Whose liability is it anyway?
It’s safe to say the plastic crisis is globally known. Many are working hard to find the right solution to single-use plastic and reuse/refill is one alternative.
Reuse and refill has been encouraged from a legal and policy perspective from a global down to a national level. Examples include The New Plastics Economy global commitment, which brings together brands from across the globe, a European strategy for plastics in a circular economy and Our waste, our resources: a strategy for England. Although this is positive news some of these approaches are purely political policy at present, setting out the long-term approach but not putting anything in law yet.
We do however have existing guidance and laws which apply to the current challenge areas we are addressing at the Plastic Hackathon. For example the UK government’s guidance notes for Packaging (Essential requirements) regulations (2015), the UK Food Standard Agency’s guidance around avoiding cross-contamination of food stuffs and Consumer protection: The General Product Safety Regulations (2005).
So, what should we be mindful of when thinking about liability within the current legal and policy framework? First of all, it is worth thinking about what liability is and how we can prevent negligence therefore giving the manufacturer, the vendor and the consumer the best reuse/refill experience.
The main focus for liability is the existence and consequent infringement of a duty of care. The question is does this come from the manufacturer, the vendor and/or the consumer in the world of reuse and refill? Let’s look at an example from one of our challenge areas to try and illustrate the many angels we need to consider – grab and go food.
When purchasing a coffee in a reusable cup, can the consumer turn up with any old cup, does it have to be a cup specific to that vendor, should the vendor clean the cup before putting coffee in or is it up to the consumer to do so beforehand? Should the vendor tell the consumer their preference and refuse a transaction if the consumer does not abide? And what happens if the consumer gets ill after consuming this coffee?
This small simple example raises many questions. But it also demonstrates the main requisites that rule books and law cases have written around liability* and the evaluation of the reasonable standard duty of care (or lack thereof):
-A contract between two parties to raise the duty of care is not necessary (such duty can be included in statuary law or omitted).
-The risk of harm for others must be reasonably foreseeable by the prudent person.
-There was a possibility to avoid the consequences of the risky act or omission.
-It is fair, just and reasonable that the law should impose a duty of a given scope on one party for the benefit of the other especially for indirect harm (not direct physical harm).
-The risk of harm could happen to anyone according to the law of proximity.
-It must be clear that the injury was caused by a breach of the duty of care.
Let’s look at another example of a small grocery shop which allows customers to put food in reusable containers. The grocer has a duty to keep food at high hygienic standards – safe to eat for consumers. This means they must minimise any risk of contamination through risk assessment. Although at present there is no clear duty for food retailers to clean and sanitize consumers own reusable containers, but they can voluntarily provide such additional services. The EU Reuse of Primary Packaging Report states that if the consumer is bringing their own reusable container they are responsible for its proper use. However, if the vendor is providing the container then they must keep them clean and in good repair to protect foodstuffs from contamination according to EC Regulation on The Hygiene of Foodstuffs.
The more parties we bring in the more complex the matrix. So, what about if said grocer has a machine in-store, provided by a third-party, which cleans reusable containers? This will ensure containers are cleaned to a good standard but who is liable if the machine does not work?
First of all, retailers hold a duty of care towards consumers to keep them reasonably safe to the usage of the premises, meaning that choosing where to place external cleaning (or reverse vending) machines must be considered carefully. In terms of hygienic practices, then, HACCP principles require retailer employees to take reasonable steps to keep vending machines and surfaces in contact with food adequately cleaned and disinfected, to avoid risks of contamination. However, again, what is reasonable or due to expect varies depending on the size (and economical resources) of the company. This would tie larger food retailers down to stricter hygiene procedures than small corner shops. Within this fragmented context, a more active involvement of consumers would make the whole process much easier.
Going back to our earlier example of coffee cups there have already been article quoting the Food Standard Agency around how and when we should wash our reusable coffee cups and we are sure more will emerge as the reuse/refill market grows.
It is important to note that these are just examples of regulations in one political and economic union; laws may differ depending upon the country or union. Very similar questions around liability must be considered across our other challenge areas but dependent on the market we are assessing different rules and regulations must be considered. For example, for personal care we must look at the EC Regulation of Cosmetic Products Enforcement Regulations, 2013 which states in case there is a non-pre-packaged product precautions of use must be on the refill container or on a leaflet within proximity.
It seems we have a long way to go however this gives us a new opportunity – to write the rulebook. The process used to end with the consumer but now it doesn’t therefore the new reuse/refill solutions we are suggesting, bring with them new legal challenges. That said we know corporates who are already operating in our fields are doing extensive social analysis in this area to truly understand the challenges we face – like our friends over at Ecover who are researching and investing in the new reuse/refill attitude.
So, whilst assessing the law of the land – national and global – we need to question “What is good practice?” as we build this new market. Collaboration between manufacturer and retailer is key as well as educating consumers to ensure we change behaviour. We also need to realise that each product, service offering and the market it sits in is unique, so we cannot apply the same rules and regulations to everything.
The one thing we must ensure is that reuse/refill works for all when reducing the circulation of single-use plastic.
Prudent person: The concept of prudent or reasonable person is a comparative standard used by courts for determining the conduct of the ordinary person to eventually assess liability. A reasonable person is defined as the “person taking reasonable precautions” and acting “with reference to the average circumstances of the temperature in ordinary years”¹. Over time this term has evolved to the “man in the street”² and the criteria in which it is interpreted has been extended and tailored according to specific contexts – especially after being criticised for its vagueness, and inappropriateness to suit to each case.
¹[BLYTH v. BIRMINGHAM WATERWORKS CO. COURT OF EXCHEQUER – 1856].
²[Hall v Brooklands Auto Club 
Law of proximity: According to the sufficient proximity rule, “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” Lord Atkin, extended negligence to the immediate party, by defining neighbours as the “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”¹
¹[Donoghue v Stevenson  case ]
Written by: Erika Solimeo
Edited by: Gemma Armes
New Plastics Economy Global commitment
Our waste, our resources: a strategy for England (Dec. 2018 awaiting further guidance in 2019)
A European Strategy for Plastics in a Circular Economy
Reuse of Primary Packaging Report
Proposal for a Directive on the reduction of the impact of certain plastic products on the environment (by Committee on the Environment, Public Health and Food Safety (ENVI))
Reuse Activities and Waste Regulation, SEPA guidance
Packaging (Essential Requirements) Regulations (2015)
UK Food Standard Agency concerns to raw cows’ drinking milk and raw meat.
Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582
Dean & Chapter Of Rochester Cathedral v Leonard Debell (2016) EWCA Civ 1094 CA (Civ Div)(Hallett LJ, Elias LJ)]
Donoghue v Stevenson (1932)
Caparo Industries Plc v Dickman (1990)
Robinson v Chief Constable of West Yorkshire Police (2014)
Le Lievre v. Gould case
Froom vs Butcher (1975)
Badger Vs Ministry Of Defence (2006)
Food, England the Food Safety and Hygiene (England) Regulations (2013)
The Materials and Articles in Contact with Food (England) Regulations (2012)
Occupiers Liability Act (1957)
Directive 2001/95/EC, Regulation (EC) 178/2002 implemented through General Food Regulations 2004, Consumer Protection The General Product Safety Regulations 2005 )
Directive 2014/40/EU on electronic cigarettes and refill containers
Schwarz v Bürgermeister Der Landeshauptstadt Salzburg (2006) 1 CMLR 34
Regulation (EC) No. 852/2004 on the Hygiene of foodstuff
Regulation (EC) No. 1223/2009 implemented in UK through The Cosmetic Products Enforcement Regulations (2013)
BLYTH v. BIRMINGHAM WATERWORKS CO. COURT OF EXCHEQUER – 1856
Hall v Brooklands Auto Club (1933)
[Donoghue v Stevenson  case ]
This blog post is for general information purpose only. Whilst all information contained in this report has been obtained from sources believed to be accurate and reliable, this publication should not be viewed as a comprehensive guide of all questions retailers, shops, consumers or any other stakeholder should consider or ask an institution, but rather as a starting point for questions specifically related to the issues presented in this publication. For these reasons and given the continual updates in legislation, we make no warranties or representations, express or implied, as to the timeliness, accuracy or completeness of the information contained or referenced therein. Equally, we will not be responsible for any errors, omissions, inaccurate information, or any decisions made in reliance on this blog and shall not be liable for any claims or losses of any nature in connection with information contained in such post. The content expressed in this publication is based on the documents specified in the sources. We therefore encourage readers to read them carefully.