Pushing ‘START’ on button battery safety standards – Combating a danger lurking in the household

The new button/coin battery safety standards become mandatory on 22 June 2022. So as a manufacturer, importer, wholesaler or retailer of products that contain button batteries, what do you need to know?

Purpose

Button batteries are used in a broad range of products around our homes. These include watches, handheld computers and remote controls, key finders, calculators, torches, flameless candles, digital kitchen scales, musical greeting cards, and home medical devices. Of even greater concern, they can also be found in many children’s toys. If swallowed, a button battery can result in catastrophic injuries and even death. Insertion of button batteries into body orifices such as ears and noses can also lead to significant injuries. Indeed some children have been fatally injured from swallowing button batteries that had easily been accessible in innocent-looking devices around the home.

As a result of this, four distinct mandatory standards regulating button batteries have been introduced by the Australian authorities, and these come into effect on 22 June 2022. Those standards regulate safety of and information relating to button batteries, as well as products that contain button and coin batteries. The standards are primarily designed to reduce the risk of serious injury and/or death in small children resulting from ingestion of the products.

Compliance obligations rest with not only the manufacturer, but with participants across the entire supply chain including importers, wholesalers and retailers.

The standards

The batteries

• Packaging – must be child-resistant, and, if using blister packaging, must be designed to release only one battery at a time.
• Compliance testing – market participants must engage in compliance testing consistent with existing industry standards, and must be able to substantiate compliance through demonstrating upon request by the Regulator, the tests that were used to demonstrate compliance.
• Warnings – battery packaging must clearly and prominently be marked with warnings; batteries that are greater than 2 cm in diameter must have the warnings marked on the battery themselves. The warnings must be internationally recognised symbols such as the ‘Keep out of reach of children’ and ‘Safety Alert’ symbols (see below). It is further recommended that clear warnings of the risks of ingestion and what to do if the battery is ingested by a child are present on the packaging.
             

Products containing batteries

• Product design – the product containing the batteries must be designed so that the batteries themselves are secure and cannot foreseeably be released during the actual use or misuse of the product.
  Misuse in this circumstance may extend to a child playing with a particular product (including if the product is not a child’s toy). Further, if the product requires the batteries to be replaced over time, the battery compartment must be child-resistant.
  Putting this into practice would commonly involve designing the product so that the battery compartment can only be accessed by using an external tool like a screwdriver, a Torx™ wrench or a custom-designed tool that can only open the device with considerable force.
• Compliance testing – market participants must test against the appropriate product standard and be able to substantiate compliance upon request by the Regulator.
• Warnings – products containing button batteries must be marked with warnings that are clearly visible, prominent, and legible and that include an upper-case alert word (‘DANGER’, ‘WARNING’, ‘CAUTION’), a safety alert symbol, a statement detailing the battery’s hazards, and advice on what to do if the battery is ingested by a child.

Exemptions

Broadly, batteries supplied before the requirements become mandatory and those used in professional equipment away from children are exempt from the standards. Given the risks of non-compliance, you should always seek professional advice on whether your products are exempt.

Expectations

The ACCC expects that by now, businesses (having had ample time since the transition period commenced in December 2020) have already made the relevant manufacturing and design changes, undertaken compliance testing, and removed non-compliant stock.

The consequences of failing to meet the standards and supplying non-compliant stock to customers are severe for companies, with maximum penalties of the greater of (a) $10Million, (b) three times the value of the financial benefit from selling the product, and (c) ten percent of annual turnover during the 12-month period preceding the offending conduct.

Perhaps companies who recognised the issue and voluntarily recalled their products have got off lightly.

Conclusion

• The new standards are comprehensive, and the penalties for failing to comply are severe.
• If you are concerned that products you supply do not yet meet the incumbent standards, you should seek professional advice.

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Authored by:

Antoine Pace, Partner
Alistair MacLennan, Lawyer