Myriad Marketing Toy Safety Judgment

Important precedent for retailers and distributors: High Court finds that novelty containers can be toys-toy safety standard can apply to them

A recent Dunedin High Court decision has set an important precedent for retailers and distributors: novelty containers can be toys and the product safety standard for toys can apply to them.

The High Court decision relates to "Big Baby" and "Chewy Baby" brand sweets packaged in imitation babies' bottles. The products were imported and distributed in New Zealand by Myriad Marketing Limited.

Commerce Commission Chair John Belgrave said that Myriad Marketing claimed that the containers were merely humorous confectionary packaging and were not required to comply with the product safety standard for toys.

Justice Panckhurst determined that the products were capable of having a dual purpose and that in this case they were also toys designed for use by young children.

The decision means that suppliers and distributors must be aware that novelty packaging may, on an objective basis, also be a toy for young children, and if this is so it must comply with the product safety standard.

Mr Belgrave advised that retailers and distributors, and lawyers advising them, get copies of Justice Panckhurst's judgment. The judgment was issued by the Dunedin High Court on 11 July 2001.

The safety standard applies to toys for children aged up to three because up to about that age children do not have a properly developed coughing reflex. If they swallow or inhale an object that sticks in their throat, then they often do not cough and must be helped before they choke.

The standard prohibits toys, and parts of toys, that fit completely into a measuring cylinder about the size of a 35mm film canister. In the Myriad case, the imitation babies' bottles had removable teets that were too small to meet the standard.

In June last year Myriad consented to Justice Panckhurst imposing injunctions preventing further supply of "Big Baby" and "Chewy Baby" bottles with removable teets.

Since the injunction Myriad has supplied "Big Baby" and "Chewy Baby" bottles with teets that could not be removed, and these altered bottles comply with the safety standard.

The Commission did not seek penalties or costs against Myriad.

In an unrelated case, the Christchurch District Court on Tuesday fined John Monk Trading Co Limited $12,000 for importing baby rattles that did not meet the safety standard.

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