CE Marking: False Loopholes and Mistakes
This article is intended as a continuation of my blog "CE Marking in Boardgames Advice", where I go into the process of achieving CE marking in some detail. As a short overview the CE mark is a European Union safety mark which can be placed on products prior to sale to the public to show that they are safe for use. It takes the form of a "CE" on products and stands for European Conformity ( specifically Conformité Européenne).
I've noticed on various boardgame based forums and groups people asking if they can avoid CE marking and what loopholes to use when doing so. Worse, I've seen replies coming in that state avoiding marking is in some way desirable. I'm going to address a couple of the claims I've seen in those replies and attempt to make the argument for CE marking here.
The first thing I've heard mentioned a lot is the 14+ age limit and that it makes marking unnecessary, now this is both true and untrue, which is when people should be at their most careful. Its true that a game suitable only for adults has guidance in certain EU countries to allow for reduced standards relating to testing as a toy to some degree. Its essentially untrue in a range of ways. Firstly, what constitutes "suitable for adults", "adults" and "reduced standards in testing" here varies and if you can find it clearly defined across the EU then you understand the issue well enough that you shouldn't be looking for advice from anybody. The guidance suggests that a game with a clearly adult theme or with complexity great enough to make it inaccessible to children should need less or no testing, the age that qualifies as adult in this context varies but 14 or less is generally the cut off. What this means is that stamping 14+ on the side of your box is meaningless, the intended or suggested age range will hold very little weight in legal proceedings (if it did you wouldn't see so many comedy 9-99 style age ratings). If you're relying on this and something goes wrong you'll potentially need to prove in court that your game was advertised, aimed at and accessible to adults only. If you put 14+ on the side of a box of rainbows and unicorns you'll have a hard time defending that. Also, consider that "My Little Scythe" was partly designed by a 5 year old who played "Scythe", so if you're arguing complexity your game would have to be 3 times as complicated as "Scythe". The "Card's Against Humanity" base set has CE marking, so clearly they don't feel confident that their adult theme covers them, meaning your theme should probably be more adult than that for safety. Finally, remember that if things do go wrong you'll be making the argument that your game could not be played by an under 14 year old in a court where it not only has been but in so doing it has injured the child in question.
If your game is, in fact, exempt from CE marking in toy manufacturing due to its age rating will you then conclude that you can legally fill the box with razor blades and poison? If not then you know that whatever you sell to the public in the modern day is going to fall under some form of safety regulation, finding out that it isn't CE toy marking does not answer the question as to what it is.
Most importantly, your age rating is intended to be a customer service offering buyers important information to help them make a purchase, its not meant to be a fake number selected to protect you. The 14+ CE marking limit has essentially rendered age ratings on games meaningless. In no other part of my life do I think "ooo, this is suitable for a 14 year old, I'm bound to enjoy it then".
The second comment I've heard is "Just put the CE mark on without the testing, the worst thing that can happen is it gets turned back at customs". You can put a CE mark on your box without testing, it is not an awarded mark like, for example, the British Kite mark. It should be understood that I say you can in the same way that you can enter whatever number you like in your tax return each year, which is to say you can't and you'll be subject to serious legal action if you do.
If you put a CE mark on without testing, the worst that can happen is not that you might get turned back at customs and just test it then for three main reasons. One, they won't pick this up on a spot check, the whole point is that you keep your own records on CE marking and it is not enforced as a rule until something goes wrong. Two, if you lie about CE marking and casually commit international corporate fraud by so doing, the idea that the worst punishment that the EU will see fit to level at you is to ask that you please do the testing that you said you'd done anyway is oddly naive. Its actually a £5000 fine and 3 months in prison, and that's if no-one has been hurt. Three, the worst that can happen is that the product you have failed to test for flammability catches light, or one you don't test for shatter effects brakes into a dangerous shard and someone is injured or worse. The worst thing that can happen to you then is that the injured parties sue you and discover you lied about safety testing.
I don't understand anyone being resistant to CE testing. CE testing is your protection not your burden. Society, or at least the European part of it, knows both that businesses wants to operate without being sued for unforeseen accidents and that the public want to live without excessive risk to their safety. As such they have set a level of testing and agreed that products produced below that level are negligent in accidents and deserve to be sued, while those above have been hit by an unfortunate accident and deserve protection. CE marking is not hard, I asked my manufacturer to find a 3rd party testing facility and organise the testing, and they did. It took two or three e-mails and a week to complete. CE marking is not expensive, it cost as much as a single illustration during development. If you ask the boardgame supporting public if you should spend more time and money on your artwork the response will usually be 100% yes; its something we should all be ashamed of that if you ask if you should spend the same money on protecting the public that percentage will be considerably lower. My CE marking costs half what my public liability insurance does and it covers the game for the duration of its production while the insurance has to be paid out yearly, making the CE marking the best value legal protection you're likely to find. Its not too much for the public who will pay for your product to ask that you check it is safe to use. Proper testing is the professional, responsible, decent thing to do.