The safety of electrical goods in the UK follow-up inquiry

We find it astonishing that 18 months after we published our first report on the safety of electrical products there are still up to 800,000 defective and dangerous machines in people’s homes. It is equally surprising that the Office for Product Safety and Standards did not question the basis of Whirlpool’s estimates which were substantially less. This raises questions about OPSS’s independence, competence and its ability to challenge a company whose attitude to product safety had already been subject to heavy criticism.

Whirlpool’s modification programme started in November 2015. It is very disappointing that it took up until July 2019 for Whirlpool to publish a full list of defective tumble dryers as requested by safety organisations and MPs. We are particularly concerned that OPSS and the Minister did not intervene to compel Whirlpool to provide this information. This is further evidence of the inability of OPSS to provide proper challenge to companies on product safety matters.

We welcome the Government’s decision to compel Whirlpool to recall up to 800,000 of its defective and potentially dangerous tumble dryers. However, it took far too long to make this decision, which has transformed the situation. Now the recall is in place, 53,889 machines have been made safe or replaced in four months; before the recall, it took 20 months to make 45,000 machines safe. We recommend that the Government reviews and reports on how Trading Standards and OPSS dealt with Whirlpool and set out what lessons can be learnt for dealing with future product safety issues, especially in terms of product recalls for large and mass purchased white goods. We also recommend that OPSS and the Minister keep the pressure up on Whirlpool and continue to publish regular updates on progress.

The OPSS review of Whirlpool’s modification, which took nearly a year to complete, resulted in what can only be described as a flimsy report and risk assessment. The OPSS did not speak to consumers, was overly accepting of Whirlpool data, was unable to acquire traceable modified machines to test and concluded that the risk was low despite the London Fire Brigade identifying fires caused by modified machines. The paucity of published information makes it difficult to understand how OPSS had used the EU’s RAPEX risk assessment methodology to reach its conclusions. It appears that this might have been because of commercial confidentiality concerns, which is deeply troubling, and we are not reassured by the OPSS’s explanation of how it decides what to release and withhold. We welcome OPSS’s overdue decision to meet with the London Fire Brigade to discuss how risk assessments can be shared in future. We recommend that OPSS reviews the criteria it uses when deciding what data and information it withholds because of commercial confidentiality concerns and considers whether changes are required if current legislation inhibits data sharing to improve product safety. We also recommend that OPSS confirms what data sharing protocols it has agreed with the London Fire Brigade and other relevant product safety organisations.

It was extraordinary that, given the concerns expressed by safety organisations about the modification and other problems with the machines, OPSS did not speak to customers as part of its Review. We have supplied OPSS with fresh data and evidence that they did not consider in the original review. We recommend that OPSS and BEIS conduct a new review of the safety of Whirlpool’s modification and investigate other possible sources of fires in Whirlpool’s tumble dryers and publish a full and comprehensive risk assessment. This should include an explanation of how RAPEX methodology has been used and customer testimonies assessed. The review should include a clear explanation of what risk means, in terms of the number of modified machines that might catch fire or malfunction.

It is disgraceful that Whirlpool made customers who had been victims of fires involving its products sign NDAs in order to receive compensation to which they were entitled. Its treatment of Jemma Spurr was lamentable, though we welcome their subsequent apology. While Whirlpool maintain that such NDAs were not intended to prevent customers sharing information with regulators and safety organisations, this is clearly contradicted by the wording in the NDA Jemma Spurr was made to sign. It also ignores the chilling affect such legal devices have, because customers often sign such NDAs without legal advice. Whirlpool told us that they are currently reviewing their use of NDAs. We recommend that Whirlpool should stop using them with customers altogether.

We are deeply concerned that NDAs and confidentiality clauses may be widely used. Though they are defended as protecting the interests of all parties, they should never be used to prevent consumers sharing product safety information with regulators and safety organisations. We do not know if Whirlpool’s use of NDAs is typical. If it is, the implications are profound. The practice is dangerous (as regulators will be unaware of safety problems) and risks destroying consumer trust. We welcome the fact that the Minister and OPSS have confirmed that they are addressing this issue and will shortly bring forward guidance.

It is unacceptable that a customer who has been through a distressing incident, such as a house fire, should not be told how that incident occurred. We welcome the Minister’s intervention to obtain this information. However, there is a broader issue here. Consumers need to be confident that when they buy goods that there is transparency and trust between themselves and manufacturers, especially if those goods malfunction and cause injuries or major damage to homes. It is also imperative that fire safety organisations see such reports if they are to plan responses and input into product safety improvements. We recommend that the Government reviews what rights consumers have when they request information from a manufacturer if a product malfunctions and how much information is shared with safety organisations, such as the Fire Service.

A number of incidents have made us concerned about Whirlpool’s attitude to product safety. First, its use of NDAs and initial refusal to release a forensic report to a customer whose house was gutted by a fire. Second, its contention that the Grenfell Tower fire might have been caused by a stray cigarette is improbable and questions whether it takes its safety responsibilities seriously. Third, its attempt to 34 The safety of electrical goods in the UK: follow-up deflect blame for fires from the known defects in its machines onto spontaneous combusting tea towels which are more likely to occur in commercial contexts, rather than domestic ones.

Though we welcomed the establishment of the OPSS, we note that only £14.9 million of its current £34.9 million operating budget is dedicated to product safety. The introduction of OPSS also did not change the roles and responsibilities of Local Trading Standards (LTS) or other market surveillance authorities. In our previous report, we noted that LTS budgets had been significantly cut and their services in many cases severely diminished. We are therefore concerned that while money has been invested in a national product safety body, as we recommended, this has not been accompanied by additional funding for LTS, who are the eyes and ears of the OPSS. While LTS now have access to OPSS support in areas such as training and research, their funding problems have not been addressed. This questions their ability to carry out surveillance and enforcement activities at a local level and to feedback data and information to the OPSS. We recommend that the Government review the funding of LTS and their current ability to carry out surveillance and enforcement activities at a local level and contribute to data sharing at a national level.

Despite the OPSS operating for 20 months and identifying second hand goods as a priority in its strategy, we are disappointed at the lack of progress. So far, this seems to be limited to a scoping project, dialogue with online sellers and reminding them of their responsibilities. This seems reactive and an approach that was exposed as inadequate when recalled second hand Whirlpool tumble dryers started appearing online for sale. We recommend that OPSS work with online marketplace platforms to produce software and protocols which require sellers to provide information that can identify whether an item is recalled as a prerequisite to uploading for sale. The Government should also consider what sanctions might be needed for online platforms who do not adequately police the second-hand goods being sold on their websites. We also recommend that the Government reviews and reports on how second-hand goods sales on the high street are being monitored and what action is being taken when recalled goods are found to be being sold. This should include the recycled goods market, and the role of local councils and others who sell, or who are intermediaries, for such goods.

The OPSS and the Minister have told us that they are prioritising the sale of online electrical goods and are liaising with online market place platforms to remind them of their responsibility to ensure such goods are safe. We welcome this. However, there still appear to be too many cases of dangerous goods being found on such platforms. As recently as September 2019, Which? found that nearly three quarter of the online electrical goods it tested were dangerous. As with second hand online goods the current approach appears to be reactive with action taken after goods have been placed online and when a problem arises. We are also concerned as to what role LTS, despite increased training and support from OPSS, can play in stopping the sale of unsafe electrical goods, because of the cuts they have faced. We recommend that OPSS works with online market place platforms to develop a more proactive approach The safety of electrical goods in the UK: follow-up 35 that ensures that electrical goods are not placed for sale online until their safety has been established. We also recommend that the Government publishes details of what role LTS are playing in policing electrical goods and what funding and resources they have to carry out this role.

The Government should be applauded for introducing new tougher tests for the backing on fridge freezers and for working with international safety bodies to bring about change. However, the OPSS and the Minister need to clarify exactly what the new standard seeks to achieve and what it intends to do about the plastic-backed fridges already in the supply chain and those being sold second hand, both online and in high street shops. We recommend that OPSS and the Government make a clearer statement about plastic-backed fridges, indicating that they should no longer be manufactured, and setting out a grace period for the removal of such machines from supply chains and second-hand markets.

The fact that there are up to 800,000 defective and potentially dangerous tumble dryers in people’s homes has highlighted the need for a central and joined-up portal for consumers to both register their products and access information about recalls. We are disappointed that despite recommending such a portal in January 2018, consumers can still not access such a resource. We acknowledge that OPSS have stated that they will deliver such a portal in November 2019. We recommend that OPSS confirm that they are still on track to deliver the updated central registration and recall hub and if not when it will be operational. We recommend that such a portal should be based on product registration at point of sale and should be free from marketing.

We share the frustration of safety organisations that more progress has not been made on indelible marking of electrical goods. A simple low-tech and low-cost solution is already used for marking vehicles and we are concerned that scoping and consultation is delaying the introduction of such a solution. If we cannot easily identify electrical goods after a fire, we cannot easily discern which electrical goods are dangerous. This is a serious weakness in out product safety system and needs addressing as soon as possible. We recommend that the Government urgently indicate when a viable system of indelible marking will be introduced and the reasons for delay.

It is disappointing that the UK still does not have an operational comprehensive injury and incident database. Along with indelible marking, such a database is crucial to tracking trends, identifying dangerous goods and enabling fire safety organisations and others to prepare mitigations. We accept that OPSS has prioritised such a database and is working with various stakeholders to identify sources of data and information. However, we note that OPSS has not identified insurance companies, who process claims after incidents involving electrical goods, as a potential source of information. We recommend that OPSS updates us on when a national incident and injury database will be fully operational and accessible. We also recommend that OPSS approach insurance companies with a view to accessing data and information on incidents involving electrical goods.

The OPSS will have been in existence for two years in January 2020. We welcome the Minister’s commitment to review and consult on its future. The fact that it 36 The safety of electrical goods in the UK: follow-up took until July 2019 to enforce a recall on Whirlpool and 9 months to produce an unconvincing review and an incomplete risk assessment of its modification raises serious questions about its current ability to regulate manufacturers and provide leadership. Its lack of transparency, compared to the Food Standards Agency, and questions over its data-sharing are also a cause for concern.

Its response to dangerous second hand and online electrical goods appears reactive and not what we would have expected from an independent and robust regulator.

It has not yet delivered a national injury database, a comprehensive registration and recall hub, or indelible marking for electrical goods. Their absence leaves a hole in the UK’s product safety system and questions the ability of OPSS to move beyond scoping and consultation to enact meaningful changes. We look forward to the Government’s review and consultation on the OPSS. As the Minister has promised, this should seriously consider making it an independent and fully transparent body, placing the consumer at the heart of its decision making.

The inability of the OPSS to use civil sanctions for non-compliance with product safety standards threatens to make it a toothless regulator. Though we agree that OPSS should see part of its role as promoting best practice and supporting manufacturers, retailers and online platforms, it should also have the independence and confidence to sanction poor behaviour and non-compliance. Such sanctions would also act as an importance deterrent for non-compliance and give the OPSS more authority in dealing with manufacturers. We therefore welcome the Minister’s commitment to consider widening the range of civil and criminal sanctions available to the OPSS and look forward to seeing proposals in the near future.