Select Committee on European Scrutiny Seventeenth Report

2 Safety of toys



+ ADDs 1-2

COM(08) 9

Draft Directive on the safety of toys

Legal baseArticle 95EC; co-decision; QMV
Document originated25 January 2008
Deposited in Parliament14 February 2008
DepartmentBusiness, Enterprise and Regulatory Reform
Basis of considerationEM of 29 February 2008
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionNot cleared; further information awaited


2.1 Council Directive 88/378/EEC[2] was adopted in order to harmonise the safety levels of toys throughout the Member States, and to remove obstacles to the trade in toys within the internal market. It specifies that toys may be placed on the market only if their design and use do not pose a risk to safety and/or health when used as intended (or in a foreseeable way). In particular, Member States must take the steps needed to ensure that toys cannot be placed on the market unless they meet certain safety requirements (relating to their physical properties,[3] flammability, chemical and electrical properties, and cleanliness, as well as the nature of any relevant warnings), with compliance being presumed where toys bear the EC mark, granted as a result of the type-examination procedure laid down. However, the Commission says that technological developments have raised new safety issues in this area and given rise to increased consumer concerns, and that it is therefore necessary to revise and enhance existing measures, and, in the interests of clarity, to repeal Directive 88/378/EEC.

The current proposal

2.2 It has accordingly put forward in this document a revised Directive, with the aim of enhancing the level of safety of toys, whilst maintaining the smooth functioning of the internal market. In order to achieve this overall aim, the Commission identifies three specific objectives:

  • strengthening, clarifying, modernising and completing the essential safety requirements, in response to market developments and scientific progress, and to deal with an increased awareness of health and safety issues by consumers and enforcers;
  • improving the understanding, implementation and enforcement of the Directive within Member States; and
  • providing clarity and updating the scope, concepts and definitions of the Directive, ensuring that it is in line with the general legislative framework for marketing products within the EU.

2.3 The Commission proposes that these objectives should be achieved by the following measures.

Chemical requirements

The proposal would maintain the safety requirements in the current Directive, but would in addition ban certain allergenic fragrances and require the labelling of 28 other fragrance allergens. It would also ban all substances categorised as carcinogens, mutagens and substances toxic to reproduction (CMRs) in accessible parts of toys unless authorised by comitology procedure in the Directive: and the current reference to the "availability" of certain metals which may be present would be replaced by a reference to their "migration limits".  


The new measures are designed to improve the effectiveness of these warnings by providing for the mandatory display of minimum/maximum age for users at point of sale, for specific warnings on age or ability, for a minimum/maximum user weight, and for the need for the relevant toys to be used under adult supervision.

Choking risks

The Directive currently covers the risk of inhalation of small parts from toys intended for children under 36 months, and this provision would be extended to any toys intended to be put in the mouth, regardless of the age of the child.

Suffocation risks

The Directive currently covers the risk of external airway obstruction of the
mouth and nose, and this would be extended to include internal airway

General safety requirements  

These currently refer to the "foreseeable" use of a toy taking into account the "normal" behaviour of children, and, as this has led to problems of interpretation, not least in dealing with previously unforeseen risks, they would instead refer to "behaviour of children".

Choking as a result of the association of toys and food items  

The current Directive contains no specific provisions for toys in food, and there would be a new requirement that toys should be marketed in a package separating them from the food items in question, that the packaging itself should not present a choking hazard, and that toys should not be firmly attached to the food product at moment of consumption, in such a way that the product needs to be consumed in order to get direct access to the toy.

Market surveillance measures

The proposal would reinforce the relationship between the Directive and the General Product Safety Directive (2001/95/EC),[4] particularly in relation to the specific powers for market surveillance authorities and enforcement cooperation between Member States.

Information on chemicals in the technical files

The proposal would require further information on the chemical components and materials used in toys to be included in the technical file used for market surveillance.

CE Marking

The proposal would extend the current CE Marking requirements by requiring the marking to be fixed to the packaging of the toy if the marking on the toy is not visible through the packaging.

Safety Assessment

Manufacturers and importers etc would in future be required to perform an analysis of the hazards which the toy may present, and to make this available to market surveillance authorities for inspection as part of the toy's technical file.

Alignment of the Directive with the proposed Council and Parliament Decision on the marketing of goods

The new Directive would be aligned with provision in the draft Decision[5] which the Commission put forward on 14 February 2007 on the marketing of goods in order to ensure consistency between all New Approach Directives, particularly in areas such as conformity assessment bodies, definitions, routes to conformity and rules for CE Marking.

Scope of the Directive

The proposal aims to complete the list of products which are not within its scope, particularly as regards new products such as videogames and their peripherals. It would also include definitions specific to the sector (such as functional toys, activity toys, hazard, harm, risk etc).

The Government's view

2.4 In his Explanatory Memorandum of 29 February 2008, the Parliamentary Under Secretary of State for Trade and Consumer Affairs at the Department for Business, Enterprise and Regulatory Reform (Mr Gareth Thomas) says that the text reflects the discussions which have been taking place since 2003 in informal Commission working groups, and that the revision is sensible, given that the current Directive has now been in operation for 20 years. He adds that this has enabled a careful look to be taken at what works in this sector, and how the Directive can best be related to other Community legislation; and he comments that the proposal also reflects the lessons learned from the many toy recalls throughout the Community last year.

2.5 The Minister says that the UK supports the proposal, which it believes will lead to an enhanced level of safety, whilst maintaining the well established and smooth functioning of the market in the UK and within the Community as a whole. He also considers the implications of individual elements in the proposal, and concludes that these should be beneficial, and that, in those instances where there may be further costs, these should not, for the most part, be significant. He does, however, say that the new approach to the banning of CMRs would lead to substitution of chemicals or in some cases withdrawal of certain toys from the market, and would therefore increase manufacturing costs (and to a lesser extent some administration costs), but that there would be considerable long-term beneficial health effects; that the costs to industry of the revised requirements on warning labels are likely to be lower than would be expected, as many manufacturers already provide these (and that, again the health benefits would be considerable); and that the new provision on the Safety Assessment would lead to some additional costs, which were not evaluated in the Commission's impact assessment, but which will be covered in the Impact Assessment being prepared by the UK. He also says that there are no financial costs falling on Government as a consequence of this proposal.


2.6 The safety of toys is self-evidently an important topic, and, for that reason, we think it right to draw to the attention of the House this proposal to amend the existing Community measures in this field, particularly as it represents the first major review in this area since the current Directive was introduced in 1988. Having said that, it does not, on the basis of the evidence available so far, appear likely to give rise to any issues requiring the further consideration of the House, but, as the Government has said that it is preparing a Regulatory Impact Assessment, we think it would be sensible to defer a final view until we have seen that. We are therefore continuing to hold the document under scrutiny.

2   OJ No. L 187, 16.7.88, p.1. Back

3   Covering such matters as strength, protrusions and fastenings, cables, and risks of swallowing and suffocation. Back

4   OJ No. L 11, 15.1.02, p.4. Back

5   (28376) 6378/07: see HC 41-xiv (2006-07), chapter 3 (14 March 2007), HC 16-xiv (2007-08), chapter 5 (5 March 2008). Back

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