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Foodstuffs (Embedded Items)

4.26 pm

Mr. David Drew (Stroud) (Lab/Co-op): I am delighted to start a few minutes before my allotted time, but I do not intend to keep the House longer than is necessary. I am also delighted to see my hon. Friend the Minister, and I believe he will have some interesting things to say. I make no apologies for reminding the House that I raised a similarly topical debate on this matter in January 2000. It shocked me to realise that that took place six years ago. We have not made a great deal of progress, but I hope that we can now do so.

Not long ago, the European Parliament's scientific and technological options assessment unit ran an inquiry into the risks posed by the practice of selling chocolate eggs containing small component toys. I do not intend just to talk about chocolate eggs but they are the best-known and, I think, the worst offenders. The inquiry was broken up by a group of MEPs who were, sadly, working under the auspices of at least one manufacturer. There is no doubt within STOA that the disruption was associated with that manufacturer. One member of STOA, the late and greatly missed MEP, Phillip Whitehead, who solidly supported what we were trying to do, was personally threatened. That is totally unacceptable behaviour.

In a meeting at the Department of Trade and Industry, officials admitted to a leading medical consultant that they were reluctant to take action on those products because of fear of legal reprisals by manufacturers. However, the official statistics suggest that there have been few incidents of harm caused by embedded items in foodstuffs, so it would appear that they do not have that much to worry about. I shall go on to say that there are more incidents than we would care to imagine throughout Europe. There have been some interesting recent statistics relating to such incidents.

The manufacturers and many others within safety and consumer bodies in the UK and across Europe know that there is a hole in those statistics, and how they are counted. In the UK we have now discontinued the home accident surveillance system survey, which I am very sad about, and in other member states statistics are based on small-scale samples of accident and emergency departments. If a case has been referred to another hospital, or has been resolved at home or in a doctor's surgery, it will not feature in the figures. We have been collecting details of incidents throughout the EU, and the full picture looks very different from the one painted by HASS and its counterparts. Throughout Europe, there have been more than 100 incidents—many of them unreported—associated with chocolate egg products alone in recent years. Other products could be mentioned for which no statistics are kept.

One medical school estimates that there could be as many as 2,000 incidents throughout the EU every year. Almost 40—some fatal—have been reported in the UK. Recently, the work of the European Child Safety Alliance has been brought to my attention by people who continually lobby me on the issue. I did not know
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about the group until comparatively recently. From Brussels on 20 January, it called for urgent action, saying:

The report talks about 2,000 child injuries in the EU each year, which confirms the numbers that I was talking about.

In a letter that was copied to the Gloucestershire trading standards department, one parent wrote:

That is one parent's testimony.

I have sent questionnaires to all UK accident and   emergency departments—an exponentially larger survey than HASS used itself. The 145 returns—a significant return, I think everyone would agree—revealed 10 episodes involving ingestion or an injury from toy parts in chocolate eggs, and experience of 16 episodes not involving hospital treatment. Some 60 per cent. of respondents—consultants—believed that the association of chocolate with toys made it more likely that the child would place parts of that toy in his or her mouth.

There is a lot more evidence, much of it compiled by unimpeachable bodies such as the Swedish Consumer Agency. It suggests a strong case for the reassessment of the risk posed by chocolate eggs, toy products or similar products—a risk described by the Royal Society for the Prevention of Accidents thus:

I invite anyone who has had any involvement with the issue or has their own children to consider what is involved with those products. We asked my hon. Friend the Member for Pontypridd (Dr. Howells), in a previous life when he had the responsibility that my hon. Friend the Minister has today, to consider Kinder eggs in particular, and he was somewhat taken aback by the nature of those products. They contain very small items that can be put in a child's mouth. The taste and smell of the chocolate would cause the child to do so. Sadly, in one case a child in this country died as a result of swallowing the capsule.

I should like to summarise briefly the regulatory requirements applicable to those products. Article 2 of the directive on toy safety states:

The directive requires manufacturers to meet "relevant national standards" based on "essential safety requirements", and to submit toys—it obviously dates
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back—for "EC-type examination". UK standards are set out in BS EN 71, which incorporates the European harmonisation standards in relation to, for example, mechanical and physical properties. Essential requirements cover toys, and their component parts, that are clearly intended for use by children under 36   months. They must be of such dimensions to prevent their being swallowed and/or inhaled. Toys, their parts and packaging must not present risks of strangulation or suffocation.

Such matters are the subject of a live debate in the European Union, with discussions on the Toys (Safety) Regulations 1995. Will the problems that I am identifying also be discussed because there is a particular problem with hybrids—foodstuffs that are also toy products?

Annex 2 of the directive sets out essential safety requirements, the general principles of which state that the users of toys must be protected against risks of injury to health, when toys are used as intended or in a foreseeable way, bearing in mind the usual behaviour of children. It covers the risks that are connected with the design or construction of the toy, or which are inherent in its use and cannot be eliminated by modifying its construction, without altering its function or depriving it of its essential properties. It states that the risk present in the use of the toy must be commensurate with the ability of the users and their supervisors to cope with it.

I refer now to eggs and other products on the market. Manufacturers will contend that they are satisfied with the conditions for Comformité Européene approval, citing article 5, which states that, if an article carries CE    certification, it can be assumed to satisfy the requirements. The tests to establish mechanical or physical safety include a truncated cylinder test, which is satisfied if the toy cannot completely fit into a cylinder corresponding to the diameter of the trachea. However, given the number of incident reports that I shall call on my hon. Friend the Minister to check, it is arguable that they have been shown to be inadequate, not in a laboratory, but in domestic and hospital conditions, and that they should be subjected to review.

There are prima facie grounds for article 6, which allows for references to the emergencies committee when a member state or the Commission considers the CE standards do not entirely satisfy the essential requirements to be invoked. Of the 100-plus cases that I have mentioned, there were only two where the victims were under 36 months old. The emphasis is placed on not allowing the products to be consumed by children of that age or younger.

Our concerns are shared by the Consumers Association, the Trading Standards Institute and the Royal Society for the Prevention of Accidents. They fall within the general principles, as it would be reasonably foreseeable that children might place the toys or their container in their mouths and that is normal behaviour. Given the foreseeability of risk and the limited ability of intended users to cope with it, manufacturers are under a duty to take all reasonable steps to limit that risk. Some have done so. For example, Nestlé withdrew its chocolate egg/toy product and Cadbury changed its Yowie product for UK release—it has now been withdrawn—to a solid toy and enlarged capsule to meet the worries voiced by ROSPA and others. However, the market leader, Kinder, has refused repeatedly to do so.
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Despite representations from consumer and child safety organisations throughout Europe, officials concluded at a meeting convened by the European Commission on 23 January that they could not do anything under the existing toy safety directive and that the general product safety directive was the appropriate instrument by which to take action. Given that the GPSD does not apply when sector-specific legislation, such as the toy safety directive, is in place, it represents something of a fudge. I say to the Minister that, at the very least, there is a need for clarification of where the   different directives stand. We have been round the course before. I mentioned the matter six years ago and the issue will continue with the threat of fatalities, but more particularly at a minimum level, with the threat of injury to children.

That sets out the case. In light of that, I call on the Minister to undertake his own research to establish whether it is likely that these products have a more serious risk profile than has been suggested by official national statistics, and how many attempted domestic ingestion incidents there might have been where no reference to a practitioner or hospital was involved. That highlights a key point. It is no good counting just the hospital statistics. We need to look at the totality of child choking incidents, and that is difficult to do because we no longer formally count them. If the Minister maintains that the general product safety directive is now relevant, I hope that he will not be averse to the Food Standards Agency running a fresh review to look at the reported incidence.

It comes as no surprise that the remaining manufacturers have refused to modify their products. They have carried out a very effective—if not somewhat robust—lobbying campaign at EU level. However, it remains perplexing that regulators have apparently sat   on their hands when they could do more. The Department of Trade and Industry banned flavoured rubbers, and it banned toy bolas balls on the evidence of only a couple of cases of mild bruising. If it was so proactive in those cases, why has it failed to do more in this instance? It could go to the EU to make sure that it is one of the leading lights in demanding a tightening up of the directives. There is confusion over which directive applies in respect of these hybrid products.

We would not be having this debate at all if we were in the United States. Such hybrid products are banned there. There is no truck with those who sell those products—millions of them—to young children, given the number of choking incidents. I will carry on in this vein until we at least get clarification and a toughening up of the standards, and I hope the DTI will take the lead in that.

4.42 pm

The Parliamentary Under-Secretary of State for Trade and Industry (Mr. Gerry Sutcliffe) : I am delighted that my hon. Friend the Member for Stroud (Mr. Drew) raised this debate in the way that he has. As he has outlined, he has considerable experience on this issue, and I do not doubt for one second his sincerity in attempting to bring it to a head. However, I think we will disappoint him in respect of some of his reasoning.

At the start of my hon. Friend's speech, he made reference to issues involving the European Parliament's scientific and technological options assessment unit, and
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to Mr. Phillip Whitehead, a former Member of this House who was a good friend of all of us. He was a prominent MEP specialising in consumer protection and competition. It was my great pleasure to have worked with Phillip on many occasions on issues affecting consumers and competition policy. I am not aware of the issue around the meeting with the DTI that was referred to and of what took place, but I do not doubt that it happened, and that is not how we would want things to move forward.

The debate gives us an opportunity to discuss my hon. Friend's concerns about embedded items—particularly toys—in food in the wider context of the Government's policy on consumer and toy safety. The UK is one of the safest places in Europe for consumers. My Department regards this as an important issue and is working to improve the situation by ensuring that the regulation of consumer safety is suitably robust and—importantly—proportionate. The effectiveness of the toy safety regulations is an integral part of that agenda. Our children deserve the highest level of safety and the regulations and safety standards for individual toys are in place to ensure that toys are safe for purpose.

The DTI is fully aware of the concerns about the supply of inedible products in food, and particularly about toys in chocolate eggs. The deaths of the small children that were associated with those products are a tragedy. However, there was no evidence to suggest that the association of the toy with the chocolate egg was a contributory factor in the fatalities. In two cases, the deaths occurred a significant time after consumption of the egg. The important issues are that the toys in food comply with the toy safety regulations on the safety standards for toys and that the packaging is marked with the appropriate warning labelling.

My hon. Friend has been actively interested in the issue of embedded items, particularly toys in food, for a number of years. He raised it in parliamentary questions, in correspondence with me and my predecessors, and under a ten-minute Bill in 2002. He   has also had several meeting with officials from the   Department of Trade and Industry and with manufacturers' representatives. I hope that he is fully aware of the seriousness with which the Department and others have considered the matter.

The deeply regrettable incidents to which my hon. Friend referred occurred a number of years ago. I believe that current measures under the Toys (Safety) Regulations 1995 are sufficient and appropriate for dealing with the potential risks of all toys, including current products. Manufacturers have taken steps to improve the visibility of warning labelling on their products and have made changes to improve the safety of the toys included in the products.

Research previously commissioned by my Department provided no evidence to suggest that toys marketed in the way mentioned pose a greater risk to children than other small toys or toys with small parts. Again, there is the question of proportionality. The DTI research on choking incidents among children under four analysed non-fatal and fatal cases over a 10-year period between 1986 and 1996. The research established that the main causes of choking in under-threes are sweets, coins and food. After the age of three, choking accidents drop sharply. Research showed that, over that 10-year period, toys were involved in about 60 per cent. of non-fatal
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choking incidents, which is about 166 cases, and about 4 per cent. of fatal accidents, which is seven cases. That compares with 106 fatalities involving food. Although there continue to be reports of individual incidents, there is no new research showing that the products present a greater risk than other small toys. However, I will be interested to look at the evidence that my hon. Friend put to us.

The leading manufacturer sells 10 billion chocolate eggs every year across the European Union. More than 1 billion are sold in the UK alone, so given the volume of products sold, if these products were a greater risk to children than other small toys, there would be a body of evidence of a demonstrable risk. That body of evidence does not exist. In fact, a recent study proves the opposite: a European survey on foreign body ingestion conducted in 2005 found that 73 per cent. of objects ingested by children aged 0–14 were of an organic nature, while only 26 per cent. were of an inorganic nature. Only 4 per cent of accidents, fatal and non-fatal, involved toys, and only 0.4 per cent. of accidents involved food products containing inedibles; there were no fatalities.

I take the view that the toys supplied in chocolate eggs or other food products are no different from other small toys. All toys must comply with the stringent requirements of the Toys (Safety) Regulations 1995, which require small toys or toys with small parts to be labelled as unsuitable for children under three. Local authority trading standards officers have the power to take action if they consider a product unsafe. The meaning of "unsafe" extends to the absence of clear warnings and/or instructions. Further measures or restrictions would be disproportionate.

Mr. Drew : My hon. Friend will be aware—I am sure that his officials will brief him on this—that the problem with trading standards services taking action is that they need enormous resources to see that action through. I accept that the cases are historical now, but they are not historical elsewhere in Europe, where cases keep coming up. I am sure that they could and will affect the UK unless we do something. Trading standards are taking on the very biggest, and the very biggest have to get their act together, as do the rogue elements out there. Does the Minister agree that that is a problem?

Mr. Sutcliffe : I hope that my hon. Friend takes what I say in the right spirit. As Minister with responsibility for consumer affairs, trading standards is a subject on which I want to concentrate. I have worked with the Trading Standards Institute on a range of issues. We need to take a better look at how trading standards are   resourced across the country, and how trading standards services fit into the requirements and requests of consumers. The whole focus of our consumer strategy is to empower consumers so that they know their rights, and to have the right regulatory regime in place to deal with enforcement issues. Also, we have to look after the companies that do things right and tackle the rogue companies that do not. My hon. Friend makes a fair point about the role of trading standards, but I have to say that this particular issue has not appeared high up
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on the agenda in my discussions with the TSI, although I am sure that I can have further discussions with the TSI on that.

We believe that the enforcement of consumer safety regulations, including for toys, is robust. Systems are in place not only nationally but across the European Union to notify enforcement authorities of products that fail to comply with safety standards. Any risk or hazard relating to any toy quickly comes to light and remedial action is taken to ensure that it is withdrawn from the market. Additionally, as a Minister, I have the power to issue a prohibition notice, banning products that present an immediate risk to consumers. That power is used sparingly, as a proportionate response based on evidence of potential harm. It has been used only once in the past 10 years, when my predecessor, Melanie Johnson, banned yo-balls in April 2003.

As my hon. Friend said, the European Commission considered toys in food and concluded that, although such products could constitute risks, those risks were no different from the ones associated with small toys, or any toys incorporating small parts. It is important to remember that no toys are risk free. It is to be hoped that consumers are now more knowledgeable about the risks of small parts, and of leaving small children to play unsupervised with toys with small parts.

This issue, and the need for further measures related to toys in food, has recently been discussed by European member states and the European Commission as part of    the review of the toys safety directive. The Commission's view remains unchanged: in the absence of any body of evidence of risk, toys marketed in that way do not pose a greater risk to children than other small toys, and the current measures in the directive are sufficient. At the moment, I share that view.

To summarise, the Department's policy is to empower and to protect consumers. I believe that regulations put in place to ensure the safety of consumer products are robust and effective, particularly in the area of toys in food.

I understand my hon. Friend's concern about the issue. He has meetings with officials at the Department. I am not against that happening again. I am certainly not against meeting trading standards officers, and the institute itself, to discuss many of those issues.

Mr. Drew : Would the Minister include in such a meeting the officials who are making representations in Brussels? They are crucial. I sympathise with him, because he does not have the authority to redesign those products. Only Brussels can do that through the directive. It would be useful to know what formal representations are being made to the EU by the Minister's officials.

Mr. Sutcliffe : In answer to that direct question, a technical experts meeting took place on 13 January to discuss the draft text of the new toy directive. The meeting included a specific discussion about toys in food, but that discussion did not lead the Commission to change its mind. Again, the evidence required was not there and had not been submitted by anybody asking for further restrictions. Therefore, there is some difficulty in terms of the communication to the technical experts. Subsequently, the Commission came to the decision that my hon. Friend talked about in his speech.
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I do not want to be complacent about these issues. If there are real risks, we have to consider them and the   proportionality of our response. On the current evidence, we believe that the regulations are robust and proportionate. However, I am sure that my hon. Friend will continue to raise the matter and to provide evidence, which we are happy to consider, as we have done over
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time. We may agree to disagree on this occasion, but that does not mean that the door is locked shut if evidence is forthcoming. In that spirit, I hope that my hon. Friend accepts my explanation.

Question put and agreed to.

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