EXPLANATORY STATEMENT
Competition and Consumer Act 2010
Consumer Protection Notice No. 2 of 2012
COMPULSORY RECALL OF CONSUMER GOODS: TEETH WHITENING PRODUCTS SUPPLIED BY PRO TEETH WHITENING (AUST) PTY LIMITED
Issued by the authority of the Parliamentary Secretary to the Treasurer responsible for Competition Policy and Consumer Affairs
Subsection 122 (1) of Schedule 2 of the Competition and Consumer Act 2010 provides that the Minister responsible for Competition Policy and Consumer Affairs may issue a compulsory recall notice for consumer goods of a particular kind when it appears to him that:
- the goods will or may cause injury to any person, and
- the supplier has not taken satisfactory action to prevent the goods causing injury to any person.
Background
Teeth whitening has become a common cosmetic procedure and numerous products are available directly to the public for do-it-yourself (DIY) teeth whitening. The concentrations of bleaching ingredients in DIY teeth whitening products available in Australia have increased over recent years. A common active bleaching ingredient in these products is hydrogen peroxide.
Typical injury complaints from teeth whitening kits include tooth sensitivity and gum and throat irritation. More serious injuries reported include:
- painful chemical burns to the gums, mouth tissues and the oesophagus
- blistering or ulceration of the mouth and throat
- marbled or unnatural coloured teeth
- sensitive and painful teeth, tissue “tingling”, and headaches
- potential increased risk of mouth and tongue cancer for tobacco users.
The Australian Dental Association has also reported that dentists are seeing an increasing number of patients presenting with mouth injuries attributed to at-home teeth bleaching. Some cases have also been treated in emergency departments of hospitals. Poisons Information Centres in Queensland, New South Wales and Victoria have received a combined total of at least 58 reports of injuries involving teeth whiteners since 2004.
The Australian Competition and Consumer Commission (ACCC) is also aware of regulatory action being taken in the European Union, as well as overseas injury reports associated with the use of these products.
In Australia, the Poisons Standard 2011 classifies preparations containing more than 6% hydrogen peroxide as Schedule 6 “POISONS”. This classification limits DIY consumer products intended to be taken into the mouth to this concentration.
The 6% hydrogen peroxide safety limit for DIY teeth whiteners is also supported by expert clinical advice published by the Dental Board of Australia, the Australian Dental Association, and a scientific risk assessment published by the European Union Scientific Committee on Consumer Products.
In early December 2011, the ACCC contacted the known suppliers of DIY teeth whiteners and advised them of safety concerns in relation to DIY teeth whitening products that contained unsafe concentrations of bleaching agents.
Most suppliers of DIY teeth whitening products that contained unsafe concentrations of bleaching agents immediately ceased supply of the products and voluntarily recalled them.
Conditions for Issuing the Compulsory Recall Notice Have Been Met
The Parliamentary Secretary to the Treasurer has determined that
“bright white express - Advanced Teeth Whitening Kit” and “PROTEETHWHITENING - Professional Teeth Whitening Pen”
(the Products)
supplied by Pro Teeth Whitening (Aust) Pty Limited, are consumer goods supplied in trade and commerce and it appears to him that
- the goods will or may cause injury to a person; and
- the supplier has not taken satisfactory action to prevent the goods causing injury to any person.
Consultation
The ACCC first wrote to Pro Teeth Whitening (Aust) Pty Limited on 12 December 2011 informing them of the safety concerns about DIY teeth whitening products containing concentrations of hydrogen peroxide greater than 6%.
Correspondence from Pro Teeth Whitening (Aust) Pty Limited subsequently confirmed that the Products were supplied by the company and contained concentrations of hydrogen peroxide greater than 6% and in the range from 9% to 16%.
The ACCC contacted Pro Teeth Whitening (Aust) Pty Limited on several occasions during December 2011 and January 2012 and explained the basis for the safety concerns and the obligations for suppliers of consumer goods under the Competition and Consumer Act 2010.
The ACCC also informed Pro Teeth Whitening (Aust) Pty Limited that the Parliamentary Secretary to the Treasurer could exercise his powers under the Competition and Consumer Act 2010 to protect consumers and that these powers included ordering a compulsory product safety recall.
Pro Teeth Whitening (Aust) Pty Limited did not cease to supply the Products or recall the Products on a voluntary basis, despite the ACCC approaching the company on a number of separate occasions.
Pursuant to subsection 132J (1)(b) of the Competition and Consumer Act 2010 the Parliamentary Secretary to the Treasurer certified, by Consumer Protection Notice 1 of 2012, that a recall notice for the Products should be issued without delay, and without a conference process, as it appeared to him that such goods created an imminent risk of serious injury. A notice under section 132J of the Competition and Consumer Act 2010 is not a legislative instrument.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Overview
The Legislative Instrument orders a compulsory recall of certain ‘do-it-yourself’ teeth whitening products that contain concentrations of hydrogen peroxide greater than 6% w/w. High concentrations of hydrogen peroxide in a DIY consumer good intended to be taken into the mouth may cause serious injury to consumers.
Human Rights Implications
The legislative Instrument engages the right to health and the rights of the child.
The International Covenant on Economic, Social and Cultural Rights recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The Convention on the Rights of the Child recognises the right of the child to the enjoyment of the highest attainable standard of health.
The Legislative Instrument promotes these rights by requiring a supplier to recall particular consumer goods which will or may cause harm or injury to people, including children. The effect of recalling a good is to remove it from sale and to notify consumers who have purchased the good that it should be returned to the supplier.
Conclusion
The Legislative Instrument does not limit human rights and is compatible with human rights because it advances the protection of human rights by requiring a supplier to recall particular consumer goods that will or may cause harm or injury to people, including children.
Details of the Legislative Instrument as Set Out in the Schedule to Consumer Protection Notice No. 2 of 2012
Division 1: Provides details of the supplier of the goods subject to the compulsory recall notice, namely:
Pro Teeth Whitening (Aust) Pty Limited
ACN 135 042 107
Unit 3, 16 Mary Street, Birkdale Qld 4159
Division 2: Provides particulars of the goods subject to the compulsory recall notice, namely:
“bright white express - Advanced Teeth Whitening Kit” and
“PROTEETH WHITENING - Professional Teeth Whitening Pen”
Division 3: Directs that the supplier must take action within three (3) days of the recall notice being registered on the Federal Register of Legislative Instruments.
Division 4: Directs the manner in which the recall is to be conducted by the supplier.