In the modern era, supermarkets do more than sell groceries. They now produce their own products under their own labels. Of course, they don’t actually produce these products, but they acquire them, put their logos on them, and sell them as their own.
With great branding power comes great legal responsibility.
In particular, I refer to the Consumer Protection Act 1987, where the supermarket is treated as being the producer under the Act, even if the actual manufacturer is identifiable. This article explains why own-brand supermarkets fall within the statutory definition of ‘producer’, and why liability cannot be avoided by identifying the underlying manufacture
Who is the ‘producer’?
The 1987 Act implements strict liability for defective products. Unlike contractual claims (such as the Consumer Rights Act 2015), the 1987 Act creates non-fault liability against certain categories of defendants collectively referred to as “producers”.
S2(2), which gives rise to damages to an individual who sustains injury as a result of a defective product:-add
This subsection applies to—
(a) the producer of the product;
(b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;
(c) any person who has imported the product into the United Kingdom in order, in the course of any business of his, to supply it to another.
[emphasis added]
It’s clear that when a supermarket markets a product as its own brand, it is implying that they are the producer of that product. It is irrelevant that they did not physically make it. The reasoning is simple. From a consumer’s point of view, the supermarket acts as the producer. The actual manufacturer’s identity is often hidden or considered unimportant to the final user.
Can a supermarket delegate liability if they provide the identity of the actual manufacture?
The answer is no.
The act does not have a mechanism to transfer liability. Firstly, the closest mechanism is s2(3), which is aimed at sellers (distinguishable from producers) who are made responsible for the damage unless they are able to identify the identity of one or more persons to whom s2(2) applies.
This means that a seller (which could be the supermarket) can provide details of a producer, but that in their capacity of a seller. If they are deemed to be the producer of the product as per s2(2)(b), then they could still refer to the underlying manufacturer, but this does not extinguish their own liability under s2(2)(b). This can be seen by virtue of s(2)(5):-
Where two or more persons are liable by virtue of this Part for the same damage, their liability shall be joint and several.
The supermarket cannot rid itself of liability on the basis it can identify the actual manufacturer.
What if the supermarket refuses to deal with the claim?
The supermarket would be in difficulty. They are still liable as they fall within the definition of a producer as per s2(2)(b). Whilst the underlying manufacturer could be brought in, they would be jointly and severally liable.
There are statutory defences and the Claimant must still satisfy the Court that, on balance, the product is not as safe as people are generally entitled to expect, and the defective nature was is in keep with s3 of the 1987 act. Once established, strict liability applies.
Conclusion
The Act intentionally establishes overlapping liability categories. It broadly defines “Producer” to include various actors in the supply chain, such as own-branders, making supermarkets their own producers rather than just fallback defendants. Rooted in consumer protection policy, the CPA 1987 aims to ensure injured consumers have a clear and accessible Defendant to hold liable, without relying on complex supply chains or cross-border manufacturing.
This prevents supermarkets from avoiding liability by simply pointing to manufacturers, which would create unnecessary barriers for consumers, especially when dealing with overseas or hard-to-pursue manufacturers. It is entirely different from supermarkets that are wholly suppliers. They can be held liable, but only until they reveal the manufacturer’s identity. This rule does not apply to supermarkets that sell their own branded items.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
