Recalls in certain sectors are easier to initiate than others.

Food contamination, by and large, always initiates a recall, based more on the PR/media feeding frenzy and damage to company reputation which might follow, rather than any physical harm to consumers.

The recent Sudan I dye scare is a prime example.

For others, the decision to recall a product is not so clear.

In these circumstances, traditionally the company concerned has weighed up a number of factors following a thorough investigation and fact finding exercise.

Though usually undertaken with a proportionate degree of urgency, in law, the timing and the decision taken is that by the company alone, on a voluntary basis, with little or no power for any enforcement agency to force a rethink on the part of the company or indeed initiate a recall itself. Nor is there any legal requirement for a company involved in making the decision to notify the authorities of a problem in the first place.

In practice, most companies involve their local Trading Standards Department or Environmental Health Officer and do take heed of their advice.

A new regime This voluntary action by British producers and retailers is set to change with the coming into force on October 1 of new powers under the General Product Safety Regulations 2005.

Under these new regulations enforcement agencies will have new powers to order product recalls albeit, allegedly, "as a last resort";

companies will be required to notify enforcement authorities when they have recalled an unsafe product; companies will be required to keep a register of consumer complaints to provide an early warning system for any safety problems that require action; companies will be required to keep and provide documentation that will allow the enforcement authorities to identify the origin of an unsafe product and a specific requirement on producers and distributors will be imposed, within the limits of their activities, to co-operate with the enforcement authorities at their request.

This will include the provision of information relating to the product, the nature of the risk, the products supply and marketing data and give an indication as to the appropriate action to remove the risk from consumers; and a principle will be established that if the 2005 Regulations go further than specific product legislation (as in the safety of toys), then the greater powers conferred will apply.

Note here that most, if not all, of the specific product legislation gives no power to order a mandatory recall of the product from the consumer.

From October 1, 2005, that will change.

Enforcement agencies The guidance from the Department for Trade and Industry (DTI) which accompanies the regulations emphasises that voluntary action will be encouraged as an alternative to formal enforcement.

The guidance also lists a range of draconian enforcement measures available to authorities including: suspension notices; the requirement to mark and warn; withdrawal notices; recall notices; and forfeiture and destruction of the product itself.

There is, of course, in addition to the above, the possibility of criminal proceedings being brought which carry both financial and custodial penalties. For serious breaches such as supplying or placing an "unsafe" product on the market or a breach of a safety notice, the maximum penalty fine will be £20,000 or 12 months imprisonment.

For other less serious offences, the maximum will be £5,000 or three months imprisonment.

As is currently the position with most consumer legislation, if the offence can be attributable to a company director or manager, then that person, as well as the company, can be prosecuted.

Equally, the new regulations provide for a "due diligence" defence that allows a company to argue that it took all reasonable steps and exercised all due diligence to avoid committing the alleged offence.

Note here, however, that merely following an industry code of practice or applying the British Standards will not, in itself, provide a defence to a company though admittedly it helps.

The regulations do nothing to change or help the decision making process of a company, whether it be producer or distributor, in deciding whether there should be a product recall other than in the taking into account the fact that if the business does not take the first step, then the enforcement authority may do so.

Interestingly, and very importantly, where disagreement exists between the enforcement authority and the company over whether a recall is necessary, the business may require the authority to seek a reasoned opinion on the case for recall under a relatively simple scheme operated by the Chartered Institute of Arbitrators set up by the DTI specifically for the purpose.

Enforcement authorities are expected to take account of the advice received when coming to a final decision on whether or not to serve a recall notice.

At first blush it appears, therefore, that the risk of a draconian stance by an enforcement authority against the wishes of a company may well be reduced but not completely done away with.

On a more positive note, the regulations do now provide an all encompassing piece of legislation and statutory "code" for companies to have both a regard to and to follow should the worst thing happen. To that extent, the new regulations are to be welcomed.

Paul Burnley is a head of corporate defence, Leeds, in the DLA Piper international law firm.