*Legal professionals say though there is no legislation providing for or dealing specifically with product recall in Nigeria, though the recent increase in product recalls in the United States and Europe has engendered increase in product recalls generally in the country

Isola Moses | ConsumerConnect

Product recall is the process by which a manufacturer retrieves defective and/or unsafe (or potentially unsafe) goods from distribution, sale and use by consumers while paying compensation to consumers who have already purchased or used the products.

It could be voluntary, i.e., initiated by the manufacturer or distributor; or mandatory, i.e. required by the relevant regulatory agency.

Legal experts say defective products do not only pose serious risks to consumers, they may also inflict substantial financial damage on the company responsible.

As such, product-defect risk is one of the most significant risks facing businesses today.

According to Udo Udoma & Belo-Osagie in a piece tilted, ‘When Products Go Wrong: A Synopsis of Product Recall Requirements in Nigeria’, published in March 2019 edition of ‘Compliance Newsletter’, while the incidence of product recall is not particularly high among local manufacturers in Nigeria, the recent increase in product recalls in the United States and in Europe has engendered increase in product recalls generally in the West African country.

For instance, following the recall of the baby formula, Lactalis as a result of salmonella outbreak in France, the National Agency for Food and Drugs Administration and Control (NAFDAC) in February 2018 ordered the recall of five batches of Lactel Instant Full Cream powder produced by the same manufacturer which had been imported into Nigeria.

The authors stated there is no legislation in Nigeria providing for or dealing specifically with product recall.

They, however, acknowledged that a number of regulatory agencies set up by law whose functions include the protection of consumer rights in relation to the sector within which the agency operates.

In order to effectively perform this function, such agencies have established procedures for the recall of defective products from the Nigerian market, they disclosed.

The SON was established as the apex standardisation body in Nigeria by the Standards Organisation of Nigeria Act 2015 (“SON Act”).

The SON undertakes the registration of all manufactured products distributed, marketed and consumed throughout Nigeria.

Likewise, they explained that NAFDAC was established by the National Agency for Food and Drugs Administration and Control Act (Chapter N1) LFN 2004 (the “NAFDAC Act”) for the regulation and control of the import, export, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled.

A manufacturer or distributor of products in the Nigerian market has the obligation to notify the SON in writing immediately it becomes aware of a defective product in the market, they noted.

The notification to the SON should be addressed to the state coordinator of the SON (in the state where the manufacturer or distributor is located) and must include the details of the defective product(s), as well as the contact details of the manufacturer or the distributor submitting the notification.

Such a manufacturer or distributor, the experts opined, is also required to publish a public notice about the defective products in a Nigerian newspaper with national circulation.

In relation to product recalls, the SON Act provides that the supplier of a defective product may be required by the Honourable Minister of Industry, Trade and Investment (upon the recommendation of the SON) to, among other things, recall the product or notify the public of the nature of the defect in the commodity, the circumstances in which the use of the commodity is dangerous, as well as procedures for disposal of the commodity.

The product supplier may also be required to undertake to repair/ replace the defective product or refund the price of the product to the purchaser.

(iii) The National Agency for Food and Drugs Administration and Control (“NAFDAC”)

(ii) The Standards Organisation of Nigeria (“SON”)

Manufacturers and distributors of products in the Nigerian market need to be aware of their obligations (and associated penalties) under the product recall regime outlined above.

Manufacturers/ distributors should undertake consistent reviews of their products and should also be sensitive to customer complaints about their products, which may trigger a product recall.

It must be noted that relevant regulatory agencies may also compel manufacturers or distributors to recall defective products in respect of which the agencies have received complaints from consumers.

As regards water and chemicals in Nigeria, although the NAFDAC Act does not specifically make provision for product recalls, the NAFDAC, in accordance with its powers under the NAFDAC Act, has issued a number of guidelines and regulations which make reference to product recalls.

Such guidelines/ regulations include the NAFDAC Good Manufacturing Practice Guidelines for Pharmaceutical Products (the “GMP Pharmaceutical Products Guidelines”), and the NAFDAC Guidelines for Inspection & Requirements for Pre-Packaged Food Manufacturing/Packaging Facilities in Nigeria (the “Food Manufacturing Guidelines”).

All manufacturers are required to have a system in place to recall products known or suspected to be defective from the market, promptly and effectively.

Besides, they suggested that a person should be designated as responsible for the execution and coordination of recalls and should be supported by sufficient staff to handle all aspects of the recalls with the appropriate degree of urgency.

The NAFDAC must also be informed promptly of any contemplated product recalls, said the experts.

They added that in the event that a manufacturer/distributor is in doubt of the actions to be taken upon receipt of a consumer complaint or a notification from a regulatory agency, it would be useful to contact the relevant regulatory agency or legal practitioners with significant experience in regulatory compliance, in order to avoid the penalties associated with non-compliance with the relevant regulations.