Testing due diligence of footwear
Exploring the importance of all companies in the footwear supply chain recognising their legal responsibilities.
by Mark Southam
Image © iStockphoto.com | Beeldbewerking
High profile recalls of toys and other consumer goods show how important it is to ensure that products are safe before they go on sale. Supplying substandard products may have disastrous consequences, ranging from loss of business to damage of reputation, fines and even imprisonment in many parts of the world if a serious safety-related offence has been committed.
Footwear is no exception. In recent years, we have seen a number of recalls of footwear because of problems such as excessive levels of chromium VI in leather or infants’ shoes with loose trims which could become a choking hazard. There have been several instances of customers successfully claiming compensation through the courts as a result of injury caused by faulty footwear.
Retailers and distributors of consumer products must be sure that what they are selling satisfies relevant legislation. If an unsafe product is found in the marketplace, the retail outlet that directly supplied the goods may be liable. The retailer and, in many cases, the distributor or importer (often all three), could bear the brunt of any investigation and subsequent enforcement action. If the manufacturer is also located in an area in which the enforcement authority has jurisdiction, it too might be investigated.
Under most legislation that prohibits unsafe products being placed on the market, it does not matter whether such hazardous items are supplied knowingly or because an individual or company is unaware that the product is unsafe. The fact that the law has been contravened is sufficient to allow a court to convict. However, one recognised defence to this type of ‘strict liability’ offence is ‘due diligence’, whereby the law may consider in mitigation the efforts made by businesses to comply with its demands. Box 1 gives a brief summary of the key features of a due diligence process.
Box 1: Due diligence – what does this mean in practice?
- Assess the risk: To assess and identify risk, it will be necessary to anticipate how a product will be used and maintained. Manufacturers must design products that substantially reduce any risk and a pre-production assessment is vital. The control system used must relate to the nature of the business and its products.
- Verify the performance: Reasonable steps should be identified and then taken to verify product standards for each stage of manufacture and supply. These steps form the basis of the control system.
- Document the system: The control system needs to ensure that all steps taken are documented. All information regarding products – for example, their materials and construction – should be noted to provide technical supporting evidence.
- Operate the system: Checks will be needed to confirm that the system is operational. It is a continuous activity with monitoring throughout manufacture and supply.
- Review the system: The system should be regularly reviewed and updated. Complaints should be monitored and returns examined to audit performance. In addition, random check testing of product on the market is an appropriate extra step to demonstrate product standards are consistent
To use this defence, it must be shown that all reasonable precautions were addressed and all steps were taken to avoid committing the offence. Whether or not a defence will be successful depends on the circumstances surrounding each case.
The size of the business, the amount of risk and the impact of failure associated with the product are some of the factors that the court will take into account to help determine what constitutes ‘all reasonable precautions’. What is deemed reasonable for a small company may be considered inadequate for a larger one.
A company should examine each activity or process within its organisation to assess areas of vulnerability and determine the likelihood of a problem occurring, whereby faulty footwear could be placed on the market. Appropriate safeguards should then be put in place and regularly monitored to ensure compliance. The aim should be to control all risks by taking the precautions necessary to minimise any chance of something going wrong, to detect potential hazards early and put them right before the product goes on sale and an offence is committed. There is no general formula for creating a due diligence system, because each business is different. Judgement will be needed to decide what is necessary and feasible, taking into account accepted industry standards and legal requirements.
The system must be appropriate to the size of the business and the associated risk. Where the risk of a problem occurring is high, more effort will be expected in terms of control measures. The bigger the company, the more the law will expect to be done if a due diligence defence is to be successful.
A number of recent problems with consumer goods have resulted in recall of the entire production because the companies concerned could not identify or trace individual non-compliant batches. Recalling just the faulty batches may well have been less of a financial burden. Although many manufacturers may have formal procedures for assessing initial designs and prototypes before full-scale production, and then to carry out some form of ongoing production conformity check, it is important to be able to link these checks to each shipment made to the retailer.
Established and effective procedures to ensure that actual shipments of products are shown to be ‘quality assured’, coupled with an effective recall system if a problem does occur, can help with a due diligence defence. This may satisfy a court that the supplier took all reasonable steps to prevent an inappropriate product from being placed on the market.
So, how can retailers and distributors implement realistic ongoing conformity procedures? Typically, quality assurance systems, quality control inspection and testing are the key considerations. However, the best way to minimise potential problems is to work with reputable manufacturers who build good quality into the product in the first place rather than trying to identify poor quality products at the inspection stage.
Control of imported products can be difficult, particularly for smaller organisations that find it impractical to have full time on-site representation at the manufacturing premises. Working with manufacturers that have received ISO 9001 accreditation from a recognised certification body can provide confidence. A typical quality assurance system will have documented procedures and established goods inwards control, coupled with in-process testing, inspection and a final product check. The system will be regularly audited and reviewed, implementing corrective and preventative actions where appropriate.
Inspection and test
Inspection of products is a key quality control process for many organisations. Those with quality management systems (such as ISO 9000) will usually have raw material, in-process or final inspection in place. For companies without a formal quality management system, inspection and test may be the only means of confirming product quality, and is often a contractual obligation.
Regular testing is often associated with quality control and quality assurance systems, and testing often forms a fundamental part of the pre-production process. New styles should use individual components known to be safe and fit for purpose. The product as a whole should also be thoroughly reviewed for fitness for purpose before it first goes on the market. This test programme should be comprehensive, and assess all properties relevant to that product. It should include aspects relating to durability, as well as safety-related issues and any special claims with which the product may be marketed (such as water resistance and comfort).
Many manufacturers and retailers have their own testing specifications, with a minimum set of standards against which to assess the test results. These standards may well be based on the retailer’s or manufacturer’s own experiences, including rates of returns, price and customer expectations. However, standards must not be set so low that safety issues are compromised. SATRA’s performance guidelines for testing, construction and fitting are internationally recognised as providing a sound basis for assessing whole footwear and footwear components for ‘fitness for purpose’ and, indeed, have been used in the courts as a basis for assessing footwear.
Product testing should not be confined to pre-production alone. During the production run of a shoe style, it is possible that changes made to the materials or manufacturing methods used may have a significant effect on the quality of the product and possibly make it unsafe. There are various reasons that this might happen:
- inconsistency between or even within batches of one or more components
- the change of a supplier of one or more components
- changes in production methods.
To ensure that products continue to comply, they should be checked regularly. A full assessment of all properties may not be necessary, but key properties certainly need to be checked regularly. Such specific assessment can be backed up by a periodic full test. How often to sample and test is a fundamental question. The key factor is having confidence that testing is representative of the batch. SATRA is unaware of any international rules that detail sampling requirements specifically for footwear. Testing once per season, per style or per colour is commonplace for some properties. However, for safety-related issues, this is unlikely to be good enough – a daily or batch testing regime is better.
Compliance with a specific standard or guideline does not necessarily mean that a product is safe. There may be other risks associated with a particular product which the standard or guideline does not cover. A risk assessment must, therefore, be an intrinsic part of assessing a product’s safety, in addition to carrying out the ‘routine’ tests.
For example, children’s boots with decorative pompoms on the ends of cords attached to the front of the upper are very popular. The attachment strength of the pompoms is an obvious aspect to be checked, particularly in infants’ sizes where choking hazards must be considered. However, a risk assessment which is correctly carried out would also consider the possibility of the cords on the left and right boots getting tangled together during normal walking, or becoming entangled in, for instance, bicycle chains or escalators. We are aware of at least one product recall where this was found to be a problem with a style where the cords were too long for the footwear.
Therefore, a number of fundamental questions need to be answered: What similarities does this product have with others that have historically led to problems, and have steps been taken to overcome this? If this is a new product, what testing has been done by the supplier or what verification can be provided? What testing of components and final design should be conducted? Is the product reasonably safe for the intended user? What could the end user do with the product that should be considered unsafe in a foreseeable manner, but not through misuse? What could be seen as extreme applications for the product – for instance, climatic or environmental?
At all stages, full documentation of testing must be kept. Essentially, this becomes the product’s ‘technical file’. It should include details of the product, its source, test results and any action that has been taken.
It is most important that this is carried out on examples of the actual shipment to the importer, with full documented traceability. No matter how many test reports a company has, they are of little value if they cannot be traced back to the actual batch of products supplied to individual distributors and retailers. Reports from an independent organisation such as SATRA add credibility, and samples can be selected at any stage during the supply chain if required.
How can we help?
Please email firstname.lastname@example.org for further information on due diligence within the footwear supply chain.
This article was originally published on page 36 of the July/August 2020 issue of SATRA Bulletin.