Consumer Goods (Button/Coin Batteries) Safety Standard 2020

The central concept is the “applicable button/coin battery”. Section 4 defines this as: (a) a small, single cell battery of lithium chemistry with a diameter greater than the battery’s height; or (b) a small, single cell battery of a chemistry other than lithium with a diameter of 16 mm or greater and a diameter greater than the battery’s height. This definition excludes non-lithium batteries smaller than 16 mm in diameter, but it captures most common coin and button cells used in household goods. The definition of “small” is not further elaborated - it appears to be qualitative - but the geometry requirement (diameter > height) is the key.

The instrument distinguishes between packaging types. “Non-reclosable packaging” is packaging that cannot be reclosed after opening (e.g., a blister pack that must be cut or torn). “Reclosable packaging” can be opened and closed again (e.g., a screw-cap vial). “Blister packaging” is a subset with individual cavities sealed by a backing; in practice it is often non-reclosable. The child accessibility requirement in section 7 applies to all packaging types, but the testing pathways differ. For non-reclosable packaging, compliance can be achieved by testing representative samples to Annex E of the Primary Batteries Standard (as modified by section 9), or by complying with clause 3.2.1 of the Australian (Non-reclosable Packaging) Standard (AS 5808-2009), clause 3.2.1 of the European (Non-reclosable Packaging) Standard (EN 862:2016), clause 4.2.1 of the International (Non-reclosable Packaging) Standard (ISO 28862:2018), or paragraphs 1700.15(a) and (b)(1) of the US Poison Prevention Packaging Standard (16 CFR 1700.15). For reclosable packaging, the options are Annex E, clause 4.3.1 of the Australian (Reclosable Packaging) Standard (AS 1928-2007), or clause 3.3.1 of the International (Reclosable Packaging) Standard (ISO 8317:2015). Note that European and US standards are not offered for reclosable packaging. Blister packaging has an additional requirement under section 8: the packaging must be designed so that only a single battery is released at a time. This can only be satisfied by testing to Annex E (not by the other standards). Section 9 modifies Annex E of the Primary Batteries Standard so that references to “consumer type coin cells with a diameter of 16 mm and larger” and to “cell” or “coin cell” are taken as references to “applicable button/coin batteries”. This broadens the scope of the testing standard to cover smaller lithium batteries that might otherwise fall outside its original scope.

The “application day” is defined as the day after 18 months beginning on the day this instrument commences. This gives suppliers a fixed grace period. The instrument also defines various “Standards” by specific publications and dates (e.g., AS 5808-2009, ISO 8317:2015). All are pinned to the version in force at the time the instrument commenced, not any later revision. This means that if a referenced standard is updated, the Australian standard still refers to the old version unless the instrument itself is amended.

The primary duty-bearers are any persons who supply applicable button/coin batteries in trade or commerce in Australia. This includes Australian manufacturers, importers, distributors, wholesalers, and retailers. Because the instrument also applies to batteries “supplied together with other consumer goods” (section 5(1)), it extends to any business that includes separate button/coin batteries alongside a product, such as a toy sold with a spare battery, a remote control with a spare button cell, or a medical device that ships with a separate battery. However, if the battery is already installed in the consumer good before supply, it is excluded (section 5(2)(c)), so a product with batteries pre-installed does not require child-resistant packaging for the installed batteries - though the product’s own safety standards may still apply under other laws.

The exemption for zinc-air chemistry batteries designed for hearing aids affects hearing aid manufacturers and suppliers of hearing aid batteries. Those batteries do not need to comply, even if they meet the dimensional definition of “applicable button/coin battery”. The bulk supply exemption covers batteries supplied with the intention that they be used in trades, professions, or industries and not intended for sale to the general public. This affects industrial and commercial suppliers who provide batteries in bulk to businesses (e.g., for use in equipment maintenance). However, the exemption turns on the supplier’s intention, which may be difficult to prove in a dispute.

The instrument also affects testing laboratories, which must be accredited to perform the required testing (if required by the chosen pathway). Standards bodies (Standards Australia, ISO, IEC, CEN) are indirectly affected as their standards are incorporated. The regulator, the Australian Competition and Consumer Commission (ACCC), is responsible for enforcement, compliance requests, and potentially making standards available for viewing. Consumers are affected indirectly: they may pay higher prices for batteries and products containing separately supplied batteries, and they may be unable to purchase certain battery types that cannot economically meet the packaging requirements. However, the stated benefit is a reduction in child injury cases, which is a public health outcome that the instrument seeks to achieve.

The core duty is imposed by section 6: on and after the application day, an applicable button/coin battery’s packaging must comply with the requirements in Part 2. This duty applies to the person who supplies the battery to a consumer (as defined under the Australian Consumer Law). The duty is continuous - every unit supplied must have packaging that meets the standard. Section 7(1) states the core requirement: the packaging must be “designed to be resistant to being opened by young children”. This is a performance requirement, not a design mandate, but the acceptable means of demonstrating compliance are narrowly prescribed. The supplier must select one of the compliance pathways and ensure that representative samples of the packaging have been tested before supply (see sections 7(2)(a)(i), 7(3)(a)(i), and 8(2)(a)). There is a right to choose among the alternative standards for each packaging type, but that choice must be defensible if the regulator requests identification under section 108 of the ACL (see notes in sections 7 and 8). For blister packaging, only the Annex E pathway may be used for the single-release requirement, but the core child-resistance could theoretically be satisfied via another standard if it also covers blister packaging. However, note 1 to section 8 states that both requirements can be satisfied by Annex E, implying that if a supplier uses a different standard for child resistance, they still need Annex E for the single-release test.

The supplier also has rights under the exemptions: they are not required to comply for batteries that fall under section 5(2) (hearing aid zinc-air, bulk supply, pre-installed batteries). The bulk supply exemption requires that the supplier intends the batteries to be used in trades/professions and that they are not intended for sale to the general public. This is a factual determination based on the supplier’s knowledge and marketing. The exclusion for pre-installed batteries means that a supplier can avoid the packaging obligation by physically installing the battery in the consumer good before supply. This creates an incentive to design products so that batteries come pre-installed. However, that may raise other issues (e.g., user-replaceability, battery life) and does not exempt the product itself from other safety standards.

The supplier must keep records sufficient to demonstrate which compliance pathway was chosen and that testing was conducted. There is a right, on request by the regulator, to “nominate the applicable requirements” (per section 108 of the ACL). This implies an obligation to maintain that information and produce it on demand. The supplier is also entitled to rely on the frozen versions of the standards as at commencement; they need not check later updates.

The instrument itself does not prescribe penalties; it is a safety standard under the Australian Consumer Law. As such, supplying goods that do not comply with the standard is an offence under ACL sections 106 (civil) and 107 (criminal). Section 106 provides that a person who supplies consumer goods that do not comply with a safety standard is liable for a civil penalty. The maximum civil penalty for a body corporate is $10 million per contravention. For an individual, it is $500,000. Criminal liability under section 107 requires proof of intention or recklessness, and the penalties are significantly higher: for a body corporate, up to $50 million, or three times the value of the benefit received, or, if the court cannot determine the benefit, 30% of the body corporate’s adjusted turnover during the breach period (for criminal offences under the Act). Individuals face imprisonment for up to 10 years or a fine up to $2.5 million, or both.

The ACCC can also issue infringement notices (penalty notices) for alleged contraventions of safety standards, with penalties of $133,200 for listed corporations and lesser amounts for individuals and unlisted corporations. The regulator may require a supplier to nominate which requirements they rely on for compliance (section 108 of the ACL). This is a tool to identify the chosen pathway and verify testing. Additionally, the ACCC can issue a recall notice or impose a ban under Part 4-1 of the ACL if non-compliant products are in the market.

The practical risk for suppliers is that even one non-compliant unit in the supply chain could trigger liability, and penalties are not capped per unit but per contravention. The standard attaches to each supply. Defences under the ACL (e.g., reasonable mistake of fact, reliance on information supplied by another, act of a third party) are available but can be difficult to establish, especially if the supplier has not conducted proper due diligence. Moreover, the instrument’s incorporation of testing “before the supply … to a consumer” (sections 7(2)(a)(i), 7(3)(a)(i), 8(2)(a)) means that the supplier must have evidence that representative samples were tested and found compliant. Failure to test in advance is itself a breach, even if the packaging actually is child-resistant. Enforcement is likely to focus on importers and larger retailers due to their position in the supply chain, but small businesses are not immune.

This instrument is a mandatory safety standard under the Australian Consumer Law, which is a national law applied as a law of the Commonwealth, states, and territories. Therefore, it interacts with the entire regulatory regime of the ACL, including parallel provisions on product bans, recalls, information standards, and liability for safety defects. For example, if a button/coin battery causes injury due to failure of child-resistant packaging, the injured party may also have remedies under ACL Part 5-4 (consumer guarantees) or Part 3-5 (manufacturer’s liability for goods with safety defects). Compliance with the safety standard is not a defence to a product liability claim, but non-compliance is strong evidence of a safety defect. The standard does not replace the general safety obligations under the ACL; it adds a specific mandatory requirement.

The instrument also references specific packaging standards: AS 5808-2009, AS 1928-2007, EN 862:2016, ISO 28862:2018, ISO 8317:2015, and US 16 CFR 1700.15. These standards are incorporated as frozen at the time of commencement. Any amendments to those standards after commencement do not automatically apply to this safety standard unless the instrument itself is amended. This creates a potential divergence from international best practice: a supplier may be compliant under the frozen standard but non-compliant under a newer version of the same international standard. However, it also provides regulatory certainty. Suppliers who use a standard that is later withdrawn or replaced should check for any amendment to this instrument.

The exclusion for zinc-air hearing aid batteries (section 5(2)(a)) means that those batteries may still be subject to other safety standards, such as the Therapeutic Goods Act or general ACL product safety provisions. The bulk supply exemption aligns with the ACL’s distinction between supply to consumers and supply for business use. However, the instrument does not exempt batteries supplied as components of consumer goods if the battery is supplied separately but intended for later installation (e.g., a battery purchased with a device but not yet installed). Only pre-installed batteries are excluded. This interacts with other product-specific safety standards, such as the Consumer Goods (Toys) Safety Standard, which may require certain markings or design features for toys that include or are sold with batteries. In such cases, both standards apply cumulatively. The instrument does not override state or territory fair trading laws, but because the ACL is applied uniformly as a law of each state and territory, the requirements are essentially consistent across Australia.

Based on the text provided, this instrument appears to be in its original form as made in 2020. No amending instruments are listed in the source, and there are no notes indicating any commencement provisions or subsequent variations. The instrument was made under subsection 104(1) of the Australian Consumer Law and was presumably registered on the Federal Register of Legislation. As of the time of this analysis, no amendments have been identified. It is possible that minor corrections or updates have been made that are not reflected here, but the user-supplied text shows no amendment history. The instrument is still relatively recent, having been applied since the application day (18 months after its commencement, which would likely fall in 2021 or 2022 depending on registration date). Over time, it may be amended to update the referenced standards or adjust the definition of applicable button/coin battery, especially as new battery chemistries emerge. However, a key feature is that the instrument locks in the standards as at its commencement, so any amendment would require a separate regulatory instrument. Suppliers should monitor the Federal Register for any proposed changes.

The source text does not reference any litigation concerning this instrument. Given its recent commencement, there are as yet no reported judicial decisions that interpret or apply its specific requirements. That said, the instrument is essentially a specification of compliance pathways, and most disputes are likely to occur at the enforcement level (e.g., ACCC infringement notices or compliance directions) rather than in courtroom litigation. Any challenge would likely centre on whether a particular packaging design meets the child-resistance requirement, or whether a battery falls within the definition of “applicable button/coin battery”, or whether a supplier was entitled to an exemption (e.g., does the bulk supply exemption require documentary proof of intention?). There may also be arguments over what constitutes “representative samples” for testing. Because the instrument incorporates multiple standards, litigation may also involve the interpretation of those standards, which can be complex. However, to date, no known case has resulted in a published judgment. The first case to arise could set important precedents, particularly on the scope of “small, single cell battery” or the application to batteries supplied “together with” other goods. Practitioners should therefore be alert to developments.

Several provisions create traps for the unwary. First, the 18-month transition period: the instrument commences on a date, but the “application day” is 18 months after that. Suppliers cannot use the transition period to supply non-compliant product after the application day. The practical trap is that suppliers may not realise the standard applies to batteries supplied together with other consumer goods, including spare batteries packed with products. If a battery pack is included in the box of a toy or a device, that packaging must be child-resistant. The exemption for pre-installed batteries (section 5(2)(c)) does not help if the battery is supplied separately in a plastic tray within the same box. Suppliers of consumer goods should consider whether they can pre-install the battery to avoid the standard, but that may not be feasible for all products (e.g., products that require the user to insert the battery, or where battery life means a spare battery is needed).

Second, the modification of Annex E (section 9) broadens its scope from coin cells 16 mm and larger to all applicable button/coin batteries, which includes smaller lithium batteries (e.g., CR2032 is 20 mm, but a CR1025 or CR1220 may be smaller than 16 mm but still captured if lithium chemistry and diameter > height). The testing protocol in Annex E was originally designed for larger cells; applying it to smaller batteries may require careful adaptation or additional justification. The instrument says testing “in accordance with Annex E … as modified by section 9”, but it does not provide additional specifications for smaller batteries. This could lead to ambiguity about whether smaller batteries can pass.

Third, the requirements for blister packaging: the additional rule that only a single battery is released at a time (section 8(1)) can only be satisfied by Annex E testing (section 8(2)). A supplier that uses a non-Annex E standard for child resistance but does not also test to Annex E for the single-release aspect will breach the standard even if the child-resistance is excellent. The interaction between sections 7 and 8 is critical: the note says both requirements can be satisfied by Annex E, but that does not mean a supplier can avoid the single-release test by using another standard. If the supplier chooses, for example, to satisfy section 7 via the Australian (Non-reclosable Packaging) Standard, they must still test the blister packaging to Annex E for section 8. That means running two separate compliance processes.

Fourth, the frozen standards: the instrument references specific editions of standards (e.g., AS 5808-2009, ISO 8317:2015). If a supplier relies on a later edition of a standard assuming it is equivalent, they may not be compliant because the text of the instrument only references the listed edition. The notes indicate that standards can be purchased from SAI Global or the relevant body, and the ACCC can make copies available for viewing. But a supplier must use the correct edition.

Fifth, the bulk supply exemption (section 5(2)(b)) requires that the batteries “are supplied with the intention to be used in trades, professions or industries” and “are not intended for sale to the general public”. This is an intention-based test. If a supplier sells bulk packs through retail channels (e.g., a pack of 50 button cells sold at a hardware store), it is likely intended for sale to the general public, so the exemption does not apply. Retailers cannot rely on this exemption just because the pack says “professional use” if it is available to consumers.

Sixth, the instrument uses “supply” as defined in the ACL, which includes offering for supply, exposure for supply, and advertisement for supply. Therefore, even displaying non-compliant packaging on a shelf before the application day could be considered supply after that day if the product remains on sale. Suppliers must clear old stock by the application day.

Seventh, the supplier may be required to nominate which requirements they rely on (section 108 note). This means a supplier must be prepared to justify their compliance pathway. If a supplier has chosen a pathway that is not clearly documented, they could face an enforcement action even if the packaging is actually safe.

Practical steps for businesses that supply applicable button/coin batteries (including as supplied with other goods) should start well before the application day.

First, identify whether your product contains or is accompanied by an applicable button/coin battery. Check the battery’s chemistry (lithium or other) and dimensions (diameter and height). If it meets the definition, the standard applies unless an exemption is available. For batteries that are supplied pre-installed, mark them as installed before supply to rely on section 5(2)(c). For batteries supplied in bulk to businesses only, ensure there is a clear intention that they are not for sale to the public (e.g., restrict marketing to trade channels, include warnings on packaging, and maintain distribution records). For hearing aid batteries, confirm they are zinc-air chemistry.

Second, determine the packaging type: non-reclosable, reclosable, or blister (for the additional requirement). The categories are not mutually exclusive - blister packaging is typically non-reclosable but is separately addressed. Obtain the relevant standards: at minimum, obtain the Primary Batteries Standard (IEC 60086-4:2019) to use the Annex E pathway, or the specific Australian, European, International, or US standards as needed. These can be purchased from SAI Global or similar sources; the ACCC can provide viewing access but not free copies.

Third, select a compliance pathway. For non-reclosable packaging: Annex E, AS 5808-2009 (cl 3.2.1), EN 862:2016 (cl 3.2.1), ISO 28862:2018 (cl 4.2.1), or US 16 CFR 1700.15(a) and (b)(1). For reclosable packaging: Annex E, AS 1928-2007 (cl 4.3.1), or ISO 8317:2015 (cl 3.3.1). For blister packaging: must test to Annex E for the single-release requirement (section 8). Note that the child-resistance requirement can also be met by Annex E, so it is efficient to use Annex E for both. However, if a supplier uses another standard for child resistance (e.g., AS 5808 for non-reclosable blister), they must still test to Annex E for the single-release requirement. This may mean two separate test regimes. Most suppliers will find it simpler to rely solely on Annex E for all packaging types.

Fourth, arrange for testing of representative samples of the packaging before any supply to a consumer (sections 7(2)(a)(i), 7(3)(a)(i), 8(2)(a)). Testing must be conducted in accordance with the chosen standard. For Annex E, the modifications in section 9 apply, so the sample must represent the actual battery and packaging to be supplied. Ensure the testing laboratory is appropriately accredited to perform the specific standard. Keep testing reports as evidence of compliance.

Fifth, maintain records: document which compliance pathway was selected, the date of testing, the test results, and the supplier’s justification for the choice. This is essential in case the regulator requests a nomination under section 108. Also, keep copies of the standards used (property rights permitting).

Sixth, implement supply chain controls. If you import batteries, ensure your overseas suppliers provide evidence of compliant packaging and testing. For retailers, ensure that the products you sell from upstream suppliers have been certified compliant. Do not assume compliance based on generic claims.

Seventh, monitor for any amendments to this instrument. Although the standards are frozen, the instrument itself may be updated. Also, watch for ACCC guidance on interpretation of terms like “small, single cell battery” or “representative samples”. Participate in industry associations that monitor regulatory developments.

Eighth, plan for stock clearance: all non-compliant packaging must be removed from supply before the application day. That includes existing inventory. If you have old stock that cannot be repackaged, consider whether it can be sold to a business for industrial use (bulk exemption) or whether you need to discard it.

Finally, consider cost-benefit for low-volume suppliers. If the compliance costs exceed the profit from selling small volumes, it may be more economical to exit the Australian market for those battery products. Alternatively, consider prepackaging with compliant packaging from a specialised supplier. The standard does not impose design restrictions beyond child-resistance and single-release, so creative solutions that achieve the performance requirement may be possible, but they must still be tested against the chosen standard.