When retailers bear the cost of lab testing of products | In Principle

During the course of an inspection conducted by the Trade Inspectorate, inspectors may collect samples of products offered by retail sellers for testing to determine whether products meet applicable requirements. Depending on the product, these include rules for general product safety (under the Act on General Product Safety), fundamental and special requirements (under the Compliance System Act and specific regulations), standardisation documents, and declarations by producers and sellers with respect to product characteristics.

Inspectors order tests of product samples to be conducted by the inspection and analysis laboratories of the Trade Inspectorate itself, or in the case of more specialised products, by outside labs.

The costs of the tests are charged to the retailer if the tests show that the product does not meet quality or safety requirements applicable to the product. In order to charge the seller with the costs, it is irrelevant whether the seller is also the producer of the given product or has repackaged the product or interfered with the substance of the product in any way. The financial burden imposed on the retailer follows from the rule that every entity in the distribution chain is required to determine, using the available information and its own professional knowhow, whether the given product meets applicable safety requirements. If not, any participant in the distribution chain is required to hold back the product from further sale.

A retailer who covers the costs of laboratory tests may be able to recoup them from the supplier of the product, but will be required to present evidence in the claim against the supplier that the product was of insufficient quality when supplied and that the supplier was at fault in violating applicable provisions of law or its contract with the retailer.

Article published on 2 December 2010 in the “Commercial Law Academy” series in Dziennik Gazeta Prawna daily