2008/329/EC: Commission Decision of 21 April 2008 requiring Member States to ensure that magnetic toys placed or made available on the market display a warning about the health and safety risks they pose (notified under document number C(2008) 1484) (Text with EEA relevance)
Date: 2008-04-21
Institutions: European Commission
Subjects: consumer information, consumer protection, electro-magnetic equipment, marketing standard, product safety, toy industry

L 114/90

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Official Journal of the European Union

26.4.2008

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is not obligatory)

II

DECISIONS

COMMISSION

COMMISSION DECISION

of 21 April 2008

requiring Member States to ensure that magnetic toys placed or made available on the market
display a warning about the health and safety risks they pose

(notified under document number C(2008) 1484)

(Text with EEA relevance)

(2008/329/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

producers are obliged to place only safe toys on the
market.

Having regard to the Treaty
Community,

establishing the European

the European
Having regard to Directive 2001/95/EC of
Parliament and of
the Council of 3 December 2001 on
general product safety (1), and in particular Article 13 thereof,

Having consulted the Member States,

Whereas:

(2)

(3)

(1)

Pursuant to Directive 2001/95/EC and Council Directive
88/378/EEC of 3 May 1988 on the approximation of the
laws of
the Member States concerning the safety of
toys (2), as amended by Council Directive 93/68/EEC (3),

(1) OJ L 11, 15.1.2002, p. 4.
(2) OJ L 187, 16.7.1988, p. 1. Directive as amended by Directive

93/68/EEC (OJ L 220, 30.8.1993, p. 1).

(3) OJ L 220, 30.8.1993, p. 1.

In addition,

to facilitate
safety

the Directive.
in order

Directive 88/378/EEC lays down the essential safety
requirements that toys must meet to ensure the safety
the Directive
objectives of
the proof of
provides
that,
conformity with the
requirements,
essential
European standards concerning the design and compo-
sition of toys should be drawn up by the standardisation
bodies. Currently the risk posed by magnets is covered
of Directive
by
general
88/378/EEC, but
lay down
particular
safety requirements dealing with the risk
posed by magnets.

safety
the Directive does not

requirement

the

The European Committee for Standardisation (CEN)
issued European standard EN 71-1:2005 ‘Safety of toys
— Part I: mechanical and physical properties’ which is a
consolidated version of harmonised standard EN 71-
1:1998 and its 11 amendments. Toys complying with
the standard are presumed to be in conformity with
the essential requirements of Directive 88/378/EEC, as
far as the specific requirements covered by the standard
are concerned. The standard does not currently contain
technical requirements for magnetic toys. In accordance
with Article 8(2)(a) of Directive 88/378/EEC, producers
must have recourse to EC type-examination when a
harmonised standard does not cover all the risks that a
toy may present.

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(4)

(5)

(6)

(7)

in

In order to address the specific risks of magnetic toys, on
25 May 2007 the Commission gave a mandate to
CEN (1),
in accordance with Directive 98/34/EC of the
European Parliament and of
the Council of 22 June
1998 laying down a procedure for the provision of infor-
mation
standards
the
technical
field
and regulations (2),
to revise the European standard
EN 71-1:2005 within 24 months. Pending the drawing
up and entry into force of the revised standard,
it is
necessary to address immediately the risks posed by
magnetic toys in order to minimise further accidents to
children caused by these
toys by improving the
knowledge of the risks.

of

In addition to Directive 88/378/EEC, the safety of toys is
covered by Directive 2001/95/EC which sets out
the
market surveillance framework for consumer products.
According to Article 13 of Directive 2001/95/EC, if the
European Commission becomes
certain
products present a serious risk to the health and safety
of consumers, it may, under certain conditions, adopt a
decision requiring Member States to take temporary
measures intended in particular
to restrict or make
subject to specific conditions the placing and making
available on the market of such products.

aware

that

Such a decision may be adopted if (a) Member States
differ significantly on the approach adopted or to be
(b) the risk
adopted to deal with the risk concerned;
cannot,
in view of the nature of the safety issue, be
dealt with in a manner compatible with the degree of
urgency of the case under other procedures laid down by
the specific Community legislation applicable to the
product concerned; and (c) the risk can be eliminated
appropriate measures
effectively only by
adopting
in order to ensure a
applicable at Community level,
consistent and high level of protection of
the health
and safety of consumers and the proper functioning of
the internal market.

A serious risk has recently emerged concerning magnets
in toys. Even though magnets have been used in toys for
a long time,
in the last few years they have become
increasingly powerful and they can become detached
more easily if attached using the same techniques as
those employed in the past. Moreover, given their
loose magnets or magnetic parts
increased strength,
used in toys now pose a higher
serious
accidents than in the past.

risk of

(9)

(10)

(11)

(12)

(8)

This serious risk has been established by a number of
accidents that were reported worldwide in the course of

(13)

2006 and 2007 where children had swallowed magnets
detached from toys or small parts of toys containing
magnets. When more than one magnet is swallowed,
the magnets can attract each other and may cause
infection or blockage, which can
intestinal perforation,
be fatal.
Inhalation of those magnets has also caused
serious injuries, and aspiration into the lungs requires
immediate surgery.

Besides one fatal accident reported in the United States,
several occurrences of children swallowing at least two
magnets or a magnet and a metal object, and requiring
major surgery, have been reported worldwide since 2006.
These incidents have involved children aged between 10
months and 12 years.

toys were

In 2006 and 2007, several toy producers launched major
recalls of magnetic toys. In particular, over 18 million
magnetic
recalled worldwide during the
summer of 2007, and a significant proportion of these
toys were on the European market. As a result of the
accidents and the recent recalls, many producers have
realised the risk and modified the design of the toys
concerned, encapsulating or collaring the magnets in
the parts containing them.

Some countries have already adopted measures to deal
with the risk. In particular, the United States Consumer
Product Safety Commission (CPSC) released, on 19 April
2007, a warning to parents concerning the health and
safety risks posed by magnetic toys. The CPSC has also
participated in the
revision of ASTM F963-2007
‘Standard Consumer Safety Specification on Toy Safety’
created under the auspices of the standardisation body,
ASTM International, to deal with magnets in toys.
In
Europe, both France and Germany have informed the
Commission of national measures.

and

particularly

In its resolution of 26 September 2007 on the safety of
products
European
Parliament urged the Commission to use its powers to
take restrictive measures,
if consumer
goods placed on the Community market are found to
be unsafe.

including bans,

toys (3),

the

Consultation of the Member States in the Committee set
up by Article 15 of Directive 2001/95/EC has established
that Member States differ significantly on the approach
to deal with the risk posed by magnetic toys.

(1) Standardisation mandate to CEN of 25 May 2007 to draw up

standard for magnetic toy (M/410).

(2) OJ L 204, 21.7.1998, p. 37. Directive as last amended by Council

Directive 2006/96/EC (OJ L 363, 20.12.2006, p. 81).

(3) Texts Adopted, P6_TA(2007)0412.

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(14)

(15)

(16)

(17)

(18)

introduction of

In the absence of Community rules, some Member States
have adopted or are about to adopt divergent national
measures to manage the risk posed by magnetic toys.
The
such national measures will
inevitably result in an uneven level of protection and
in intra-Community barriers to trade in magnetic toys.
Several Member States have called for a Community
measure.

There is Community legislation on small parts in toys
meant for small children (1), but that legislation does not
deal specifically and sufficiently with risks from magnetic
toys to children who are over three years of age. In view
of the nature of the hazard, the risk posed by magnetic
toys
cannot be dealt with effectively under other
procedures laid down in specific rules of Community
compatible with the degree of
law in a manner
urgency of the case.
It is therefore necessary to have
recourse to a temporary decision under Article 13 of
Directive 2001/95/EC until
European
the
comprehensive
standard EN 71-1:2005 provides
targeted
solution to the problem identified. The
measure introduced by this Decision offers only a
partial, temporary, short-term solution. The Commission
has already clearly recognised the need for constructional
requirements to deal adequately with the risks posed by
magnetic toys when issuing the standardisation mandate
to CEN to revise EN 71-1:2005.

revised
a

In view of the serious risk from magnetic toys, and in
order to ensure a consistent and high level of consumer
health and safety protection throughout the EU as well as
to avoid barriers to trade, it is urgent that a temporary
decision pursuant to Article 13 of Directive 2001/95/EC
be adopted. Such a decision should rapidly make the
available on the market of
placing
and making
magnetic toys subject
they are
to the condition that
marked with an adequate warning of the risks linked
to the presence of magnets or magnetic components of
ingestible shape and size that are accessible to children.
Such a decision should contribute to the prevention of
further deaths and injuries.

In the light of the accident and hazard data and the
pending permanent measure
the
revision of standard EN 71-1:2005, the scope of this
Decision should cover magnetic toys.

form of

in the

regardless of the conformity with the requirements in
this Decision and other criteria designed to ensure the
general safety requirement. Member States must carry out
market surveillance and enforcement activities to prevent
risks posed by unsafe products to the health and safety of
consumers.

(19) On the basis of the progress made with the revision of
the European standard EN 71-1:2005 and with regard to
the completeness of the revised standard and its adequacy
to address fully the risks posed by magnetic toys, the
Commission will decide whether to extend the validity
of this Decision for additional periods and whether the
Decision should
the
amended.
Commission will decide whether to introduce construc-
tional requirements to supplement the warning required
in this Decision.

In particular,

be

In this case,

(20) A short transition period is necessary in the interests of
the
both the Member States who must ensure that
Decision will be applied efficiently and also of
the
producers and distributors of magnetic toys who are
subject to the obligation to place or make available on
the market only magnetic toys that bear the appropriate
warning.
the shortest possible transition
period should be laid down, consistent with the need
to prevent
further accidents and to ensure propor-
tionality, taking into account that the measure consists
of a marking only and does not require changes to the
product design itself. Therefore, the requirement for a
warning to be affixed to magnetic toys should apply
shortly after
this Decision by the
Commission.

the adoption of

(21)

in this Decision are in
The measures provided for
accordance with the opinion of the Committee estab-
lished by Article 15 of Directive 2001/95/EC,

HAS ADOPTED THIS DECISION:

This Decision is without prejudice to Articles 3(4) and 6
to 8 of Directive 2001/95/EC, and thus does not bar
Member States from taking appropriate measures where
there is evidence that a magnetic toy is dangerous,

Article 1

Definitions

For the purposes of this Decision the following definitions shall
apply:

(1) In accordance with Directive 88/378/EEC, toys, and their component
parts, and any detachable parts of toys which are clearly intended for
use by children under 36 months must be of such dimensions as to
prevent their being swallowed and/or inhaled. This means that toys
intended for children under 36 months must not contain any
element liable to be swallowed or inhaled, whether magnets or not.

— ‘magnetic toy’ means a toy that contains or consists of one
or more magnets or one or more magnetic components that
are of
ingestible shape and size and are accessible to
children,

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— ‘toy’ means any product or material designed or clearly
intended for use in play by children of less than 14 years
of age,

The warning shall appear in the official languages of the
3.
Member State in which the product is placed or made available
on the market.

— ‘of ingestible shape and size’ means fitting entirely into the
small-parts cylinder defined in the standard EN 71-1:2005,

— ‘accessible to children’ means loose or able of becoming
detached from the toy under normal or reasonably fore-
seeable conditions of use by children, even if originally
contained, encapsulated, recessed or collared in the toy,

— ‘making available on the market’ means any supply of a
magnetic toy for distribution, consumption or use on the
Community market in the course of a commercial activity,
whether in return for payment or free of charge,

Article 3

Implementation

1.
As of 21 July 2008, Member States shall ensure that
magnetic toys which do not display the required warning are
prohibited from being placed or made available on the market.

2.
As of 21 July 2008, Member States shall ensure that
magnetic toys which do not display the required warning and
are placed or made available on the market are withdrawn from
the market, and that consumers are adequately informed of the
risk.

— ‘placing on the market’ means the first making available of a

magnetic toy on the Community market,

3. Member States shall
inform the Commission without
delay of the measures taken under this Article in accordance
with Article 12 of Directive 2001/95/EC.

— ‘withdrawal’ means any measure aimed at preventing the

distribution, display and offer.

Article 4

Information

Article 2

Warning

Member States shall take the necessary measures to comply
with this Decision, publish those measures and forthwith
inform the Commission thereof.

1. Member States shall ensure that magnetic toys which are
placed or made available on the Community market display a
warning:

‘Warning! This toy contains
(a) with the following wording:
magnets or magnetic
sticking
together or becoming attached to a metallic object inside
the human body can cause serious or fatal
injury. Seek
immediate medical help if magnets are swallowed or
inhaled.’;

components. Magnets

Article 5

Period of application

This Decision shall be applicable until 21 April 2009.

Article 6

Addressees

This Decision is addressed to the Member States.

(b) or with an equivalent easily understandable wording that

clearly conveys the same content.

Done at Brussels, 21 April 2008.

2.
The warning shall appear in a clearly visible and legible
manner, conspicuously displayed on the packaging or otherwise
attached to the magnetic toy in such a way as to be visible to
the consumer at the point of purchase.

For the Commission

Meglena KUNEVA
Member of the Commission