requirement to report. Whether it was allergen cross contamination in terms of what may or may not have happened in the production of the food, again, that's irrelevant. It all comes down to whether or not the - someone was actually seriously injured from the use or consumption of the food. So the short answer is yes it does apply. Food allergic reaction, if it requires medical treatment by a doctor or nurse, then yes, you would need to report it.
Ruth Mackay: Okay, thank you John. Thank you to [Liz Anne Bull], who has asked us, if we sell a product that has been safety tested to an age such as eight years, if that child takes the item home and a two year old uses it and is hurt by it, does it negate our responsibility as the item was advertised for eight years? No, it doesn't. The issue is that that is a consumer product, there is an injury associated with it and so you are required to report. It's important information for us. It relates to something I was saying earlier. If we know that that's happening on many occasions then we can target awareness campaigns to parents and carers, alerting to the fact that they've got to be vigilant around children accessing products that aren't intended for them and the dangers associated with it.
So you do have to report incidents when they occur, regardless of the age.
John Jamieson: Ruth, if I can just add, there's a bit of a common theme there with the questions. The whole issue of liability and whether the product was at fault has no bearing on the actual reporting requirement. It may have a bearing on the future - or the response of the supplier to the issue itself but it doesn't negate the responsibility to report.
Ruth Mackay: Okay, thank you. Melissa has asked if a franchisor based in Australia becomes aware of a reportable incident in New Zealand, would they be required to report the incident?
John Jamieson: Thanks Ruth. The short answer is yes. If you become aware of it, it doesn't matter if it happened in Australia or anywhere else in the world, you need to report it.
Ruth Mackay: Okay, thank you. Thank you very much everyone for sending in these questions. I hope we will get to all the questions that are sent in, but if not, we will get back to you in the next week or so. So do feel free to keep sending those in.
Now we've got a question here from [Sean], thank you Sean for sending it. A mandatory report may lead to an investigation about a potential safety hazard. My question is about when to initiate a national product safety recall. Is the key driver for initiating a recall based only on a comprehensive safety risk assessment conducted by the supplier? Is there any ACCC guidance available? Thank you.
John Jamieson: Thank you Sean. In terms of whether or not an incident leads to a recall there is no automatic assumption that a mandatory report will lead to a recall and I think the statistics bear that out in that there are several thousand mandatory reports and, I think, 23 recalls associated at least last year, with mandatory reports. The whole issue about when does a safety issue require a recall, I don't think we can give you categorical information or guidance on that. However, we do have product safety recall guidelines. You can talk to our recalls team at any time as an issue develops. But I think the overriding thing there is that if other consumers are at risk and the issue is not trivial, then a recall should be considered.
Ruth Mackay: Thanks John. I might just add into that, that there is guidance available. I think that was the last part of your question there. We, in fact, have recall guidelines. You can get to those either in that resource library - actually, sorry, the guidelines aren't there but the link to the recalls website is. On the recalls website you'll find guidelines in relation to recalls. We're also very happy to talk with you, if you contact us, and we can talk through things in a bit more detail.
John Jamieson: I might also take that opportunity to plug our recent supply bulletin that we developed for suppliers on how to conduct a successful recall. You will also find that from the website.
Ruth Mackay: Okay, thank you. So [Adele] asks; what if the consumer product is registered with Therapeutic Goods Administration and the company has already reported the incident to the TGA. Does the company still have to report to the ACCC?
John Jamieson: Thank you Adele, that's an easy one. The answer is, no you don't. Reporting to the TGA exempts you under the law.
Ruth Mackay: Okay, thank you. [Winston] asks; if we, as a retailer, file a report from a customer complaint and we also advise the supplier that we have had a reportable incident, is the supplier also required to submit a report when we have already done so?
John Jamieson: Okay. Sorry, I just thought I would read that again. The short answer is that yes, you do have to report. Each supplier in the chain, once they become aware, are obliged to report. We do get a certain percentage of duplicate reports from different people in a supply chain for a given incident. If you are concerned about the duplicate reporting you can establish an agency arrangement that would allow you to report on behalf of others, or for someone else to report on your behalf.
Ruth Mackay: Thank you. A question from [Jayanthi]. She says does this mean all food ingredient manufacturers are excluded from reporting?
John Jamieson: If you're a food ingredient manufacturer that doesn't supply directly to consumers you don't have an obligation to report.
Ruth Mackay: Thank you. Paul Robinson asks, if the product is regulated by another regulator, do you pass on the incident report to that other regulator? What's the process? If the report is passed on do we additionally have to notify them as well? For example, various state electrical safety authorities.
John Jamieson: Okay. In the case of electrical incidents the reporting to the ACCC does not satisfy any requirements you have under state legislation to report electrical safety incidents to state governments. However, in practice we find that we do get numerous reports of electrical safety incidents that we do refer to state electrical authorities and we rely on their expertise to assess the risk and to talk with the supplier around any remedy that's required.
Ruth Mackay: Thanks John. Greg d'Arville has got a question. Hello Greg. Does the commission have knowledge of the number, actual or estimated, of reportable events where suppliers have not complied with this requirement and has the commission taken action in relation to any such compliance failure?
So this is one where yes, we do know a number of occasions where people have not reported. We've issued quite a few warning letters in relation to those areas of non-compliance. We'll look very, very seriously at any future non-reporting, so the people who have received warning letters would be less likely to receive another warning letter if there was a further incident. We have been considering whether or not to take any further action in relation to some. So we have been taking compliance action in relation to failures. Greg's a former officer of the ACCC.
Nick asks, an intended industrial good only that has made its way to the consumer market for some reason not intended by the manufacturer, would it require reporting due to incidents?
John Jamieson: Well, I'll take that one if you like. The short answer is that it's probably not required to be reported by the manufacturer, but whoever did supply that product to the consumer would have an obligation to report it.
Ruth Mackay: Thank you. We've got a question from Paul, who asks re injuries, what happens in the workplace where the workplace health and safety authorities are involved on a mandatory basis, where consumer type goods are in question with respect to injury?
John Jamieson: In that case there is non-exemption from mandatory reporting because of involvement of a workplace safety regulator. However, if the incident doesn't actually involve a consumer good, or the use of a consumer good, then it's not reportable.
Ruth Mackay: Okay, thanks John. A question from Jayanthi again, who wants to clarify an issue such as seeds in fruits that could be a potential threat to teeth health. The product can be labelled as containing stones, so have we got to report if any complaints are lodged by the consumers?
John Jamieson: The answer here again is that any labelling, the absence of it or the presence of it, does not impact on the requirement to report. So if a consumer is damaged, or sorry, injured, because the product contains stones then if they require medical treatment by a doctor or nurse, then that would require reporting to the ACCC.
Ruth Mackay: Thank you. Lots of food questions today. Here's another one from Sue who asks if a food product has an allergen listed on the label, but someone with an allergy to the allergen consumes the product, presumably do they need to report?
John Jamieson: This is very similar to a previous question, yes, they do need to report. Again, it doesn't matter whether the allergen has been declared or otherwise.
Ruth Mackay: Okay. Helen asks, in regards to her needs to report, if a supplier advises the retailer of a serious injury is the retailer required to report the incident if the supplier has already done so?
John Jamieson: The answer to that is yes they have, unless there is an agency relationship that's been established.
Ruth Mackay: Okay. Look, I see that we're coming to the close time for the seminar. We still have a number of questions here, I'm not entirely sure how many. I see Jayanthi though has been very active on the questions, well done you. We'll get back to you with answers on all of those, and to anybody else who sends us a question and we've not had an opportunity to answer them today.
But a last couple of things I wanted to say before we go. Please do remember to do our survey. It's under the resource library. We really would appreciate hearing from you about how you found this session, whether or not there are things that we could do in future to improve similar sessions that we may run. To remind you again that you will be able to access this presentation in a couple of days via the Product Safety Australia website in the link. Yes, we'll get back to the people we've not answered with answers to their questions.
Sorry about that, I just needed to check my timing. But that is indeed the end of our session. Thank you very much for tuning in to listen to us today, if you tune in when you're on your web. Thanks for being there anyway. Really appreciate your time. If you've got any further questions do get in touch with us, we'd be more than happy to help you with your mandatory reporting questions.
John Jamieson: Yes we would, thank you.