Introductory text

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety^f1, and in particular Article 13 thereof,

Whereas:

Pursuant to Directive 2001/95, producers are obliged to place only safe products on the market.

According to Article 13 of Directive 2001/95/EC, if the Commission becomes aware that certain products present a serious risk to the health and safety of consumers, it may, under certain conditions, adopt a Decision requiring Member States to take temporary measures aimed in particular to restrict or make subject to particular conditions the placing on the market of such products, to ban their marketing and introduce the accompanying measures required to ensure that the ban is complied with, or to require their withdrawal or recall from the market.

Such a Decision is contingent upon the facts that Member States differ significantly on the approach adopted or to be adopted to deal with the risk concerned; that the risk cannot, in view of the nature of the safety issue, be dealt with in a manner compatible with the degree of urgency of the case under other procedures laid down by the specific Community legislation applicable to the products concerned; and that the risk can be eliminated effectively only by adopting appropriate measures applicable at Community level, in order to ensure a consistent and high level of protection of the health and safety of consumers and the proper functioning of the internal market.

Lighters are products which are inherently hazardous since they produce a flame or heat and since they contain a flammable fuel. They pose a serious risk when being misused by children, which may result in fires, injuries or even deaths. Taking account of the inherently hazardous nature of lighters, the very high number of items placed on the market and the foreseeable conditions of use, the seriousness of the risk posed by lighters to children’s safety should be dealt with in relation to their possible use in play by children.

The serious risk posed by lighters is confirmed by the available data and information on fires in the EU related to children playing with lighters. A report published by the United Kingdom Department of Trade and Industry in February 1997 entitled ‘European research — accidents caused by children under five playing with cigarette lighters and matches’ estimated a total of about 1 200 fires, 260 injuries and 20 deaths per year in the EU for 1997. More recent information confirms that a significant number of serious accidents, including deaths, are still caused in the EU by children playing with non-resistant lighters.

Legislation establishing child-resistance requirements for lighters equivalent to those set out in this Decision exist in Australia, Canada, New Zealand and the United States of America (US). Before setting up the legislation, a survey was launched in the US. The US Consumer Product Safety Commission’s 1993 proposal for a Regulation for lighters estimated that, per year, lighters used by children caused more than 5 000 fires, 1 150 injuries and 170 deaths in the US.

The US child-resistance requirement was introduced in 1994. In 2002 a US study on the effectiveness of the requirement reported a 60 % reduction in fires, injuries and deaths.

Consultation of the Member States in the Committee established by Article 15 of Directive 2001/95/EC has established that Member States differ significantly on the approach to deal with the risk posed by non-child-resistant lighters.

Two technical standards relate to the safety of lighters: the European and International Standard EN ISO 9994:2002 ‘Lighters — Safety Specification’, which establishes specifications on quality, reliability and safety of the lighters combined with appropriate manufacturing test procedures, but which does not include child-resistance specifications, and the European standard EN 13869:2002 ‘Lighters — Child-resistance for lighters — Safety requirements and test methods’, which establishes child-resistance specifications.

The references of EN ISO 9994:2002 were published by the Commission in the Official Journal of the European Union ^f2 in accordance with the procedure laid down in Article 4 of Directive 2001/95/EC giving presumption of conformity with the general safety requirement of Directive 2001/95/EC for the risks covered by this standard. In order to deal with child-resistance, some Member States considered that the Commission should publish in the Official Journal also the references of EN 13869:2002. However, other Member States considered that EN 13869:2002 should first be substantially revised.

In the absence of Community measures on child-resistance of lighters and on the prohibition of novelty lighters some Member States may adopt divergent national measures. The introduction of such measures would inevitably result in an uneven level of protection and in intra-Community barriers to trade in lighters.

There is no specific Community legislation applicable to lighters. The risk cannot be dealt with effectively under other procedures laid down in specific rules of Community law, taking into account the nature of the safety problem concerned, and in a manner compatible with the degree of urgency of the case. It is therefore necessary to resort to a Decision according to Article 13 of Directive 2001/95/EC.

In view of the serious risk from lighters and in order to ensure a consistent high level of consumer health and safety protection throughout the EU as well as to avoid barriers to trade, a temporary Decision in accordance with Article 13 of Directive 2001/95/EC should be adopted. Such Decision should rapidly make the placing on the market of lighters subject to the condition that they be child-resistant. Such Decision should prevent further damages and deaths, pending a permanent solution which should be based on an international consensus.

The child-resistance requirement of this Decision should cover disposable lighters, because such lighters pose a particularly high degree of risk of child misuse. A US study of 1987, ‘Harwood’s study’, demonstrated that on average 96 % of the accidents caused by children playing with lighters were due to disposable lighters. Very few accidents involved lighters other than disposable ones, namely the so-called luxury and semi-luxury lighters which are designed, manufactured and placed on the market such as to ensure a continual expected safe use over a long period of time, and which are covered by a written guarantee and benefit from an after-sales service for replacement or repair of their parts over their life time, and which are characterised by a sophisticated design using expensive material, a luxury image and a low degree of substitutability with other lighters, and a distribution in outlets in accordance with the prestige and luxury image of the brand. These results are consistent with the fact that people are likely to pay more attention to higher value lighters intended to be used for a long time period.

All lighters that resemble by any means to another object commonly recognised as appealing to or intended for use by children should be banned. This includes, but is not limited to, lighters the shape of which resembles cartoon characters, toys, guns, watches, telephones, musical instruments, vehicles, human body or parts of the human body, animals, food or beverages, or that play musical notes, or have flashing lights or moving objects or other entertaining features, usually called ‘novelty lighters’, which pose a high risk of misuse by children.

In order to facilitate the application of the child-resistance requirement by producers of lighters, it is appropriate to make reference to the relevant specifications of the European standard EN 13869:2002, so that lighters complying with the corresponding specifications of the national standards which transpose that European standard are presumed to conform to the child-resistance requirement of this Decision. With the same aim, lighters complying with the relevant rules of the non-EU countries where child-resistance requirements equivalent to those established by this Decision are in force should also be presumed to conform to the child-resistance requirement of this Decision.

The consistent and effective enforcement of the child-resistance requirement established by this Decision requires the submission by producers to the competent authorities at their request of test reports on child-resistance delivered by testing bodies accredited by the accreditation bodies which are members of international accreditation organisations or otherwise recognised by the authorities to that end or delivered by testing bodies recognised for executing this type of test by the authorities of the countries where safety requirements equivalent to those established by this Decision are applied. Lighter producers should provide on request without delay to the competent authorities established under Article 6 of the Directive 2001/95/EC all the documents needed. If the producer is unable to provide such documentation within the delay established by the competent authority, the lighters should be withdrawn from the market.

According to Article 5(2) of Directive 2001/95/EC distributors should help to ensure compliance of the lighters they supply with the child-resistance requirement established by this Decision. In particular they should cooperate with the competent authorities by providing them on request the documentation needed to trace the origin of the lighters.

The shortest possible transition periods should be allowed for the application by producers of the measures established by this Decision, consistent with the need to prevent further accidents while taking into account technical constraints and ensuring proportionality. Transitional periods are also required for the Member States to ensure that the measures are efficiently applied, given the high volume of lighters marketed annually in the EU and the multiple distribution channels used for such marketing. Therefore, the obligation for producers to place only child-resistant lighters on the market should apply 10 months from the date of notification of this Decision while the obligation to supply only child-resistant lighters to consumers should apply one year after the entry into force of the ban on placing on the market of such lighters. Therefore, the latter obligation will be established when revising this Decision, one year after its adoption.

Article 13(3) of Directive 2001/95/EC prohibits the export from the Community of the dangerous products which have been the subject of a Decision. However, taking into account the structure of the market for lighters as regards the number of producers worldwide, the volume of exports and imports and the globalisation of markets, an export ban would not improve the safety of consumers located in Third Countries which do not apply child-resistance requirements, since the exports from the EU would be replaced by non-child resistant lighters from non-EU countries. The application of article 13(3) should therefore be suspended until an international standard on child resistance is adopted. This should be without prejudice to the application of measures in third countries where child-resistance requirements are in force.

The measures provided for in this Decision are in accordance with the opinion of the Committee established by Article 15 of Directive 2001/95/EC,

HAS ADOPTED THIS DECISION: