Product Liability & Safety 2020 Comparisons

Last Updated June 30, 2020

Law and Practice

Authors



Baker McKenzie (Bangkok) is the leading international law firm in Thailand, whose Bangkok office works on some of the most innovative transactions and largest projects in the country. As the largest law firm in Thailand, Baker McKenzie is the go-to firm for leading Thai, Fortune 500 and Asia Pacific 100 companies doing business in the country. The team of more than 250 lawyers, and 58 partners, works closely with colleagues across offices in Asia Pacific and the rest of the world. The healthcare and life sciences team has deep experience in local regulatory processes and laws affecting pharmaceuticals, medical device, and biotechnology businesses and the firm's dispute resolution lawyers represent clients in domestic and international litigation and arbitration.

General

The Consumer Protection Act, B.E. 2522 (1979) (the Consumer Protection Act) is the main law in Thailand which seeks to provide protection to consumers from unfair practices, including on matters relating to advertising, labelling and contracts. Additionally, one of the specific matters which is also governed by the Consumer Protection Act is product safety.

Under the Consumer Protection Act, products which are sold, offered or marketed by business operators must be safe. Various matters may be considered in relation to how to make the product safe, including:

  • the type of product;
  • the product's design;
  • the product's label; and
  • the generally accepted safety standards for such product.

The business operator must also not manufacture, import for sale or advertise any product which is unsafe.

Sector-Specific

Other specific criteria may also be issued for certain products in order for the business operator to provide additional safeguards to prevent possible harm for consumers (eg, products which contain asbestos or melamine).

In addition to the Consumer Protection Act, there are also other laws which may govern safety issues around other specific types of products, including, but not limited to:

  • The Drug Act, B.E. 2510 (1967), which governs the safety of drugs;
  • The Food Act, B.E. 2522 (1979), which governs the safety of foods;
  • The Medical Device Act, B.E. 2551 (2008), which governs the safety of medical devices;
  • The Cosmetic Act, B.E. 2558 (2015), which governs the safety of cosmetics;
  • The Hazardous Substance Act, B.E. 2535 (1992), which provides the requirements for controlling the use of substances which are deemed to be hazardous; and
  • The Industrial Product Standard Act, B.E. 2511 (1968), which prescribes safety standard for certain industrial products.

The Consumer Protection Act established the Consumer Protection Committee to oversee and regulate adherence to the Consumer Protection Act.

Additionally, the Consumer Protection Act established other subcommittees to oversee and regulate the specific matters which are controlled under the Consumer Protection Act, including the Products and Services Safety Committee.

The Products and Services Safety Committee has the authority to issue specific regulations to regulate product safety matters. For example, under the Consumer Protection Act, the Products and Services Safety Committee is empowered to set out the criteria and methods for notifying the Office of the Consumer Protection Board (OCPB) when a business operator finds that its product is a dangerous one.

Although the Consumer Protection Act empowers the aforementioned committees, the main regulator, which actually handles product safety issues on a day-to-day basis, is the OCPB. The OCPB will be the primary regulator which handles product complaints and investigations.

Furthermore, as noted in 1.1 Product Safety Legal Framework, certain products are controlled under specific laws and such laws may have a specific regulator. For example, the Food and Drug Administration (FDA) oversees and regulates safety issues which specifically relate to food, drugs, medical devices and cosmetic products.

Under the Consumer Protection Act, in the event that a business operator finds out, or is informed that, a product which it manufactures, imports or sells is a dangerous one, that business operator is required to carry out corrective measures to prevent or eliminate the danger. These include rectifying the safety issue, changing the product or undertaking a product recall.

The business operator must also inform the OCPB about the corrective measures that it is taking in writing without delay (but no more than five days from the date on which it starts to undertake the corrective measures).

In the event that there is reason to suspect that a product may be dangerous, the Products and Services Safety Committee also has the authority to issue orders to the business operator. These include orders for the business operator to undertake tests to prove the product's safety or orders for the business operator to stop manufacturing, importing or selling the product.

Where the Products and Services Safety Committee issues an order for the business operator to stop selling the product, the business operator is required to, amongst other matters, recall the product and notify/advertise the measures that it is taking to consumers. The business operator is also required to submit its corrective plans, including the plans related to the product recall and the remediation measures for consumers, to the Products and Services Safety Committee. Such plans are subject to the Products and Services Safety Committee's review and approval, and must also be notified/advertised to consumers.

The methods for notifying/advertising to consumers regarding the aforementioned issues may be subject to the specific guidelines of the OCPB.

In addition to the requirements under the Consumer Protection Act, other laws may contain obligations regarding the corrective measures which must be undertaken by business operators (eg, the laws which are under the control of the FDA)

In addition to the issues highlighted in 1.3 Obligations to Commence Corrective Action, the business operator is required to notify the OCPB without delay where the product is found to be dangerous, or where the product causes death or injury (including injury to the mind and the properties of others).

The specific criteria and methods for making the notification will be as prescribed by the Products and Services Safety Committee.

In addition to the requirements under the Consumer Protection Act, other laws may contain notification obligations that must be undertaken by business operators (eg the laws which are under the control of the FDA)

The penalties for breaching the product safety requirements under the Consumer Protection Act will depend on the specific offence that may have been committed. Such penalties include criminal fines and/or imprisonment terms.

Where the offence is committed by a juristic entity (legal person), the directors, managers or other persons responsible for the operation of that juristic entity may also be held liable if they were involved in the commission of the offence through their actions or inactions.

As the product safety requirements under the Consumer Protection Act were only recently introduced in 2019, we are not yet aware of any specific examples of companies which have been prosecuted or fined for breaching these obligations.

There are two specific laws which relate to product liability, namely: the Liability for Injuries from Unsafe Products Act, B.E. 2551 (2008) (the Product Liability Act) and the Consumer Case Procedure Act, B.E. 2551 (2008) (the Consumer Case Procedure Act).

The main cause of action for a product liability claim is that the injured party suffers damages from an unsafe product, where that product has been sold to the consumer, irrespective of whether such damages are a result of the wilful or negligent act of the relevant business operators. In such cases, the relevant business operators will be held jointly liable.

The term "business operator" means the manufacturer (or the hirer of the manufacturer) or importer of the products (or the seller of the products where the manufacturer or importer cannot be identified). Persons who use a name, tradename, trademark or other marks which lead to the understanding that they are the manufacturer (or the hirer of the manufacturer) or importer of the products may also be held liable.

The term "unsafe" means a product which causes (or may cause) damages as a result of a manufacturing or design defect; or because the appropriate instructions for using or storing the products, warnings or other information regarding the product were not provided (or where it was provided but the information was inaccurate or insufficient). Consideration must also be given to the specific conditions of the products, as well as the way that the products may be used or stored under normal and expected conditions.

The person (or the legal representative of such person) who suffers damages from an unsafe product can bring a claim.

The OCPB (as well as associations or foundations that have been certified by the OCPB) also has the authority to bring a claim on behalf of the consumer.

The time limit to exercise a claim for a product liability case is three years from the date the injured person becomes aware of the damage and the business operator that is responsible, or ten years from the date on which the product was sold.

In the event of damages that are caused by substances that build up in the body of the injured person, or where it may take time for the symptoms to show, the time limit to exercise a claim is three years from the date of becoming aware of the damage and the business operator that is responsible, but not more than ten years from the date of first becoming aware of the damage.

The Product Liability Act and the Consumer Case Procedure Act do not provide any specific jurisdictional requirements.

The general provisions on the jurisdiction of Thai courts will therefore be applied. Generally, if the injured person or business operator resides in Thailand, if the damage arises in Thailand, or if the business operator has property that may be enforced by a judgment in Thailand, then the Thai courts may have jurisdiction.

We are not aware of any specific mandatory steps that must be taken before proceedings can be commenced formally for product liability cases.

Under the Consumer Case Procedure Act, specific rules regarding the preservation of evidence may be applied.

If a person or a party to a case fears that evidence on which they may rely might be lost or prove difficult to produce at a later time, that person or party may file a claim before the court requesting that it hear such evidence immediately.

In the case of an emergency, the claimant may also ask the court to order the seizure of evidence, under conditions set by the court.

Any person who fails to comply with an order of the court may also be held liable for a criminal offence (which may include criminal fines and/or imprisonment terms).

We are not aware of any specific rules relating to the disclosure of documents or other evidence in product liability cases.

However, under the Consumer Case Procedure Act, the courts play a central role in relation to the hearing of evidence. In this respect, the court will be responsible for asking the witnesses questions while parties to the case (or their lawyers) can only do so with the court's permission. To this end, the court is empowered to ask the witnesses about any facts which it considers to be connected with the case, even if these issues are not raised by one of the parties.

In the interest of justice, the courts themselves may also order other evidence to be produced.

We are not aware of any specific rules relating to expert evidence in product liability cases.

However, under the Consumer Case Procedure Act, the courts themselves may ask expert witnesses to provide testimony in a case. In such cases, the courts must provide the parties to the case with the appropriate opportunity to call their own expert witnesses to provide counter-arguments or additional testimony.

Furthermore, the general provisions relating to expert evidence (which allow both parties to request expert evidence) also apply to product liability cases.

In order to make a claim in relation to an unsafe product, the injured party needs to prove that they received the damage from the business operators' product, and that the product was used or stored in its normal state. However, the injured party does not have to prove which business operator actually caused the damage.

The burden of proof is on the business operator to prove that it should not be liable for the damage that was caused by the product. To do so, the business operator must prove that:

  • the product is not an unsafe product;
  • the injured party knew that the product was an unsafe product; or
  • the damage was caused because the injured party did not use or store the products in accordance with the instructions for using or storing the products, warnings or other information regarding the products, which had been accurately and sufficiently provided by the business operator.

Additionally, under the Consumer Case Procedure Act, where there are any arguments regarding the facts related to the manufacture, design or composition of the product, if the court is of the view that such facts are known specifically by the party which is the business operator then the burden of proof in relation to such matters will fall on the business operator.

Product liability cases will be filed with the civil courts and these cases will be decided by judges. We are not aware of any specific thresholds of awards in these courts. However, it should be noted that the Thai courts will generally only provide awards for actual damages which have been proven to the satisfaction of the court.

Notwithstanding the above, under the Consumer Case Procedure Act, the courts are empowered to order punitive damages (eg, where the business operator intentionally took advantage of the consumer in an unfair manner) Generally, where the courts order punitive damages, those punitive damages cannot exceed twice the value of the actual damages which have been set by the courts.

The consumer case procedure described in the Consumer Case Procedure Act will apply to product liability cases.

The appeal mechanisms for a product liability case are stipulated in the Consumer Case Procedure Act. A product liability case can be appealed within one month from the day the court read the judgment or order.

However, a product liability case with the value of not more than BHT50,000 (approximately USD1,600) may not be appealed on issues related to the facts of the case.

As noted in 2.9 Burden of Proof in Product Liability Cases, the main defences which are available to business operators in product liability cases are that:

  • the product is not an unsafe product;
  • the injured party knew that the product was an unsafe product; or
  • the damage was caused because the injured party did not use or store the products in accordance with the instructions for using or storing the products, warnings or other information regarding the products, which had been accurately and sufficiently provided by the business operator.

Adherence to regulatory requirements may also be one of the relevant considerations in product liability cases.

More specifically, it is possible that this issue may be a factor in determining whether or not the product was in fact unsafe (eg was the product manufactured in accordance with the required regulatory standards or was the product labelled correctly in accordance with the requirements which are applicable to the specific product)

This is not, however, to say that adherence to regulatory requirements in itself will automatically mean that the product is not an unsafe one. Again, the business operator would still be required to provide the defences as mentioned in 2.9 Burden of Proof in Product Liability Cases and 2.12 Defences to Product Liability Claims.

Under the Consumer Case Procedure Act, the court fees will generally be exempted for the consumer (or the legal representative of the consumer).

However, the court may also order the consumer to pay all or any part of the exempted fees, for the reasons stipulated in the Consumer Case Procedure Act. These include the court finding that the consumer filed the claim without any appropriate reason or seeks inappropriate amounts of damages. If the consumer fails to pay the fees as ordered by the court, the court may order the case to be dismissed.

The court may also, at its discretion, order the business operator to pay the court fee for the injured person.

Generally, the successful party may also seek to recover costs associated with the litigation by including those costs in its request for awards. However, any such award would be subject to the discretion of the court.

We are not aware of there being any litigation funding provided by third parties in Thailand. Contingency fee and "no win, no fee" arrangements are not permissible.

As noted in 2.2 Standing to Bring Product Liability Claims, the Consumer Protection Committee (or the OCPB), as well as associations or foundations which have been certified by the OCPB, also have the authority to bring a claim on behalf of the consumer.

Class actions are also available in product liability cases and have started to be used in practice. To file a class action suit, the plaintiffs must have the same legal claims arising from the same facts and legal grounds, and must have the specific condition of being of the same group.

In 2014, a waiter in a restaurant was about to serve bottled soft drinks to customers, as usual. He normally took the bottles out of the refrigerator, without shaking the bottles (or hitting them), and would then place the bottles on a counter. Before serving these specific bottles to the customers, he grabbed a bottle in each hand. However, the bottle in his right hand unexpectedly exploded. Pieces of glass from the explosion blinded him.

The case was brought to the court in the following year. The soft drink manufacturer presented its manufacturing process to the court. To this end, it claimed that the process was safe and was certified by the government (and in accordance with international standards). However, the court was of the view that there were defects in the manufacturing process – ie, the manufacturer's quality checks were insufficient (even though the manufacturer complied with several standards). The product was therefore deemed to be an unsafe product due to this defect.

The court ordered the soft drink manufacturer to pay compensation of THB1.41 million (approximately USD45,600), with interest at the rate of 7.5 percent per year, plus THB900,000 (approximately USD29,100) as compensation for the claimant's work disability.

This case provides confirmation that compliance with governmental standards (or any other international standards) is not in itself sufficient to claim that a manufacturing process is without defect, and therefore that the product of that manufacturing process is safe.

We have started to see an increase in class actions that relate to product liability claims (eg, the use of class action for products in the automotive industry) However, such cases are still limited in nature. The foregoing increase may have more to do with a rise in consumer awareness (as opposed to any significant changes to product liability and safety laws). For further discussion please refer to the Thailand Trends and Development Article in this Global Practice Guide.

Other recent notable trends, which specifically relate to the development of product liability and safety laws, relate to prohibitions or restrictions on the use of specific products (eg, chemical substances) because of safety concerns.

We are not aware of any specific areas of focus for future policy development in respect of either product liability or product safety, including proposed amendments to legislation, guidance and/or technical documents.

Generally, product liability and product safety laws have not been affected by the COVID-19 pandemic (or other significant business disruptions).

However, the government has introduced various policies to assist manufacturers and importers of certain products (eg, medical devices or equipment that may be used for personal protection) The policies include fast-tracking or expediting the registration process for such products.

The introduction of these policies has seen an increase in the number of business operators wishing to enter the market to supply such products (specifically given the current demand for protective equipment). Some business operators may not have any previous experience regarding the specific product safety issues or regulatory requirements which may apply to them.

Although the government may have such policies in place, we are not aware of there being any specific exemptions or waivers which seek to reduce or limit the safety requirements for such products. The fact that it may be easier to manufacture or import such products does not mean that the regulators will overlook product safety concerns. In fact we have recently seen a number of reported cases where the regulators have specifically targeted products that are subject to these policies and have found that certain products may not conform to the required safety standards.

Baker McKenzie (Bangkok)

25th Floor, Abdulrahim Place
990 Rama IV Road
Bangkok 10500
Thailand

+66 2666 2824

+66 2666 2924

peerapan.tungsuwan@bakermckenzie.com www.bakermckenzie.com/en/locations/asia-pacific/thailand
Author Business Card

Law and Practice in Thailand

Authors



Baker McKenzie (Bangkok) is the leading international law firm in Thailand, whose Bangkok office works on some of the most innovative transactions and largest projects in the country. As the largest law firm in Thailand, Baker McKenzie is the go-to firm for leading Thai, Fortune 500 and Asia Pacific 100 companies doing business in the country. The team of more than 250 lawyers, and 58 partners, works closely with colleagues across offices in Asia Pacific and the rest of the world. The healthcare and life sciences team has deep experience in local regulatory processes and laws affecting pharmaceuticals, medical device, and biotechnology businesses and the firm's dispute resolution lawyers represent clients in domestic and international litigation and arbitration.