Toy wholesaler fined for train with choking hazard to young children

A train supplied in violation of the Product Safety Standard for children’s toys was discovered under the Commerce Commission’s retail inspections program, resulting in a $55,250 fine for the train New Zealand wholesale distribution company, 1st Mart Limited.

During tests carried out by the Commission, small parts of the toy came off, posing a risk of choking or suffocation. The toy’s batteries have also become accessible, posing an additional risk of serious injury or death if swallowed.

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

Fair Trading Managing Director Vanessa Horne said: “Our routine inspection program and the prosecution of these cases continue to be a priority for the Commission as they relate to the safety of young children.

“It is really important that toy suppliers in the New Zealand market understand and comply with their legal obligations so that New Zealand children are not put at risk of serious harm, as we have seen in this case.”

Retailers must ensure that the toys they sell meet the requirements of the standard before selling them. The Commission recommends requiring suppliers to provide certification that confirms this, but also stresses that retailers must ultimately ensure that the toys they sell comply with the law.

Although labeled for children over three years of age, it was clear that the toy was designed for use by children 36 months and under due to its size and weight, bright and vibrant colors and its similarity to the mark “Thomas the Tank Engine”. which is marketed to children under three years of age. The Commission understands that the toy was not an official Thomas the Tank Engine licensed product.

This is the second time 1st Mart has been fined for breaching the Product Safety Standard for children’s toys. In 2019, he was fined $45,000 for supplying a dangerous pig toy that looked like the “Peppa Pig” toy brand. 1st Mart’s earlier conviction led the court to increase the starting point for the fine in this case by 10%.

During sentencing in the Manukau District Court on July 5, 2022, Judge Wharepouri said there was no doubt that the defendant was aware of the standards to be met, the importance of meeting those standards and the importance of not providing vulnerable children in the market with toys that did not meet any of the applicable safety standards.

Judge Wharepouri also said that in his view the seriousness of the present offense can only be assessed at a reasonably high level, such as gross negligence bordering on recklessness.

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

As well as reminding businesses to check product safety standards, the Commission encourages consumers to check that toys are suitable for children aged three and under and to be aware of the risks toys can pose if small parts in are easily removed or broken when stationary.

In response to the Commission’s investigation, 1st Mart issued a recall notice through Trading Standards and contacted all retailers advising them to stop selling the toy and post the recall notice in the store. Retail stores had sold out all units supplied, and no units of the toy were successfully recalled.

Product Safety Standards
Regulations establish safety standards that suppliers of goods must meet. The regulations define the types of goods covered, the standards or parts of standards applicable to New Zealand and any variation of these standards. Failure to meet product safety standards set by regulations violates the Fair Trading Act.

The Mandatory Toy Standard 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 have parts so small, that they could be swallowed or ingested and cause choking.
Testing of these products includes stress, torque (torsion) and drop tests, and they are designed to simulate normal use and reasonably foreseeable abuse of toys by young children.

Toy Safety Videos
The Commission has published a series of videos designed to help businesses, all of which can be found on the Children’s Toys page of the Commission’s website, along with additional guidance for businesses:

Relevant cases

Since 2017, we have visited over 430 retailers in eleven regions of New Zealand, sued 29 businesses and issued warnings to 61 businesses over the supply of 151 different dangerous products. Of the 151 dangerous products, more than 70 are toys, and the majority of these enforcement results are the result of Commission inspection work.

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