PRODUCT LIABILITY

CD: How are regulators responding to the challenges of globalised product markets? To what extent are jurisdictions converging on product liability standards – particularly in ways that affect multinational compliance strategies?

Williams: Australia’s product liability and safety standards are already somewhat harmonised with global standards. The causes of actions available under the Australian Consumer Law (ACL) for products with safety defects were modelled on the 1992 European Product Liability Directive (PLD), although there are no plans to update this cause of action to reflect the new directive. Furthermore, where the Australian government decides to declare a mandatory product safety standard, those standards will typically permit compliance to be established by reference to both Australian and international standards, which may include European, US Consumer Product Safety Commission and American Society for Testing and Materials standards, for example. However, where the Australian regulator – the Australian Competition and Consumer Commission (ACCC) – sees a need to protect consumers, it will not hesitate to move ahead of international consensus. For example, Australia’s mandatory button battery safety standards became mandatory on 22 June 2022, well ahead of many other jurisdictions. Businesses selling products into Australia should check whether their products are subject to mandatory standards in Australia.

Shaw: While there may be some points of convergence among product liability standards across jurisdictions, it would be an overstatement to characterise this as an organised or uniform effort. If anything, there is some anticipation that deregulation initiatives pursued by the current US administration may create greater divergences in certain product safety standards. The European Union (EU) is, in most cases, the body that is making the most decisive legislative action. Accordingly, many multinationals pursue compliance with EU standards as the most onerous and complex obligations. That said, a blanket approach on this principle will ignore nuanced divergences across other jurisdictions. The practical reality is that product liability standards remain a patchwork, which limits a company’s ability to institute a streamlined compliance programme. Canadian standards have not converged enough with those of other countries to eliminate the need for local advice.

Jan-Mar 2026 issue

Ashurst

Clayton Utz

DLA Piper

McCarthy Tétrault LLP

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