PRODUCT RECALL

Which manufacturer and/or distributor has not been confronted with the need to recall products manufactured or distributed insofar as they posed a risk to the safety and health of people? 

Whatever the field concerned (automotive, naval, food, health, etc.), the risk of seeing the civil or even criminal liability of manufacturers and/or distributors is real. 

Apart from the legal risk, a poorly controlled recall campaign can also have disastrous consequences in terms of image and lead to the ruin of a manufacturer’s reputation. 

Our Firm has been regularly supporting French and foreign manufacturers for more than 10 years in the management of campaigns or product recalls, both at the pre-litigation stage (support in crisis management, decision to launch a product recall, dissemination of information to the public and distributors, implementation of the recall campaign) and litigation (occurrence of a claim related to a defective product put into service, etc.).

1. What are the obligations of a manufacturer? 

In terms of product liability, the law imposes on the manufacturer an obligation to deliver products placed on the market in conformity. The manufacturer must thus provide the purchaser of a product, even if the latter is a professional, with all the information necessary for its use and inform him, if necessary, of the risks likely to result therefrom. His responsibility is particularly heavy and, in accordance with the obligation of transparency to which he is bound, he must inform both his customers and his distribution network as soon as he becomes aware of the defective nature of a product.  

It is important to note that the jurisprudence deduces from the simple lack of information of the producer, a defect of the product.  

It is also the manufacturer’s responsibility to take the necessary steps to withdraw or recall a product placed on the market.

2. The manufacturer must distribute the information to the public and to its distributors  

As any product is marketed through a distribution network, the effectiveness of the procedure or recall campaign requires ensuring the proper dissemination of information.  

In the context of litigation, the challenge will be for the manufacturer to demonstrate that the recall campaign was carried out effectively, in order to limit its liability. In the same way, the manufacturer may also seek the liability of the distributor and request its guarantee in the event of a conviction in the event that the distributor has not implemented the product recall despite the manufacturer having regularly informed it. 

As far as distributors are concerned, they must be particularly diligent and participate fully in the recall campaigns implemented by the manufacturer, in particular by providing the manufacturer with a list of the places where the defective products have been distributed, under penalty of not be able to obtain the manufacturer’s warranty in the event of a conviction.

3. Our service offering and our deliverables 

Pre-litigation : 

• Support in crisis management, 
• Support in the implementation of a product recall/withdrawal and follow-up, 
• Establishment of a dedicated working group with the client, raising awareness of the members of the working group on the importance of the confidentiality of exchanges and shared documents,  
• Organization of work meetings and definition of a detailed retroplanning, 
• Analysis of the regulations applicable to the product concerned and analysis of the risks incurred with the support of a dedicated team and implementation of a legal watch,  
• Definition of an information dissemination strategy taking into account the applicable legislation and the risks incurred 

 Litigation : 

• Support in crisis management, 
• Establishment of a dedicated working group with the client, raising awareness of the members of the working group on the importance of the confidentiality of exchanges and shared documents,  
• Organization of work meetings and definition of a detailed retroplanning, 
• Identification and analysis of the risks incurred,  
• Development of a defense strategy, 
• Management and monitoring of litigation before civil, administrative and criminal courts, both in France and abroad thanks to the Firm’s monitoring offer in the context of transnational litigation.