Toy Wholesaler Fined For Train With Choking Risk For Young Children

A train set supplied in breach of the Product Safety Standard for children’s toys was found through the Commerce Commission’s programme of retail inspections resulting in a $55,250 fine for New Zealand wholesale distribution business, 1st Mart Limited.

When tested by the Commission, small parts of the toy came free presenting a choking or suffocation risk. The batteries in the toy also became accessible, posing a further risk of serious injury or fatality if swallowed.

144 units of the non-compliant toy, were imported to New Zealand in 2018 and supplied to around 30 retailers across New Zealand between August 2018 and February 2021.

General Manager Fair Trading Vanessa Horne says, “Our routine inspection programme and the prosecution of these cases continues to be a priority for the Commission because they are about the safety of young children.

“It’s really important that toy suppliers to the New Zealand market understand and meet their legal obligations so that New Zealand children are not at risk of serious harm, as we saw in this case.”

Retailers must ensure that toys they are selling meet the requirements of the Standard before they are sold. The Commission recommends asking suppliers to provide certification which confirms this but also stresses that retailers ultimately need to make sure that the toys that they sell comply with the law.

Despite being labelled for children over the age of three, it was clear the toy was designed for use by children 36 months and under due to its size and weight, bright and vibrant colours, and its similarity with the ‘Thomas the Tank Engine’ brand which is marketed to children under three. The Commission understands the toy was not an official, licensed Thomas the Tank Engine branded product.

This is the second time that 1st Mart has been fined for breaching the Product Safety Standard for children’s toys. In 2019, it was fined $45,000 for supplying an unsafe pig toy that resembled the ‘Peppa Pig’ brand of toys. 1st Mart’s prior conviction led to the Court increasing the starting point for the fine in this case by 10%.

In sentencing in the Manukau District Court on 5 July 2022, Judge Wharepouri said there is little doubt that the defendant was aware of the standards that needed to be complied with, the importance of meeting those standards and the importance of not supplying to vulnerable children in the marketplace toys which failed to meet one or other of the relevant safety standards.

Judge Wharepouri also said in his view the gravity of the present offending can only be assessed at the reasonably high level as high carelessness bordering on recklessness.

The Commission’s toy safety investigations often result from its unannounced visits to retailers, which since 2017 have included visits in Auckland, Wellington, Tauranga, Rotorua, Gisborne, Hawke’s Bay, Canterbury, Nelson, Marlborough, Manawatu and Whanganui.

As well as a reminder for businesses to check the product safety standards, the Commission encourages consumers to check toys are appropriate for children aged three years and under and be aware of the risks that toys can present if small parts are easily removed from them or broken off.

Background
In response to the Commission’s investigation, 1st Mart initiated a recall notice via Trading Standards and contacted all retailers advising them to stop selling the toy and post the recall notice in the shop. The retail shops had sold all units supplied and no units of the toy were successfully recalled.

Product Safety Standards
Regulations set safety standards that suppliers of goods must comply with. The regulations set out what type of goods are covered, what standard/s or parts of standard/s apply to New Zealand and any variations to those standard/s. Failure to comply with product safety standards set by regulations breaches the Fair Trading Act.

The mandatory standard for toys covers toys intended for use by children up to 36 months of age. It aims to reduce the risk of injury or death to young children by ensuring that toys intended for their use are not so small, or do not have parts so small, that they could be swallowed or ingested causing choking. 
Testing of such products includes tension, torque (twist), and drop testing, and it is designed to simulate normal use and reasonably foreseeable abuse of toys by young children.

Toy safety videos
The Commission has released a set of videos designed to help businesses, all of which can be found on the Children’s toys page of the Commission website, along with further guidance for businesses:

• ‘The story of a toy’ shows the potentially devastating impact of supplying an unsafe toy
• ‘Any doubts? Don’t sell’ gives guidance on the mandatory product safety standards, particularly that for toys for children 36 months and under.

Relevant cases

• Wholesaler and retailer fined for selling hot water bottles and toys that did not comply with mandatory safety standards.
• 1st Mart fined for supplying unsafe toy pig.

Since 2017, we have visited over 430 retailers across eleven of New Zealand’s regions, and prosecuted 29 businesses as well as issued warnings to 61 businesses relating to the supply of 151 different unsafe products. Of the 151 unsafe products over 70 are toys, and the majority of these enforcement outcomes, are the result of the Commission’s inspection work.

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