Definition and legal concept of toys
The term ‘toy’ is commonly used to refer to items that are primarily or exclusively intended for children to play with. In a legal context, the designation carries a precise and binding meaning, which is regulated particularly at the European and national levels by relevant legal provisions. Toys are expressly defined in various laws and regulations and are subject to specific requirements in order to ensure the health and safety of child users.
Toys in product regulation
The most important legal framework for toys within the European Union is Directive 2009/48/EC on the safety of toys (known as the Toy Safety Directive). This has been implemented in German law by the Second Ordinance on the Product Safety Act (Toy Ordinance – 2. ProdSV). The Toy Safety Directive defines ‘toys’ as products that are clearly intended or designed for use in play by children under 14 years of age.
Distinguishing toys from other products
The legal concept of a toy requires distinction from similar or related product groups such as decorative items, sports equipment, collectibles, or children’s equipment (e.g., furniture). The decisive factor for classification as a toy is the intended or foreseeable use and the design of the product. Fundamentally, toys must at least stimulate or be intended for free play.
Legal requirements for toys
Product safety requirements
Toys are subject to particularly strict statutory requirements regarding safety, labeling, and conformity assessment. The aim of these regulations is to minimize risks for children – a particularly vulnerable group of consumers – as much as possible.
Safety requirements under the Toy Safety Directive
According to the Toy Safety Directive, toys may only be placed on the market if, during foreseeable or reasonable use, they do not endanger the health and safety of children or others. This includes requirements relating to:
- Mechanical and physical properties (e.g., risk of choking from small parts)
- Flammability
- Chemical properties (limits for harmful substances such as lead, phthalates, nickel)
- Electrical properties (for electronic toy components)
- Hygiene and radioactivity
Conformity assessment procedure
Manufacturers are required to conduct an internal conformity assessment for each toy product and ensure compliance with safety requirements. This includes creating technical documentation and affixing the CE marking. The CE marking signals the toy’s conformity with all relevant European regulations.
Market surveillance
Market surveillance authorities are mandated to monitor the placing on the market and oversight of toy products. If violations of legal requirements are identified, penalties, product withdrawals, or recalls may be imposed.
Labeling obligations and warning notices
Toys must be labeled with certain information. This includes in particular:
- Name and address of the manufacturer and, if applicable, the importer
- CE marking
- Serial or model number (for identification purposes)
- Information regarding the intended age group
- If applicable, specific warnings (for example, ‘Not suitable for children under 36 months’ for small parts that may be swallowed)
Warning and usage instructions must be clear, understandable, and clearly visible on the product, the packaging, or the accompanying documentation.
Manufacturer, distributor, and importer obligations
Obligations of the manufacturer
Manufacturers of toys bear the primary responsibility for compliance with all legal obligations. They must ensure that every toy placed on the market meets both directive and national requirements. Additionally, they must issue an EU declaration of conformity and retain it for ten years.
Duties of importers and distributors
Importers and distributors are required to ensure that the toys they import or sell comply with all relevant regulations. They must check that the toy is correctly labeled and supplied with the necessary documents and, if necessary, cooperate with the market surveillance authorities.
Liability and sanctions
Product liability
In the case of physical injuries caused by defective toys, strict liability under the Product Liability Act (§ 1 ProdHaftG) may apply. In addition, there are tortious liability provisions (§ 823 BGB) as well as contractual claims arising from purchase or works contracts.
Sanctions and recall
If a toy breaches applicable safety requirements, the responsible party placing it on the market is obliged to take appropriate measures and inform the competent authority. In individual cases, a product recall may be ordered. In addition, fines and civil claims for damages may be imposed.
Special requirements for specific toys
Electronic toys
In addition to the Toy Safety Directive, electronic toys are subject to further regulations, such as the ElektroG (Act on the Marketing of Electrical and Electronic Equipment) as well as the Low Voltage and EMC Directives.
Toys with special hazard potentials
Toys that entail specific hazards due to their properties (e.g., chemistry sets, projects involving laser technology) are subject to additional requirements regarding user information, supervision duties, and instructions for use.
International aspects and customs
Toys imported from third countries into the European Economic Area must meet all European safety requirements. Notably, the responsibility of importers is emphasized, as they are effectively treated as manufacturers. This concerns the technical documentation, labeling, and ensuring conformity.
Summary and significance for consumer protection
The term ‘toy’ is comprehensively regulated in law and goes far beyond its everyday use. The extensive obligations and safety requirements are intended to ensure that children are protected from hazards and that parents are fully informed about potential risks. Observance and monitoring of these regulations are a central aspect of consumer protection and place high demands on manufacturers, importers, and distributors in the toy market.
Sources:
- Directive 2009/48/EC on the safety of toys
- Second Ordinance on the Product Safety Act (Toy Ordinance – 2. ProdSV)
- Product Liability Act (§ 1 ProdHaftG)
- German Civil Code (§ 823 BGB)
- Act on the marketing, take-back and environmentally sound disposal of electrical and electronic equipment (ElektroG)
Frequently asked questions
What legal requirements must toys meet in Germany?
In Germany, toys may basically only be placed on the market and sold if they comply with statutory provisions. The key regulation is the Toy Ordinance (2. ProdSV), which transposes the EU Toy Safety Directive 2009/48/EC into national law. This stipulates that toys must not pose risks to the safety and health of children or others. Particular consideration must be given to requirements relating to mechanical and physical properties, flammability, chemical properties (e.g., limits on substances such as plasticizers, heavy metals, or allergens), electrical properties, as well as hygiene and radioactivity. Before distribution, manufacturers must carry out a conformity assessment procedure and confirm compliance in an EU Declaration of Conformity. In addition, the product must bear a CE marking as proof of compliance with European safety standards. Furthermore, manufacturers and importers must keep detailed technical documentation available for presentation to market surveillance authorities upon request.
Who is liable for damages caused by toys?
For damages arising in connection with toys, various liability rules apply. According to the Product Liability Act (ProdHaftG), the manufacturer is primarily liable if a personal injury (injury or death) or property damage (to privately used property, minimum amount 500 euros) occurs due to a manufacturing or design defect, or due to missing or incorrect labeling. For imported toys, the importer is deemed to be the manufacturer. In addition to product liability, there may also be contractual liability for warranty against the seller, for example, in case of product defects. There is also the possibility of tortious liability under the German Civil Code (BGB), for example, for breach of traffic safety duties. Liability cannot be excluded in advance nor limited by notices.
What labeling obligations exist for toys?
Toy manufacturers and importers are subject to comprehensive labeling requirements to ensure transparency and product safety. According to the Toy Ordinance, the following details must be affixed to the toy, label, or packaging in a clearly visible, legible, and permanent manner: name and address of the manufacturer or importer, CE marking, type, batch, or serial number for identification, where appropriate warning notices (e.g., for age, ‘Not suitable for children under 3 years’), and instructions for use in German if necessary. Additional labeling may arise from special laws, for example, if electrical components are included. Missing or inadequate labeling constitutes an administrative offense and may lead to recalls, sales bans, or fines.
What special regulations exist regarding age suitability of toys?
The age indication is a key element of product labeling and subject to strict legal requirements. Toys must feature a warning if they are not suitable for children under 36 months (3 years), for example, due to small parts that could be swallowed or other hazards. The warning must be clear, easily visible, and stated in German (‘Caution! Not suitable for children under 3 years.’). Proper age grading is based on the toy’s safety properties and intended uses. Incorrect or missing information can result in product liability, administrative offenses, and competition law warnings.
What needs to be considered when selling used toys?
Even for the resale of used toys, the safety requirements of the Toy Ordinance and other relevant protection laws generally apply. Private individuals who occasionally sell used toys (e.g., at flea markets) are exempt from many requirements. However, anyone who trades regularly and on a larger scale (including online retailers) is considered a distributor and must meet all legal requirements: in particular, the purchaser’s warranty rights, the obligation to take back defective goods, and, if necessary, information obligations about possible dangers or specifications. Defective or no longer safe toys must not be offered; otherwise, claims for damages and fines may result.
What regulations apply to the advertising of toys?
When advertising toys, in addition to general competition law (UWG), specific legal requirements must be observed. For instance, no information may be provided that could mislead or endanger children or parents regarding the functioning, use, or risks of the toy. Advertising must not suggest that a child will suffer disadvantages or social exclusion without the product. Furthermore, advertising for toys regarded as dangerous must be particularly transparent with respect to suitability, age indications, and risks. Infringements may lead to competition law warnings, injunctions, and fines.
What are the consequences of violating toy law provisions?
Anyone who violates statutory provisions on the distribution of toys must expect severe sanctions. Market surveillance authorities may impose recall or sales bans. Administrative enforcement fines, financial penalties, and in serious cases (especially if there is intentional danger to life and health), criminal prosecution are also possible. Furthermore, consumers and competitors have rights to damages and injunctive relief. In the context of competition, infringements may constitute an unfair commercial practice that can result in warnings. Persistent or repeated violations may even lead to exclusion from trading on certain platforms or at fairs.
