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 in matters relating to advertising, labelling and contracts. One of the specific matters 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 business operator must also not manufacture, import for sale or advertise any product which is unsafe.
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 other laws which may govern safety issues around other specific types of products, including:
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 handles product safety issues on a day-to-day basis, is the OCPB. As the primary regulator, the OCPB also 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 dangerous, the 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 in writing of the corrective measures that it is taking without delay (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 OCPB’s specific guidelines.
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 the FDA is empowered to enforce).
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 a product is found to be dangerous, or where a 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 the FDA is empowered to enforce).
The penalties for breaching the product safety requirements under the Consumer Protection Act will depend on the specific offence that may have been committed. The penalties include criminal fines and/or imprisonment.
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, at present there are no 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 a wilful or a 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 term “product” covers all types of movable property, including agricultural products and electricity, but excluding certain products specified in subsequent Ministerial Regulations.
Types of products that have been exempted so far include agricultural products created by nature, agricultural produce grown by farmers that originated in Thailand, as well as drugs and medical devices manufactured by public healthcare service providers specifically to treat individual patients or animals, or those manufactured pursuant to the public healthcare service provider’s orders.
The person (or the legal representative of that 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 of the jurisdiction of Thai courts will therefore be applied. Generally, if the injured person or business operator resides in Thailand, or 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.
There are no 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).
There are no specific rules relating to the disclosure of documents or other evidence in product liability cases.
However, under the Consumer Case Procedure Act, 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.
There are no 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:
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. There are no 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.
However, in the case of claims for liability under the Product Liability Act, the courts may also award additional compensation for mental damages arising from damage to the body or wellbeing of the injured party. Punitive damages not exceeding two times the compensation granted may also be awarded where the business operators have produced, imported or sold the products knowing that the products are unsafe, or fail to be aware of such facts due to gross negligence.
Under the Consumer Case Procedure Act, if the actual damages do not exceed THB50,000 (approximately USD1,480; this is based on the exchange rate at the time of writing and may be subject to change (this applies wherever an approximate USD amount is provided throughout this guide)), the courts are empowered to award punitive damages in amounts not exceeding five times the amount of the actual damages.
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 THB50,000 (approximately USD1,480) 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 available to business operators in product liability cases are that:
Adherence to regulatory requirements may 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 fees 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.
There is no 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 fulfil 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 would normally take 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 picked up 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 USD41,790), with interest at the rate of 7.5% per year, plus THB900,000 (approximately USD26,675) 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.
Another class action case of note was a case filed against a cosmetics manufacturer by consumers who had used its skin whitening cream. In this case, the cosmetics manufacturer used a prohibited steroid substance in the whitening cream which caused a number of injuries for the users (including rashes, pruritus, causalgia, skin fractures and lesions). The relevant court ruled that the cosmetics manufacturer’s whitening cream was an unsafe product under the Product Liability Act. The court ordered the cosmetics manufacturer to compensate the injured consumers for more than THB10 million (approximately USD296,370). This case is of note is because, in addition to the foregoing damages, the court also ordered punitive damages of THB200,000 (approximately USD5,927) because the court was of the view that the cosmetic manufacturer knew that the steroid substance which it used in its whitening cream was unsafe but still used it. Although this amount may not be significant, it is one of the first cases in which the court has also ordered punitive damages and serves as a clear example for other business operators.
Thailand has started to see an increase in class actions that relate to product liability claims (eg, the use of class actions for products in the automotive industry). However, such cases are still limited. The aforementioned 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 Developments article in this Global Practice Guide.
Other recent notable trends in the development of product liability and safety law relate to prohibitions or restrictions on the use of specific products (eg, chemical substances) due to safety concerns.
There are no 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.
Notwithstanding the ongoing business disruptions which have arisen because of the COVID-19 pandemic, Thailand has not seen any significant impact to product liability and product safety laws as a result of 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, as far as the firm is aware there are no 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, there have recently been 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.
25th Floor, Abdulrahim Place
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+66 2666 2824
+66 2666 2924Yuthana.Sivaraks@bakermckenzie.com www.bakermckenzie.com/en/locations/asia-pacific/thailand
Although there have been no recent significant developments in Thailand’s product liability laws, specifically in terms of changes (or potential changes) to the applicable laws and Supreme Court decisions that may be used as new legal precedents, there has been a recent interesting case in the court of first instance, which is outlined below.
It is worth noting that the public’s awareness in general regarding their rights in relation to product safety and product liability has increased. This stems from the fact that there have been a number of cases relating to consumer products that have received wide coverage in the media, both traditional (such as TV and newspapers) and social media. However, these cases were able to be settled or ended outside the court and did not create a significant development in terms of legal consumer protection or precedents interpreting terms in the Liability for Injuries from Unsafe Products Act, B.E. 2551 (2008) (the “Product Liability Act”).
Additionally, throwing back to 2022, Thailand passed a law to establish the Thailand Consumers Council (the “Council”). The Council consists of several consumer protection organisations, the purposes of which include the protection of the consumer’s rights, supporting and monitoring any problems in relation to products or services, and assisting other consumer protection organisations. The Council is also empowered to initiate and proceed with lawsuits on behalf of consumers, including, but not limited to, civil, criminal, administrative and consumer cases.
The Council plays an important and significant role in the consumer protection and product liability landscape. It has assisted consumers with several consumer and product safety cases, for instance, filing a breach of contract case against an airline to recover an airfare due to a cancellation of flights during the COVID-19 pandemic, filing a claim for damages arising from the unfair practice of a condominium developer, and filing against an insurance company for breach of contract in relation to a COVID-19 insurance policy.
Recent Product Liability Case
This case involved a class action between a group of nine consumers and car-related business operators. Even though this case has only been decided by the court of first instance at this stage, it provides an interesting ruling and interpretation of the Product Liability Act. However, there may be changes to these interpretations in the higher courts.
A group of nine consumers who suffered damages from cars they purchased filed a complaint against three business operators: (i) a business operator who owns a trademark of those cars (the “car-brand business operator”); (ii) a business operator who manufactures parts of those cars for the car-brand business operator; and (iii) a business operator who assembles cars for the car-brand business operator. There was no manufacturer or importer claimed against in the complaint.
In this case, the consumers found that their cars did not work properly, with problems including the car’s engine shaking, motor oil unexpectedly increasing, improper cylinder firing, unusual diesel particulates in the filter system, the car’s inability to accelerate, and overconsumption of petrol.
According to the court’s decision, which is publicly available, the court decided that only the car-brand business operator is a business operator in this case. This is because the court took the view that the other two defendants manufactured parts and assembled the cars for the car-brand business operator and, therefore, they were not the manufacturer and are not responsible for the damages. This decision affirms the definition of the term “business operator” under the Product Liability Act to mean that a person that uses a trademark that leads to the understanding that it is the manufacturer is considered a business operator under the Product Liability Act.
Furthermore, as per the Product Liability Act, the term “unsafe” means a product that 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). The consumers in this case were able to prove the existence of those problems with their cars. Even though the consumers did not actually suffer any physical damage, the court was of the view that the existence of those problems with the cars caused damage to the mental health of the consumers. This is because consumers would be anxious and concerned that their cars would be unsafe. The court, therefore, ruled that these cars are unsafe products under the Product Liability Act, as they caused damage to the consumers’ mental health (and might potentially have caused damage to the consumers’ physical health).
In light of the damage caused to the consumers’ mental health discussed above, the court ordered the car-brand business operator to compensate each consumer for THB30,000 (approximately USD890) in addition to the cost of repairs incurred by those consumers. Though this compensation for mental health may not be a significant amount, it affirms the practical enforceability of compensation for mental damages.
There was also an issue regarding punitive damages in this case. The Product Liability Act authorises the court to award punitive damages not exceeding two times the compensation where the business operator sold the products knowing that the products were unsafe, or failed to be aware of such facts due to gross negligence. As to this case, the car-brand business operator could prove to the court that it was not aware of the cars’ problems at first. However, once there were complaints regarding these problems, it made an effort to resolve the problems and repair those cars. As a result, the court did not order the car-brand business operator to pay punitive damages. This may potentially be a future benchmark for defence against punitive damages.
To summarise, this case not only highlighted the practicality of a class action suit but also raised interesting issues, and emphasised the following interpretations of the Product Liability Act:
Recent Development of Draft Defective Product Liability Bill
In late 2022, the Thai Cabinet approved the draft Defective Product Liability Bill (“Lemon Law Bill”) in principle. The Lemon Law Bill will now be forwarded to the Office of the Council of State and the House of Representatives for further review and consideration.
Even though there has not been much development in the Product Liability Act, it is apparent that the laws in relation to consumer protection have been continually developed in order to increase the level of protection for consumers. The Lemon Law Bill is the next significant development.
The Lemon Law Bill is a law that protects consumers against defective or unsafe products bought from the seller and provides a remedy for those defects to compensate the consumers. The Lemon Law Bill should be deemed part of consumer protection law in relation to product safety.
There may be confusion between the legal implications of the Product Liability Act and those of the Lemon Law Bill. While the Product Liability Act stipulates the liability for damages or injuries caused by an unsafe product, the Lemon Law Bill stipulates liability for defects in the products, and not damages or injuries.
For instance, a buyer buys an electric car from a car dealer. If the buyer later finds that the car has problems with the battery system and the car cannot be used due to such battery problem, the car dealer will be liable to remedy those defects, which could be repairing the vehicle or replacing it with a new car, in accordance with the Lemon Law Bill. However, if the buyer is not aware of the battery system problem, which is a manufacturing defect, and the buyer is later injured by the defective battery exploding, the car manufacturer will be liable to the consumer for the injuries in accordance with the Product Liability Act.
The Lemon Law Bill has been drafted, revised and updated over the years to reflect changes in the market conditions. The key issues under the current Lemon Law Bill can be summarised as follows:
A business operator must be responsible to consumers for product defects that impair the utility of such products.
The term “business operator” under the Lemon Law Bill includes the manufacturer, contract manufacturer, importer, and seller or lessor under a hire-purchase agreement (in certain cases).
The term “consumer” includes the purchaser or lessee under a hire-purchase agreement who purchases or hire-purchases a product from the business operator, provided the purchase or hire-purchase is not for commercial or business purposes.
The Lemon Law Bill does specifically cover electronic devices, personal cars, personal motorcycles, and other products that may be specified later. However, the Lemon Law Bill does not cover the purchase or hire-purchase of a used product, a product that is sold as is, or a product purchased at an auction.
In the event of a defect, a consumer is entitled to request the business operator to repair the product, change the product, decrease the sale price, or terminate the purchase or hire-purchase agreement.
Any contractual terms that are not in accordance with the requirements of the Lemon Law Bill will be void.
The above is only a summary of the key issues under the Lemon Law Bill. As there are remaining steps before the enactment of the Lemon Law Bill, the details of these key issues may be revised again. Business operators should monitor the development of the Lemon Law Bill as it may directly affect their legal liability.
Governmental Unsafe Product Alert Channel
In addition to the above recent product liability case and the development of the Lemon Law Bill, there is another interesting development, which relates to the governmental communication to warn consumers of unsafe products. The Office of Consumer Protection Board developed a website called the “Thailand Consumer Alert System,” which can be found at thaicas.ocpb.go.th, to alert consumers of any products (both products in Thailand and outside of Thailand) that may be unsafe.
The website provides alerts and a summary of products that are unsafe for consumers. The summary generally includes the category of the products, name and model of the products, name of the manufacturer or importer, location where the products are sold, description of the products that are unsafe, relevant cautions, and status of products (eg, whether they are recalled).
This website should certainly help improve and promote effective communication with consumers in relation to the safety of products, considering that it is easily accessible and has a clean and clear interface.
25th Floor, Abdulrahim Place
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+66 2666 2824
+66 2666 2924Yuthana.Sivaraks@bakermckenzie.com www.bakermckenzie.com/en/locations/asia-pacific/thailand