S.I. No. 32/1990 - European Communities (Safety of Toys) Regulations, 1990.

S.I. No. 32 of 1990.

EUROPEAN COMMUNITIES (SAFETY OF TOYS) REGULATIONS, 1990.

I, DESMOND O'MALLEY, Minister for Industry and Commerce, in exercise of the powers conferred on me by Section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 88/378/EEC of 3 May 1988⁽¹⁾ on the approximation of the laws of the Member States concerning the safety of toys hereby make the following Regulations:

⁽¹⁾ O.J. No. L187, 16.7.1988, p.1.

1 Citation and Commencement

1. (1) These Regulations may be cited as the European Communities (Safety of Toys) Regulations, 1990.

(2) These Regulations shall come into operation on the making thereof.

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2. (1) In these Regulations—

"appropriate fee" means the fee referred to in Regulation 10;

"approved body" means a body appointed under Regulation 6;

"approved model" means a model of a toy in respect of which an EC type-examination certificate is in force;

"authorised officer" means a person appointed under Regulation 17 to be an authorised officer for the purposes of these Regulations;

"authorised representative" means an authorised representative established within the Community;

"the Community" means the European Economic Community;

"the Council Directive" means Council Directive 88/378/EEC of 3 May 1988;

"the Director" means the Director of Consumer Affairs and Fair Trade;

"EC mark" means the EC Mark of conformity consisting of the symbol "CE", a specimen form of which is set out in the Second Schedule;

"EC type-examination certificate" means a certificate issued by an approved body indicating that the toy referred to in the certificate has been approved and that a model of the toy conforms to the essential safety requirements applicable to it;

"essential safety requirements" mean the essential safety requirements specified in Annex II of the Council Directive which is set out in the First Schedule;

"Member State" means a Member State of the Community;

"the Minister" means the Minister for Industry and Commerce;

"place on the market" shall be construed in accordance with Regulation 3;

"safe" shall be construed in accordance with Regulation 4 (2);

"standard specification" means

( a ) a standard specification declared in accordance with section 20 of the Industrial Research and Standards Act, 1961 (No. 20 of 1961), or

( b ) a standard declared or laid down by a body or person pursuant to the law of another Member State,

which conforms to a harmonized standard to which the Council Directive applies;

"toy" means a product or material designed or clearly intended for use in play by children of less than 14 years of age other than a product or material specified in Annex I of the Council Directive which is set out in the First Schedule.

(2) A reference in these Regulations to a Regulation or a Schedule is to a Regulation of, or a Schedule to, these Regulations.

(3) A reference in these Regulations to a paragraph is to the paragraph of the Regulation in which the reference occurs.

(4) A word or expression which is used in these Regulations and is also used in the Council Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in that Directive.

3 Scope

3. (1) In these Regulations "place on the market" means—

( a ) import,

( b ) sell (whether by wholesale or retail),

( c ) offer or expose for such sale,

( d ) distribute free of charge, or

( e ) supply by a manufacturer for any of those purposes, and cognate words shall be construed accordingly.

(2) These Regulations shall apply to every toy placed on the market on or after the 13 day of February, 1990:

Provided that these Regulations shall not apply to such a toy where any act was done in relation to the toy prior to the 13 day of February, 1990, which amounted to a placing of it on the market in the Community.

(3) Where in any proceedings under these Regulations evidence is adduced that a toy was placed on the market, it shall be presumed, until the contrary is proved, that no act was done in relation to that toy prior to the 13 day of February, 1990, which amounted to a placing of it on the market in the Community.

(4) The Industrial Research and Standards (Section 44) (Children's Toys) Order, 1985 ( S.I. No. 44 of 1985 ), shall not apply to a toy to which these Regulations apply.

4 Safety requirements for toys

4. (1) A person shall not place on the market a toy unless, in the condition in which it is placed on the market, it—

( a ) is safe,

( b ) carries in accordance with Regulation 14 or with a similar procedure of another Member State an EC mark and the other information required by Regulation 14, and

( c ) taking account of the period of its foreseeable and normal use, complies with the essential safety requirements.

(2) A toy shall be regarded as safe for the purposes of these Regulations if, when used in a foreseeable way and having regard to the normal behaviour of children, it does not jeopardise the safety or health of the user or any third party.

(3) Where a toy has affixed to it an EC mark in accordance with Regulation 14 or in accordance with a similar procedure of another Member State, the toy shall be presumed, until the contrary is proved, to comply with the essential safety requirements.

5 Prohibitions

5. (1) Where the Minister, the Director or an authorised officer is of opinion that a person is placing on the market a toy in contravention of Regulation 4, he may by direction in writing given to that person prohibit him from placing the toy on the market and he may, if he thinks fit, cause a notice to be published in at least one national daily newspaper notifying the public of the prohibition.

(2) The Minister or the Director may, as he thinks fit, withdraw a direction given by him or an authorised officer under paragraph (1).

(3) Any trader or importer who is affected by a direction given under paragraph (1) may appeal to the High Court against the direction and the Court, as it thinks proper, may annul or confirm the direction.

(4) A document purporting to be a direction given by the Minister, the Director or an authorised officer under paragraph (1) and to be signed by the Minister, the Director or an authorised officer (as the case may be) shall be received in evidence and deemed to be such a direction without further proof, unless the contrary is shown.

6 Approved Bodies

6. The Minister may appoint one or more bodies ("approved bodies"), which in his opinion meet the minimum criteria specified in Annex 111 of the Council Directive and which are set out in the First Schedule, to carry out EC type-examinations and the other functions of approved bodies under these Regulations and may revoke any such appointment.

7 Application for an EC type-examination certificate

7. (1) A manufacturer of a toy or his authorised representative shall, subject to paragraph (2), apply to an approved body for an EC type-examination certificate in respect of a model of the toy before placing it on the market.

(2) Where the toy conforms in whole to the standard specification applicable to it, an application under paragraph (1) shall be at the option of the manufacturer.

(3) An application under paragraph (1) shall be made in writing and shall contain such information and be supported by such documents as the approved body may reasonably require, including:

( a ) a description of the toy,

( b ) the name and address of the manufacturer or his authorised representative or representatives, and the place of manufacture of the toy, and

( c ) comprehensive manufacturing and design data,

and shall be accompanied by a model of the toy to be manufactured.

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8. (1) An approved body shall carry out the EC type-examination by—

( a ) examining the documents supplied by the applicant and establishing whether they are in order,

( b ) checking that the toy is safe, and

( c ) carrying out the appropriate examinations and tests using as far as possible the standard specification applicable to the toy in order to check whether the model meets the essential safety requirements.

(2) The approved body may, in carrying out the EC type-examination, request further examples of the model.

9 Grant or refusal of EC type-examination certificate

9. (1) Where an approved body, on application being made to it under Regulation 7 and after examining the documents supplied by the applicant and after carrying out tests and inspections of the model of the toy and any other models submitted to it—

( a ) is satisfied that the toy will be safe and that the model satisfies the essential safety requirements applicable to a toy of that type, it shall grant an EC type-examination certificate in respect of that model, subject to such conditions as the approved body thinks fit, or

( b ) is satisfied that the toy will not be safe or that the model does not satisfy the essential safety requirements applicable to a toy of that type, it shall refuse to grant an EC type-examination certificate in respect of that model and shall so inform the applicant.

(2) A certificate granted under paragraph (1) shall indicate any conditions subject to which it is granted and be accompanied by the description and drawings of the toy.

10 Fees

10. (1) An approved body may charge a fee (the "appropriate fee") which shall be equal to the amount which the approved body estimates it will incur in, or in connection with, carrying out or causing to be carried out the functions referred to in these Regulations in respect of the application concerned.

(2) Where the costs incurred are greater than the appropriate fee, the difference between those costs and that fee shall be payable by the manufacturer or his authorised representative to the approved body, and where those costs are less than the appropriate fee, the difference between those costs and that fee shall be repayable by the approved body to the manufacturer or his authorised representative, as the case may be.

11 Suspension or withdrawal of EC type-examination certificate

11. Where an approved body, as a result of sample checks carried out under Regulation 17 or otherwise, is satisfied that a toy is not being manufactured in conformity with the essential safety requirements, it shall suspend or withdraw any EC type-examination certificate granted in respect of the toy.

12 Notification of decisions

12. (1) On taking a decision under Regulation 9 (1) to refuse to grant an EC type-examination certificate or a decision under Regulation 11 to suspend or withdraw such a certificate, an approved body shall, as soon as practicable thereafter, send to the manufacturer or his authorised representative (as the case may be) a notice in writing of the decision stating the exact grounds on which it was based and informing the manufacturer or his authorised representative of his right to apply for a review of the decision under Regulation 13 and of the time limit for making such an application.

(2) Where a model of a toy, in respect of which a decision to which paragraph (1) applies has been taken, has already been granted an EC type-examination certificate in another Member State, the approved body shall so inform that other Member State and the Commission of the European Communities giving its reasons for the decision.

(3) The Commission of the European Communities and persons or bodies in other Member States having similar functions under the Council Directive to approved bodies and Member States may obtain from an approved body on request a copy of the design and manufacturing schedule of a toy in respect of which a decision under Regulation 9 or 11 has been taken and the reports of the approved body on the examinations and tests carried out which form the basis of the decision.

13 Review

13. (1) Any person aggrieved by a decision of an approved body—

( a ) to refuse to grant an EC type-examination certificate, or

( b ) to suspend or withdraw an EC type-examination certificate,

may appeal to the Minister for a review of the decision.

(2) On an appeal under these Regulations, the Minister—

( a ) shall have the same powers and duties as the approved body has under these Regulations,

( b ) may hold an enquiry in connection with the appeal, and

( c ) may appoint an assessor for the purpose of assisting him with the appeal or enquiry.

(3) An appeal under this Regulation shall be made by written notice to the Minister which shall be lodged with him not later than 14 days from the date on which the notice of the decision in respect of which the appeal is made was given.

(4) A notice of appeal under these Regulations shall state the grounds on which the appeal is made and shall be accompanied by the following documents: a copy of the application for an EC type-examination certificate, together with every other document submitted to the approved body in connection with that application and a copy of the notice from an approved body referred to in Regulation 12 (1).

14 EC mark and other information

14. (1) A person who places a toy on the market shall ensure—

( a ) that the toy or the packaging of the toy has placed thereon in a visible, easily legible and indelible form—

(i) where it is manufactured in accordance with the standard specification applicable to it, the EC mark by which the manufacturer of the toy or his authorised representative confirms that the toy conforms to that standard;

(ii) where it is not manufactured, or where it is manufactured only partly, in accordance with the standard specification applicable to it or where no such standard exists, and where an EC type-examination certificate has been granted in respect of that toy, the EC mark by which the manufacturer of the toy or his authorised representative confirms that the toy conforms to the approved model; and

(iii) the name, trade name or mark and the address of the manufacturer, his authorised representative or importer of the toy into the Community.

( b ) that the toy is accompanied by the appropriate warnings and indications of precautions in English and Irish or in English to be taken during use specified in Annex IV of the Council Directive which is set out in the First Schedule.

(2) In the case of a small toy or a toy consisting of small parts, the information specified in paragraph (1) (a) may appear in a visible, easily legible and indelible form—

( a ) on a label attached to the toy;

( b ) on an accompanying printed label or leaflet; or

( c ) where the toy is not individually packaged, on the box or other packaging containing the toy and other toys of the same kind.

(3) Where the information referred to in paragraphs (1) (a) and (2) does not appear on, or is not attached to, the toy the attention of any person to whom the toy is sold for private use or consumption shall be drawn to the advisability of noting the information.

(4) Any of the information referred to in paragraphs (1) (a) and (2), other than the EC mark, may be abbreviated provided that the abbreviation enables the manufacturer, his authorised representative or the importer of the toy to be identified.

15 False or misleading marks

15. (1) A person shall not affix in any of the ways provided for in Regulation 14—

( a ) an EC mark to a toy which purports to confirm the matter referred to in subparagraph (a) (i) of Regulation 14 (1) unless the toy complies with the standard specification applicable to it, or

( b ) an EC mark to a toy which purports to confirm the matter referred to in subparagraph (a) (ii) of Regulation 14 (1) unless the toy conforms to the approved model of it.

(2) A person shall not give in connection with a toy information by means of a misleading mark or inscription or otherwise which is likely to be confused with the EC mark.

16 Information to be kept available for inspection

16. (1) In respect of a toy which conforms to the standard specification applicable to it, the manufacturer of the toy or his authorised representative or where neither the manufacturer nor his authorised representative is established within the Community, the person who first places the toy on the market in the Community, shall keep the following information available for inspection:

( a ) a description of the means (such as the use of a test report or technical file) whereby the manufacturer ensures conformity of production with the standard specification;

( b ) the addresses of the places of manufacture and storage of the toy;

( c ) detailed information concerning the design and manufacture of the toy; and

( d ) where appropriate, an EC type-examination certificate together with copies of the documents the manufacturer has submitted to the approved body and a description of the means whereby the manufacturer ensures conformity with the approved model.

(2) In respect of a toy which does not conform or only partly conforms to the standard specification applicable to it or in respect of which there is no standard specification, the manufacturer of the toy or his authorised representative or where neither the manufacturer nor his authorised representative is established within the Community, the person, who first places the toy on the market in the Community, shall keep the following information available for inspection:

( a ) a detailed description of the manufacture of the toy;

( b ) a description of the means (such as the use of a test report or technical file) whereby the manufacturer ensures conformity with the approved model;

( c ) the addresses of the places of manufacture and storage of the toy;

( d ) copies of the documents which the manufacturer has submitted to an approved body for the purpose of EC type-examination; and

( e ) the EC type-examination certificate.

17 Authorised officers

17. (1) The Minister and the Director may appoint such and so many officers of the Minister as the Minister or the Director thinks fit to be authorised officers for the purposes of these Regulations and shall ensure that sample checks are carried out on toys which are placed on the market, so as to verify conformity with these Regulations.

(2) An authorised officer shall be furnished with a warrant of his appointment as an authorised officer and, when exercising any power conferred on an authorised officer by these Regulations, shall, if requested by any person affected, produce the warrant to that person.

(3) An authorised officer—

( a ) shall obtain access, on request, to the place of manufacture or storage of toys and to the information referred to in Regulation 16 (1) or (2), and

( b ) shall obtain access on request to any ship or other vessel, aircraft, railway wagon or other vehicle in which he has reasonable grounds for believing that toys are being transported for sale in the State or export to a Member State,

and there or at any other place make such examinations, tests, or inspections as he may consider appropriate for the purposes of these Regulations.

(4) An authorised officer—

( a ) may ask the manufacturer of a toy, his authorised representative or the person who places the toy on the market in the Community, to supply the information provided for in Regulation 16 (1) or (2) within a period specified by the authorised officer,

( b ) may select a sample of the toy and take it away for examination and testing, and

( c ) shall take reasonable measures to guarantee confidentiality with regard to the forwarding of the copies relating to the EC type-examination.

(5) An authorised officer may require, where the information required to be kept available under Regulation 16 is not available, that the manufacturer or his authorised representative have a test performed at his own expense within a time specified by an approved body to verify compliance with the standard specification applicable to it and the essential safety requirements.

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18. (1) If a justice of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that an offence under these Regulations has been or is being committed on any premises or other place, he may issue a warrant under his hand authorising a specified authorised officer, accompanied by such members of the Garda Síochána as that officer thinks necessary, at any time or times within one month from the date of the issue of the warrant, to enter, if need be by force, and search the premises or other place specified in the warrant and—

( a ) to seize any toy found there which in his opinion could not, without contravening Regulation 4, be placed on the market, and

( b ) to require any person found there to give him his name and address and any other information in his possession in relation to any toy referred to in subparagraph (a) of this paragraph.

(2) An application under paragraph (1) for an issue of a warrant shall be made to a justice of the District Court district in which the premises or place to which the application relates is situated.

19 Service of notices

19. (1) Where a notice, document or a model of a toy is required by these Regulations to be sent or given to a person—

( a ) where the person is other than the Minister, the Director or an approved body, it shall be addressed to him and may be sent or given to him in some one of the following ways:

(i) where it is addressed to him by name, by delivering it to him,

(ii) by leaving it at the address at which he carries on business or ordinarily resides or, in a case in which an address has been furnished under Regulation 7 (3) (b), at that address,

(iii) by sending it by post in a prepaid registered letter or package addressed to him at the address at which he carries on business or ordinarily resides or, in a case in which an address has been furnished under Regulation 7 (3) (b), at that address.

( b ) where the person is the Minister, the Director or an approved body, by delivering it or sending it by post in a prepaid registered letter or package to, in the case of the Minister, the Secretary of the Department of Industry and Commerce, Dublin and, in the case of the Director or an approved body, to his or its office.

(2) For the purposes of paragraph (1) (a) a company within the meaning of the Companies Act, 1963 , shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or any other place at which it carries on business.

20 Offences

20. (1) It shall be an offence—

( a ) to contravene, or fail to comply with, the terms of a written direction given under Regulation 5,

( b ) to interfere with an authorised officer in the exercise of his duties under Regulation 17,

( c ) to refuse to comply with a request of an authorised officer under Regulation 17,

( d ) to disclose or use for business or commercial purposes or any other purpose any information relating to an EC type-examination in the possession of an approved body without the consent of that body,

( e ) to fail to take reasonable measures to guarantee confidentiality with regard to forwarding of any documents under Regulation 12 (3),

(f) to obstruct or interfere with an authorised officer or member of the Garda Síochána in the exercise of his powers under Regulation 18 or to refuse to give information required under paragraph (1) (b) of that Regulation, or

( g ) to contravene in any way any provision or requirement of, or under, Regulations 4, 14, 15 or 16.

(2) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of a director, manager, secretary or other officer of the body corporate, the director, manager, secretary or other officer or any person purporting to act in such capacity shall also be guilty of an offence.

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21. (1) Subject to the provisions of this Regulation, in criminal proceedings against any person for contravening Regulation 4, it shall be a defence for the person (not being the person established within the Community who first places the toy on the market within the Community) to show that he took all reasonable steps and exercised all due diligence to avoid contravening the Regulation.

(2) Where in any proceedings to which paragraph (1) applies, the defence provided by that paragraph is raised and involves an allegation that the contravention was due to—

( a ) the act or default of another; or

( b ) reliance on information given by another,

the defendant shall not, without the leave of the Court, be entitled to rely on the defence unless, not less than seven clear days before the hearing of the proceedings, he has served a notice under paragraph (3) on the person bringing the proceedings.

(3) A notice under this paragraph shall give such information identifying or assisting in the identification of the person who committed the act or default or gave the information as is in the possession of the person serving the notice at the time he serves it.

(4) A person shall not be entitled to rely on the defence provided by paragraph (1) by reason of his reliance on information supplied by another unless he shows that it was reasonable in all the circumstances for him to have relied on the information, having regard to, in particular—

( a ) the steps which he took, and those which might reasonably have been taken, for the purpose of verifying the information; and

( b ) whether he had any reason to disbelieve the information.

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22. (1) A person guilty of an offence under these Regulations shall be liable, on summary conviction, to imprisonment for a period not exceeding six months or to a fine not exceeding £1,000 or to both such imprisonment and fine.

(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under these Regulations may be instituted at any time within one year from the date on which the offence was committed.

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23. An offence under these Regulations may be prosecuted by the Minister or the Director.

24 ..

24. (1) Where a person is convicted of an offence under these Regulations, the court by or before which he is convicted may order any toy in respect of which the offence was committed to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.

(2) An order under this Regulation shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.

FIRST SCHEDULE

ANNEXES TO THE COUNCIL DIRECTIVE

ANNEX I

PRODUCTS NOT REGARDED AS TOYS FOR THE PURPOSE OF THIS DIRECTIVE

(Article 1 (1))

1. Christmas decorations.

2. Detailed scale models for adult collectors.

3. Equipment intended to be used collectively in playgrounds.

4. Sports equipment.

5. Aquatic equipment intended to be used in deep water.

6. Folk dolls and decorative dolls and other similar articles for adult collectors.

7. "Professional" toys installed in public places (shopping centres, stations, etc.)

8. Puzzles with more than 500 pieces or without picture, intended for specialists.

9. Air guns and air pistols.

10. Fireworks, including percussion caps⁽¹⁾.

11. Slings and catapults.

12. Sets of darts with metallic points.

13. Electric ovens, irons or other functional products operated at a nominal voltage exceeding 24 volts.

14. Products containing heating elements intended for use under the supervision of an adult in a teaching context.

15. Vehicles with combustion engines.

16. Toy steam engines.

17. Bicycles designed for sport or for travel on the public highway.

18. Video toys that can be connected to a video screen, operated at a nominal voltage exceeding 24 volts.

19. Babies' dummies.

20. Faithful reproductions of real fire arms.

21. Fashion jewellery for children,

⁽¹⁾ With the exception of percussion caps specifically designed for use in

toys without prejudice to more stringent provisions already existing in certain Member States.

ANNEX II

ESSENTIAL SAFETY REQUIREMENTS FOR TOYS

I. GENERAL PRINCIPLES

1. In compliance with the requirements of Article 2 of the Directive, the users of toys as well as third parties must be protected against health hazards and risk of physical injury when toys are used as intended or in a foreseeable way, bearing in mind the normal behaviour of children. Such risks are those:

( a ) which are connected with the design, construction or composition of the toy;

( b ) which are inherent in the use of the toy and cannot be completely eliminated by modifying the toy's construction and composition without altering its function or depriving it of its essential properties.

2. ( a ) The degree of risk present in the use of a toy must be commensurate with the ability of the users, and, where appropriate, their supervisors to cope with it. This applies in particular to toys which, by virtue of their functions, dimensions and characteristics, are intended for use by children of under 36 months.

( b ) To observe this principle, a minimum age for users of toys and/or the need to ensure that they are used only under adult supervision must be specified where appropriate.

3. Labels on toys and/or their packaging and the instructions for use which accompany them must draw the attention of users or their supervisors fully and effectively to the risks involved in using them and to the ways of avoiding such risks.

II. PARTICULAR RISKS

1. Physical and mechanical properties.

( a ) Toys and their parts and, in the case of fixed toys, their anchorage, must have the requisite mechanical strength and, where appropriate, stability to withstand the stresses to which they are subjected during use without breaking or becoming liable to distortion at the risk of causing physical injury.

( b ) Accessible edges, protrusions, cords, cables and fastenings on toys must be so designed and constructed that the risks of physical injury from contact with them are reduced as far as possible.

( c ) Toys must be so designed and constructed as to minimise the risk of physical injury which could be caused by the movement of their parts.

( d ) Toys, and their component parts and any detachable parts of toys which are clearly intended for use by children under 36 months must be of such dimensions as to prevent their being swallowed and/or inhaled.

( e ) Toys, and their parts and the packaging in which they are contained for retail sale must not present risk of strangulation or suffocation.

( f ) Toys intended for use in shallow water which are capable of carrying or supporting a child on the water must be designed and constructed so as to reduce as far as possible, taking into account the recommended use of the toy, any risk of loss of buoyancy of the toy and loss of support afforded to the child.

( g ) Toys which it is possible to get inside and which thereby constitute an enclosed space for occupants must have a means of exit which the latter can open easily from the inside.

( h ) Toys conferring mobility on their users must, as far as possible, incorporate a braking system which is suited to the type of toy and is commensurate with the kinetic energy developed by it. Such a system must be easy for the user to operate without risk of ejection or physical injury for the user or for third parties.

( i ) The form and composition of projectiles and the kinetic energy they may develop when fired from a toy designed for that purpose must be such that, taking into account the nature of the toy, there is no unreasonable risk of physical injury to the user or to third parties.

( j ) Toys containing heating elements must be so constructed as to ensure that:

—the maximum temperature of any accessible surfaces do not cause burns when touched;

—liquids and gases contained within toys do not reach temperatures or pressures which are such that their escape from a toy, other than for reasons essential to the proper functioning of the toy, might cause burns, scalds or other physical injury.

2. Flammability

( a ) Toys must not constitute a dangerous flammable element in the child's environment. They must therefore be composed of materials which:

(1) do not burn if directly exposed to a flame or spark or other potential seat of fire; or

(2) are not readily flammable (the flame goes out as soon as the fire cause disappears); or

(3) if they do ignite, burn slowly and present a low rate of spread of the flame; or

(4) irrespective of the toy's chemical composition, are treated so as to delay the combustion process.

Such combustible materials must not constitute a risk of ignition for other materials used in the toy.

( b ) Toys which, for reasons essential to their functioning, contain dangerous substances or preparations as defined in Council Directive 67/548/EEC⁽¹⁾, in particular, materials and equipment for chemistry experiments, model assembly, plastic or ceramic moulding, enamelling, photography or similar activities, must not contain, as such, substances or preparations which may become flammable due to the loss of non-flammable volatile components.

⁽¹⁾ O.J. No. L196, 16.8.1967, p.1/67.

( c ) Toys must not be explosive or contain elements or substances likely to explode when used as specified in Article 2 (1) of the Directive. This provision does not apply to toy percussion caps, for which reference should be made to point 10 of Annex I and the related footnote.

( d ) Toys and, in particular, chemical games and toys, must not contain as such substances or preparations:

—which, when mixed, may explode:

—through chemical reaction, or through heating;

—when mixed with oxidizing substances;

—which contain volatile components which are flammable in air and liable to form flammable or explosive vapour/air mixture.

3. Chemical properties

1. Toys must be so designed and constructed that, when used as specified in Article 2 (1) of the Directive, they do not present health hazards or risks of physical injury by ingestion; inhalation or contract with the skin, mucous tissues or eyes. They must in all cases comply with the relevant Community legislation relating to certain categories of products or to the prohibition, restriction of use or labelling of certain dangerous substances and preparations.

2. In particular, for the protection of children's health, bioavailability resulting from the use of toys must not, as an objective, exceed the following levels per day:

0,2 ug for antimony;

0,1 ug for arsenic;

25,0 ug for barium;

0,6 ug for chromium;

0,7 ug for lead;

0,5 ug for mercury;

5,0 ug for selenium;

or such other values as may be laid down for these or other substances in Community legislation based on scientific evidence.

The bioavailability of these substances means the soluble extract having toxicological significance.

3. Toys must not contain dangerous substances or preparations within the meaning of Directives 67/548/EEC and 88/379/EEC⁽¹⁾ in amounts which may harm the health of children using them. At all events it is strictly forbidden to include, in a toy, dangerous substances or preparations if they are intended to be used as such while the toy is being used.

⁽¹⁾ See page 14 of Official Journal L187, 16.7.1988.

However, where a limited number of substances or preparations are essential to the functioning of certain toys, in particular materials and equipment for chemistry experiments, model assembly, plastic or ceramic moulding, enamelling, photography or similar activities, they are permitted up to a maximum concentration level to be defined for each substance or preparation by mandate to the European Committee for Standardization (CEN) according to the procedure of the Committee set up by Directive 83/189/EEC, provided the permitted substances and preparations comply with the Community classification rules in respect of labelling, without prejudice to point 4 of Annex IV.

4. Electrical properties

( a ) Electric toys must not be powered by electricity of a nominal voltage exceeding 24 volts and no part of the toy may exceed 24 volts.

( b ) Parts of toys which are connected to, or liable to come into contact with a source of electricity capable of causing electric shock, together with the cables or other conductors through which electricity is conveyed to such parts, must be properly insulated and mechanically protected so as to prevent the risk of such shock.

( c ) Electric toys must be so designed and constructed as to ensure that the maximum temperatures reached by all directly accessible surfaces are not such as to cause burns when touched.

5. Hygiene

Toys must be so designed and manufactured as to meet the requirements of hygiene and cleanliness in order to avoid any risk of infection, sickness and contamination.

6. Radioactivity

Toys must not contain radioactive elements or substances in forms or proportions likely to be detrimental to a child's health. Council Directive 80/836/Euratom shall apply. ⁽¹⁾

⁽¹⁾ O.J. No. L246, 17.9.1980, p.1.

ANNEX III

CONDITIONS TO BE FULFILLED BY THE APPROVED BODIES

(Article 9 (1))

The bodies designated by the Member States must fulfil the following minimum conditions:

1. availability of personnel and of the necessary means and equipment;

2. technical competence and professional integrity of personnel;

3. independence, in carrying out the tests, preparing the reports, issuing the certificates and performing the surveillance provided for in this Directive, of staff and technical personnel in relation to all circles, groups or persons directly or indirectly concerned with toys;

4. maintenance of professional secrecy by personnel;

5. subscription of a civil liability insurance unless that liability is covered by the state under national law.

Fulfilment of the conditions under 1 and 2 shall be verified at intervals by the competent authorities of the Member States.

ANNEX IV

WARNINGS AND INDICATIONS OF PRECAUTIONS TO BE TAKEN WHEN USING TOYS

(Article 11 (5))

Toys must be accompanied by appropriate clearly legible warnings in order to reduce inherent risks in their use as described in the essential requirements, and specifically:

1. Toys not intended for children under 36 months

Toys which might be dangerous for children under 36 months of age shall bear a warning, for example: 'Not suitable for children under 36 months' or 'Not suitable for children under three years' together with a brief indication, which may also appear in the instructions for use, of the specific risks calling for this restriction.

This provision does not apply to toys which, on account of their function, dimensions, characteristics, properties or other cogent grounds, are manifestly unsuitable for children under 36 months.

2. Slides, suspended swings and rings, trapezes, ropes and similar toys attached to a crossbeam

Such toys shall be accompanied by instructions drawing attention to the need to carry out checks and maintenance of the main parts (suspensions, fixings, anchorages, etc.) at intervals, and pointing out that, if these checks are not carried out, the toy may cause a fall or overturn.

Instructions must also be given as to correct assembly of the toy, indicating those parts which can present dangers if it is incorrectly assembled.

3. Functional toys

Functional toys or their packaging shall bear the marking 'Warning: to be used under the direct supervision of an adult'.

In addition, these toys shall be accompanied by directions giving working instructions as well as the precautions to be taken by the user, with the warning that failure to take these precautions would expose the user to the hazards — to be specified — normally associated with the appliance or product of which the toy is a scale model or an imitation. It will also be indicated that the toy must be kept out of the reach of very young children.

'Functional toys' means toys which are used in the same way as, and are often scale models of, appliances or installations intended for adults.

4. Toys containing inherently dangerous substances or preparations. Chemical toys

( a ) Without prejudice to the application of the provisions laid down in Community directives on the classification, packaging and labelling of dangerous substances or preparations, the instructions for use of toys containing inherently dangerous substances or preparations shall bear a warning of the dangerous nature of these substances or preparations and an indication of the precautions to be taken by the user in order to avoid hazards associated with them, which shall be specified concisely according to the type of toy. The first aid to be given in the event of serious accidents resulting from the use of this type of toy shall also be mentioned. It shall also be stated that the toys must be kept out of reach of very young children.

( b ) In addition to the instructions provided for in (a), chemical toys shall bear the following marking on their packaging:

'Warning: for children over ^(xx) years of age only. For use under adult supervision'.

In particular, the following are regarded as chemical toys: chemistry sets, plastic embedding sets, miniature workshop for ceramics, enamelling or photography and similar toys.

5. Skates and skateboards for children

If these products are offered for sale as toys they shall bear the marking:

'Warning: protective equipment should be worn'.

Moreover, the instructions for use shall contain a reminder that the toy must be used with caution, since it requires great skill, so as to avoid falls or collisions causing injury to the user and third parties. Some indication shall also be given as to recommended protective equipment (helmets, gloves, knee-pads, elbow-pads, etc.).

6. Toys intended for use in water

The toys intended for use in water defined in section II.1 ( f ) of Annex II shall contain the warning in accordance with CEN's brief to adapt standard EN/71, parts 1 and 2:

"Warning: Only to be used in water in which the child is within its depth and under supervision".

^(xx) Age to be decided by the manufacturer.

SECOND SCHEDULE

SPECIMEN FORM OF EC MARK

GIVEN under my Official Seal this 13th day of February, 1990.

DESMOND O'MALLEY,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

These Regulations implement Council Directive 88/378/EEC on the approximation of the laws of the Member States concerning the safety of toys. They prohibit the placing of toys on the market unless they are safe.

Toys must carry (i) a CE mark indicating that they conform to the relevant harmonised EC standards and/or that they have been approved by an Approved Body and (ii) on the toys or on the packaging, the name and address of the manufacturer or his authorised representative established within the Community or the importer of the toys into the Community.

The person first putting toys on the market must keep available for inspection a dossier giving detailed information about the manufacturer/storage of the toys and a description of the means whereby conformity with the legal requirements was established.

The Regulations apply not only to the manufacturer or importer into the Community but to anyone who supplies toys in the course of business. However, wholesalers or retailers may be able to plead certain defences in the event of a prosecution.

Toys placed on the market prior to the making of these Regulations are covered by S.I. No. 44 of 1985 which sets out the maximum toxicity and cellulosic levels allowable.