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Product Liability & Safety 2020
Trends and Developments
Christine Leuch
Pascale Koester
Sophie Püschel-Arnold
Walder Wyss Ltd is a Swiss commercial law firm with offices in Zurich, Geneva, Basel, Berne, Lausanne and Lugano. Its 230 legal experts specialise in corporate and commercial law, banking and finance, intellectual property and competition law, industrial know-how, public and administrative law, dispute resolution and tax law. The firm's clients include national and international companies, publicly held corporations and family businesses as well as public law institutions and private clients. With regard to product regulatory and product liability matters, its experts advise and represent clients in administrative, civil and criminal proceedings, contract negotiations and regulatory compliance at all its locations.
1. Product Safety
1.1 Product Safety Legal Framework
The Swiss product safety legal framework consists of:
Sector-specific federal regulations for specific product categories, for instance:
the Federal Act on Foodstuffs and Utility Articles and implementing ordinances, such as:
the Federal Council's Ordinance on Foodstuffs and Utility Articles;
the Federal Department of Home Affair's Ordinance on the Safety of Toys; or
the Federal Department of Home Affair's Ordinance on Cosmetic Products;
the Federal Act on Medicinal Product and Medical Devices and implementing ordinances, such as the Federal Council's Ordinance on Medical Devices;
the Federal Council's Ordinance on Machines;
the Federal Act on Electrical Light and Heavy Current Installations and implementing ordinances, such as:
the Federal Council's Ordinance on Electrical Low Current Installations; or
the Federal Council's Ordinance on Electromagnetic Compatibility; or
the Federal Act on Construction Products.
Horizontal framing regulations which are applicable cross-sectorally to all products, such as:
the Federal Product Safety Act and the implementing Federal Council's Ordinance on Product Safety – these regulations are applicable to the extent that a sector-specific regulation does not address product safety (eg, regarding post-market surveillance or competences of the enforcement authorities);
the Federal Act on Technical Barriers to Trade and the Federal Council's Ordinance on the Placing of Products on the Market according to Foreign Regulations – these regulations shall ensure free trade between Switzerland and its main trading partners by obliging the Swiss legislators to align product regulations with those of such partners, in particular with the European Union; and
the Federal Act on Product Liability which provides for the strict liability (ie, not depending on the producer's fault) of a producer for its defective products.
1.2 Regulatory Authorities for Product Safety
The enforcement of product safety regulation in Switzerland is generally sector-specific. This means that the enforcement authorities that are competent in a specific product sector are likewise competent to enforce the specific product safety regulations for that sector. Depending on the sectoral law, the enforcement either lies with the cantons or the federal government. The main regulators are the following.
The State Secretariat for Economic Affairs (SECO) co-ordinates the enforcement of Swiss product safety legislation in agreement with the competent sector-specific enforcement bodies and is, additionally, the surveying regulatory enforcement authority in several product sectors; the SECO also operates a product safety reporting and information centre together with the Federal Consumer Affairs Bureau (FCAB).
The Federal Inspectorate for Heavy Current Installations (ESTI) is responsible for the technical supervision and inspection of electrical installations and electronic devices.
The Swiss Council for Accident Prevention (BFU) is competent for personal protective equipment, specifically with regard to traffic, sport and household needs, and for machines, though with regard to recreational use only.
The Swiss Accident Insurance Institution (SUVA) is the competent enforcement body for personal protective equipment and machines, with regard to operational use.
The Swiss Agency for Therapeutic Products (Swissmedic) is competent for the market surveillance of therapeutic products and medical devices.
The respective cantonal bodies – eg, cantonal inspectorates/laboratories – are generally competent to enforce the Swiss Foodstuffs and Utility Articles legislation (including toys, cosmetic products or food contact materials).
The respective cantonal bodies – eg, cantonal inspectorates/laboratories – are generally competent to enforce Swiss chemical legislation.
1.3 Obligations to Commence Corrective Action
Generally, for consumer products (ie, products that are intended for consumers or likely to be used by consumers under reasonably foreseeable conditions), the Swiss Product Safety Act obliges the producer or any other distributor to take adequate measures (ie, corrective actions) in the course of its business to prevent potential dangers arising from those products.
A corrective action is deemed "adequate" if the disadvantages that arise for the producer or other distributor are not considered completely disproportionate in comparison with the advantages resulting for the affected consumers. Potential measures include the issuing of warnings, a sales stop, the withdrawal from the market or the recall of the product. The law does not provide for any fixed formal requirements. Therefore, any corrective action may be chosen if it ultimately serves to avert the danger emanating from the product. In practice, the competent enforcement bodies regularly require a producer/importer to issue a warning throughout the supply chain as well as towards consumers (provided that the product has already reached the consumer). Depending on the actual safety risk, the enforcement body may also require that the warning be made public – eg, on the producer's website and/or on the website of the Swiss Federal Consumer Affair Bureau (regarding the role of the Bureau, please refer to 1.1 Product Safety Legal Framework).
1.4 Obligations to Notify Regulatory Authorities
Switzerland follows a risk-based approach regarding the obligation to notify the regulatory authorities. Generally, the duty to notify the authorities in respect of a product safety issue is triggered – for consumer products – if a producer or any other person placing a product on the market knows or ought to know that the product in question presents a risk to the safety or health of users or third parties (Article 8, paragraph 5, Swiss Product Safety Act). The respective provision in the Product Safety Act corresponds to the producer's or other distributor's obligation to notify the authority according to Article 5, paragraph 3 of the European General Product Safety Directive (2001/95/EC). The notification obligation of the Product Safety Act applies where the specific sectoral law does not provide for any separate notification obligation.
The notification must be made immediately. According to a FAQ-guide published by the State Secretariat for Economic Affairs [SECO], "immediately" means no later than one to two days, depending on the associated safety risk. Swiss legal scholars advocate a longer period of a maximum of ten days pursuant to the EU commission's Guidelines for the Notification of Dangerous Consumer Products to the Competent Authorities of the Member States by Producers and Distributors in accordance with Article 5(3) of Directive 2001/95/EC.
The Swiss Product Safety Act defines the minimum content of the notification. There are no legal requirements as to the form of the notification. However, some regulatory bodies provide for voluntary notification templates on their websites but emphasise that the completion of the form should not delay the notification.
1.5 Penalties for Breach of Product Safety Obligations
Generally, whoever fails to timely notify the authorities of a dangerous or potentially dangerous consumer product according to Article 8, paragraph 5 of the Swiss Product Safety Act or whoever violates the duty to collaborate with the enforcement authorities (Article 11, Swiss Product Safety Act) is liable for a fine of up to CHF40,000 (in the case of wilfulness) or CHF20,000 (in the case of negligence). Sectoral law, however, sometimes provides for different criminal liability. In any case, the law sets forth that the person within the producer's organisation who is responsible for the offence should be punished. The principal is only punished if he or she wilfully or negligently, in breach of a legal obligation, failed to prevent the offence.
There are no publicly available examples of companies being prosecuted or fined for breaching these obligations. However, that does not mean that no such cases exist. Under Swiss criminal prosecution law, the courts may generally only publish a judgment if the publication is in the public's interest or in the interest of the injured party.
2. Product Liability
2.1 Product Liability Causes of Action and Sources of Law
Depending on the respondent of the action (eg, a producer, distributor or retailer), an injured party would likely base its claim for damages on the following grounds.
Against the Producer
The Federal Product Liability Act provides for the non-contractual strict liability (ie, not depending on fault) of a producer for damages if a defective product leads to the death or injury of a person or the damaging or destruction of property. "Producer" means the person who has manufactured the end product, a basic material or a partial product; any person who claims to be the producer by affixing its name, trade mark or other distinctive sign to the product ("quasi-producer") as well as any person importing the product for distribution purposes to Switzerland. The liability is only triggered if the product is deemed defective – ie, if it does not offer the safety that one may expect considering all circumstances (such as the get-up or overall appearance of the product, the expected use or the time of market placement). The Federal Product Liability Act, however, provides for several defences (please refer to 2.12 Defences to Product Liability Claims for further details).
In addition, the injured party could base a damages claim on contract (if the producer is the seller and the injured party is the buyer) or general tort law. The latter, however, would require proof of fault. Given this obstacle, a claimant would generally invoke the respective torts claim only on a subsidiary basis.
Against the Seller
The Swiss Code of Obligations provides for the strict contractual liability of a seller for the direct damage suffered by a buyer due to a defective object purchased from that seller. "Direct damage" would also include any personal damage or damage to property which was directly caused (ie, without any additional causal link) by the product's defect. If the seller were also the producer of the defective product, the injured buyer could alternatively base its claim for damages on the Federal Product Liability Act as discussed above.
2.2 Standing to Bring Product Liability Claims
In Switzerland, the standing to bring claims for product liability is – such as with any other claim – a matter of substantive law – ie, it depends on the legal basis of a claim. A party has standing to sue if it (at least allegedly) has a substantive claim under a certain law or legal relationship.
In the context of product liability, claims are usually based on either the Federal Product Liability Act, a contract or tort law (as discussed in 2.1 Product Liability Causes of Action and Sources of Law).
Under the Federal Product Liability Act, any person injured by a defective product or any person suffering property damage due to a defective product may bring a claim against the responsible producer.
For contractual claims, a party to a contract usually has standing to sue if it suffers damage following a violation of the contract by the other party (in the context of product liability – eg, in case of the delivery of a defective product).
Under general tort law, any person who has suffered damage following a civil wrong committed by another person with whom the injured party is not (necessarily) linked by a legal relationship, such as a contract (eg, as often in product liability cases: the consumer and the producer of a product), has standing to sue.
Which of these legal bases is the most favourable for an injured party to bring claims related to a product depends largely on the underlying facts of the case. Whenever there is a contractual relationship, an injured party will most probably bring claims under that contract given that, under Swiss law, there is a presumption of fault – ie, the burden of proof is on the breaching party causing damage, and in sales contracts there is even a strict liability without requirement of fault for direct damage. If there is no such contract – which is usually the case between an injured party and a producer – the injured party would generally try to sue a producer primarily under the Federal Product Liability Act because of its strict liability, whereas under tort law the producer can only be held liable in case of fault.
2.3 Time Limits for Product Liability Claims
The applicable time limit depends on the legal basis that the respective claim is based on.
For claims based on the Federal Product Liability Act the statute of limitations is three years, starting from the date on which the injured person has become or should have become aware of the damage, the defect of the product and is able to identify the producer (Article 9 of the Federal Product Liability Act).
For claims based on contract law (in the context of product liability most likely a sales contract), the statute of limitations is two years, starting from the day the defective product was delivered (Article 210, Swiss Code of Obligations).
For claims based on tort law, the Swiss Code of Obligations provides for two different statutes of limitations, a relative and an absolute one (Article 60, Swiss Code of Obligations). The relative limitation period is three years, starting from the date on which the injured person has become aware of the damage and the person liable for it. The absolute limitation period is ten years for damaged goods and 20 years for personal injuries, starting from the date on which the damaging event occurred or ended. This absolute limitation period runs regardless of whether the injured person has any knowledge of the damage and even if the damage has not yet occurred. This longer limitation period under tort law with regard to personal damage has the effect that a producer may be held liable by an injured party under tort law, even if the limitation period for claims under the Federal Product Liability Act has already lapsed.
2.4 Jurisdictional Requirements for Product Liability Claims
The Swiss Civil Procedure Code defines the locally competent court for a dispute in domestic matters, whereas the Swiss Federal Act on Private International Law or the Lugano Convention (applicable in civil and commercial matters involving parties from EU or European Free Trade Association (EFTA) states) deals with the question of territorial jurisdiction of a Swiss court in international, cross-border disputes.
Rules regarding the place of jurisdiction are quite comparable both in domestic and in international cases. As a general rule, proceedings can be initiated in the competent court at the domicile or seat of the respondent (eg, at the seat of the liable producer). Depending on the area of private law concerned, a claimant may also initiate proceedings at another forum – eg, in product liability cases, a consumer would be entitled to bring a claim at its own domicile.
With regard to subject-matter jurisdiction, it can be said that generally speaking, all cantonal courts in Switzerland have jurisdiction in all areas of the law and apply both cantonal and federal law. There are no specific/specialised courts for product liability claims, which can therefore be brought before any locally competent court.
However, the Swiss Civil Procedure Code grants the cantons the option to establish specialised commercial courts, in which the panel of judges is mixed – ie, composed of regular judges and experts (so-called expert judges) in the economic sector relevant for the case. Four cantons – Zurich, Bern, Aargau and St. Gallen – have established such a court, which is part of the cantonal supreme court and serves as a court of first instance for commercial matters. Such a commercial court has subject-matter jurisdiction if:
a claim concerns the commercial activity of at least one of the parties to the dispute;
the decision could be appealed to the Swiss Federal Supreme Court (which requires an amount in dispute of at least CHF30,000); and
the parties to the dispute are registered in the Swiss commercial register or a similar foreign registry.
Where only the defendant is registered in the commercial register, a claimant can choose to initiate proceedings either before the commercial court or the locally competent ordinary court. If a producer has its registered seat in a canton with a commercial court, an injured party can thus choose to bring its product liability claim either before the commercial court or the ordinary court.
If a claiming party has the possibility to choose where to bring its claims, it again depends on the underlying facts and on the party's perspective which court is the most favourable. Commercial courts have the advantage that experts from the relevant sectors are part of the judges' panel, whereas judges of ordinary courts generally do not have expert knowledge in the specific product sector, but their decisions might be more consumer-friendly. Another difference to take into consideration is that there is only one legal remedy against decisions rendered by a commercial court, whereas decisions of the ordinary courts can be appealed against twice (see 2.11 Appeal Mechanisms for Product Liability Claims).
2.5 Pre-action Procedures and Requirements for Product Liability Claims
Swiss procedural law provides for mandatory reconciliation proceedings. Before initiating the main proceedings, the claimant must submit a reconciliation request to the Conciliation Authority (so called "justice of peace"), following which the Authority will schedule a conciliation hearing. If no agreement can be reached, the Conciliation Authority will issue an authorisation to proceed (ie, to file a claim before court), which is valid for three months. If a claim is filed before a court without a valid authorisation to proceed, the court will not decide on the merits but dismiss the case for procedural reasons.
Despite the mandatory nature of the reconciliation proceeding, the Civil Procedure Code provides for a few exceptions which might be of relevance in product liability cases. A claimant may unilaterally waive conciliation if the respondent's registered domicile is outside of Switzerland. The parties may mutually agree to waive reconciliation if the amount in dispute is at least CHF100,000. In addition, and irrespective of the amount in dispute, the parties may agree to replace the reconciliation procedure with mediation pursuant to Article 213 of the Swiss Civil Procedure Code.
In addition, and as set out in 2.4 Jurisdictional Requirements for Product Liability Claims), certain cantons have established commercial courts. If a producer has its registered seat in one of these cantons, an injured party may choose to bring its product liability claim either before the commercial court or the ordinary court, as long as the criteria as set out in 2.4 Jurisdictional Requirements for Product Liability Claims are met. If a claimant decides to bring a claim before a commercial court, no reconciliation proceedings take place and the claim must be filed directly with the commercial court.
2.6 Rules for Preservation of Evidence in Product Liability Claims
There are no specific rules under Swiss product liability law or Swiss procedural law, obliging a producer or other distributor to preserve any evidence in product liability cases.
There are, as in many other jurisdictions, general evidentiary risks in not preserving evidence. In a product liability case, the claimant is generally required to prove that the defendant's product is defective, and that the product defect is the cause of his or her injury or damage to property. Under Swiss product liability law, the defendant (producer or other distributor) has several defences (please refer to 2.12 Defences to Product Liability Claims for further discussion of these). In this light, a producer or other distributor is well advised to preserve documentation (eg, random samples, technical documentation, consumer feedback, etc) and product samples for every batch so that such evidence can be readily produced if necessary. Furthermore, under some sectoral laws, producers may be required to preserve the conformity declaration or technical documentation.
2.7 Rules for Disclosure of Documents in Product Liability Cases
There are no specific rules on the taking of evidence in product liability cases, and the Swiss Civil Procedure Code does not provide for any pre-trial or discovery mechanisms.
Pursuant to the general rules on the taking of evidence in civil procedure, each party must indicate the evidence it wants to rely on in its briefs. To the extent that such evidence is already in its possession, the party must file the evidence together with its briefs. For product liability cases, this holds, in particular, true for:
product samples;
documentary evidence (such as technical documentation, risk assessment, customer feedback, etc);
expert opinions; and
digital or other data.
To the extent that it is the responsibility of the court to order the taking of evidence, parties must submit respective requests together with precise descriptions of the evidence. This holds, in particular, true for:
opinions to be submitted by a court-appointed expert (indication of the questions to be presented);
inspections to be executed by the court (indication of the subject); and
witness testimony (indication of the witnesses) – under Swiss law, witnesses will be examined by the court and there are no cross-examinations.
If a party wants to rely on evidence in the possession of the opposing party or a third party (eg, a defective product, purchase receipt, medical reports), it has to precisely identify the evidence and request that the court order that the evidence be provided.
If a potential claimant (ie, an injured person) has reason to believe that evidence is at risk, it may request the preventive taking of evidence by the court. This request can be filed at any time during the proceedings and even prior to the commencement of the proceedings.
The preventive taking of evidence is considered an interim measure. The request is usually granted if:
a specific law or provision allows the preventive taking of evidence;
the evidence is at risk (which is the case if the evidence may cease to exist or may alter before the ordinary evidentiary proceedings); or
there is another interest worthy of protection.
In any case, the requesting party has to credibly demonstrate (but not prove) the grounds on which it bases its request. In case of imminent harm, the request can be granted ex parte.
2.8 Rules for Expert Evidence in Product Liability Cases
The court may seek an opinion from one or more experts at the request of a party or ex officio. However, the court will do so only if it considers an expert opinion necessary to prove relevant facts that are disputed by the parties. If such an opinion is sought, it is the court that appoints as well as instructs the experts and submits the relevant questions to them. Prior to this, the parties are given the opportunity to submit additional questions or to have the questions modified. The court can order that the experts submit their opinion in writing or present it orally. It may also summon the experts to the hearing to present and explain their written opinion. In that case, the parties will be given the opportunity to ask for explanations or to put additional questions to the expert. However, cross-examination of the expert is not permitted.
Furthermore, the court may put questions to a witness with expert knowledge in order to assess the merits of the case. The expert witness must have special expertise in the subject so that the court can examine the expert witness not only with regard to the merits, but also on its assessment thereof. However, an expert witness cannot replace an expert opinion. In contrast to an expert, the expert witness is not subject to an appointment procedure. Finally, an expert witness is liable to prosecution only for giving false testimony and not for giving a false expert opinion.
Parties are free to individually commission an expert opinion and to submit it in the proceedings. As opposed to an expert opinion that was produced by a court-appointed expert, the party expert opinion is not considered to be evidence but will only qualify as a party allegation.
2.9 Burden of Proof in Product Liability Cases
As a general rule under Swiss civil law, it is incumbent upon the party who wants to rely on a certain fact to establish and prove this fact. For product liability cases this means that it is generally the injured person who bears the burden of proof for all facts underlying its claim.
This holds true for all claims (and the respective requirements) based on tort law and on the Federal Product Liability Act. For claims based on a contract there is one deviation from this rule: the burden of proof for fault is reversed. This means that if all other requirements are met, it is assumed that the defendant was at fault and it will be upon the defendant (ie, the producer) to prove that this was not the case. From a procedural perspective, it may thus be favourable for an injured person to bring a claim based on contract rather than based on tort law. For claims based on a sales contract, provided that a direct nexus between the damage and the defect of the product can be established, fault is not a requirement at all. The same holds true for claims based on the Federal Product Liability Act.
The Federal Product Liability Act provides, however, for several exceptions to this strict liability (see 2.1 Product Liability Causes of Action and Sources of Law). In accordance with the general rule as set out above, it is the producer who bears the burden of proof for any fact it wants to rely on in order to exonerate itself from liability.
As to the relevant standard of proof: the general threshold is full proof, meaning that the court has to be convinced beyond any reasonable doubt. Where this is not possible (eg, because the defective product has been destroyed or disposed of or the amount of damage suffered cannot reasonably be quantified) the courts may apply a less strict standard.
2.10 Courts in which Product Liability Claims Are Brought
There are no specific or specialised courts for product liability cases in Switzerland. Therefore, such cases generally must be brought before ordinary courts (ie, the competent local court) or – in certain cantons and if the statutory prerequisites are fulfilled (see 2.4 Jurisdictional Requirements for Product Liability Claims) – before the competent commercial court.
Depending on the value in dispute, the proceeding is held in a simplified proceeding (for claims below CHF30,000) or in an ordinary proceeding (for claims above CHF30,000 or claims without monetary value).
In Switzerland, cases are decided by judges and the exact composition of a bench depends on local, cantonal law. In simplified proceedings, the court is however often composed of a single judge (Einzelrichter), whereas there are usually three or more judges (Kollegialgericht) on the panel in ordinary proceedings.
There is usually no minimum threshold with regard to the damages that can be claimed. If claims are brought under the Swiss Product Liability Act, however, the claimant must bear a deductible of CHF900 in case of a claimed damage to property.
With regard to the damages that can be awarded to a claimant, there is no maximum in absolute numbers. However, a claimant can only be compensated for the damages it actually suffered. In other words, Swiss courts do not award so-called punitive damages that exceed the amount of the actual loss. Swiss law does not allow a damaged party to take monetary advantage (enrichment) from the event of damage. Accordingly, the claimant must prove each individual damaged position (exact amount) and the causal link between the damaging event (in product liability cases: the defective product) and the respective position.
2.11 Appeal Mechanisms for Product Liability Claims
There are no specific rules governing the appeal mechanisms in product liability cases. The general procedural rules provide essentially for two appeal opportunities which are relevant for product liability cases: a first one to the high court of the respective canton and a second one to the Swiss Federal Supreme Court.
Appeal to the High Court of the Respective Canton
Final and interim decisions and decisions on interim measures of a court of first instance can be appealed if the amount in dispute is at least CHF10,000. The time limit for the filing of an appeal is 30 days in the case of an ordinary proceeding and 10 days in that of a summary proceeding. The appellant may submit that the first-instance court has (i) applied the law incorrectly, and/or (ii) established the facts incorrectly. The conduct of the proceeding is, to a large extent, at the discretion of the appeal instance – ie, the court of second instance will decide whether to conduct a second round of written submissions or to hold an oral hearing. The appeal instance may conclude the proceedings by either confirming the challenged decision, by rendering a new decision or by remitting the case to the court of first instance.
Appeal to the Swiss Federal Supreme Court
The decision of the court of second instance may be appealed to the Swiss Federal Supreme Court if the amount in dispute is at least CHF30,000 or if a question of fundamental interest is to be decided. The time limit for filing the appeal is 30 days. The appellant may essentially claim that the previous instance has (i) violated federal law; and/or (ii) established the facts manifestly wrongly or in violation of the federal law, provided that such deficiency was relevant for the outcome of the case. The procedure will be conducted in writing and will usually be limited to two written submissions. Like the previous instance, the Swiss Federal Supreme Court may confirm the challenged decision, render a new decision or remit the case to the previous instance.
Exception: Decisions of the Commercial Courts
There is only one legal remedy against a decision rendered by a commercial court, which is the appeal to the Swiss Federal Supreme Court. The procedure will be the same as described above.
2.12 Defences to Product Liability Claims
The Federal Product Liability Act provides for the strict liability of a producer. The producer is, however, not liable under the Federal Product Liability Act if it can prove that:
it has not placed the product on the market;
there was no defect when the product was put into circulation;
it did not manufacture the product for sale, or any other form of distribution with an economic purpose, or manufacture or distribute the product in the course of its professional activity;
the defect is due to the fact that the product complies with binding regulations issued by public authorities; or
the defect could not have been detected according to the state of the art in science and technology at the time the product was put into circulation.
Furthermore, the producer of a raw material or part product is not liable under the Act, if it can prove that the product defect is due to the construction of the product or the instructions of the producer of the end product.
2.13 The Impact of Regulatory Compliance on Product Liability Claims
A producer's failure to meet the regulatory requirements is considered a disappointment of the product user's justified safety expectations and can be decisive for the determination of the defectiveness of the product. Swiss courts, however, have repeatedly found that adherence to regulatory requirements is the minimum standard only when determining the justified safety expectations. The producer must assess in each individual case, whether its product meets the user's safety expectations and may not rely on adherence to regulatory requirements or the conformity assessments of regulatory bodies.
2.14 Rules for Payment of Costs in Product Liability Claims
In Switzerland, the claiming party has to pay an advance on the court costs to initiate court proceedings. The payment of the advance is a procedural requirement for the action, meaning that if no payment is made, the case will be declared inadmissible. This has been quite a threshold for claiming parties in general and in particular in product liability cases involving consumers, given that the amounts to be advanced are calculated based on the amount in dispute and are generally relatively high.
However, the claiming party may get reimbursement of the advance, if it wins the case as, in Switzerland, the "loser pays" principle applies. Accordingly, the costs follow the event which means that the losing party must bear the court costs and, on top of that, must compensate the successful party for its legal costs. Court costs are determined and allocated by the court ex officio; while party costs are awarded upon request.
Currently, the court does not directly reimburse an advance payment of court costs made by a successful party, but only grants this party a compensation claim against the unsuccessful party, so that the successful party bears the risk that the costs cannot be collected.
The compensation for legal costs is determined in accordance with a tariff which is primarily based on the amount in dispute. The tariffs vary between cantons, but in the majority of cases, the compensation granted does not cover the real legal costs incurred by a party; depending on the amount at stake, the amount payable as compensation for legal fees can be higher or lower than the actual costs incurred.
If no party succeeds entirely, the costs are allocated in accordance with the outcome of the case and unnecessary costs are charged to the party that caused them, independently of whether it was the losing party.
The Swiss Civil Procedure Code is currently undergoing a revision which is expected to affect the costs in civil proceedings. In particular, the draft proposal proposes to cut the advance payments in half (as a general rule but with certain exceptions) – which will lower the threshold to initiate proceedings. Furthermore, the proposal provides that the successful party will be directly reimbursed by the court for the advance it paid and will no longer have to reach out to the losing party to be reimbursed. Whether the draft proposal will be accepted still remains open.
2.15 Available Funding in Product Liability Claims
Third Party Funding
Third party funding is permitted and exists, although it is not very common in Switzerland. In principle, there are no restrictions to it, as long as the funded party is still in control of the claim. If the funded party is represented by legal counsel, it is important to avoid any set-up that might impair the counsel's ability to act independently and to pursue only its client's interests. Otherwise such a set-up might interfere with the counsel's obligations pursuant to the rules of professional conduct.
Contingency Fee Agreements
"No win, no fee" and contingency fee agreements are not permitted under Swiss law since they are considered to stand in contradiction to the counsel's obligations to act independently. According to the Swiss Federal Supreme Court, the attorney's rules of professional conduct require a base salary, which does not only cover the attorney's costs but must also guarantee a certain profit. Only if this precondition is met, may the parties agree on an additional success fee element in the sense of a top-up fee.
Legal aid is available (mostly) for private individuals under the preconditions that (i) the requesting party does not have the funds to finance the proceedings itself, and that (ii) the case is not devoid of any chance of success. The request must be placed with the same court that is also deciding on the merits. The court will decide on the request in a formal, preliminary proceeding, during which the requesting party must fully disclose its financials and state its position on the merits. If legal aid is granted, the applicant is relieved from the obligation to pay any court costs (including any advance on costs) and the state will cover any reasonable lawyer's fees. Legal aid does, however, not relieve the applicant from the obligation to pay party compensation to the opposing party in the case of defeat.
Legal Protection Insurance
Since the threshold for receiving legal aid is high and the costs for initiating proceedings are considerable, legal protection insurance is becoming more and more common amongst consumers. Even standard insurance packages include a legal protection policy. Since the conditions of such policies vary significantly and most insurance policies tend to avoid litigation and to settle potential disputes, it is, however, difficult to quantify the impact of legal protection insurance on product liability claims.
2.16 Existence of Class Actions, Representative Proceedings or Co-ordinated Proceedings in Product Liability Claims
There are no real collective redress procedures in Switzerland. However, it is possible to jointly bring several claims (eg, by a number of claimants filing their claims together when there are similar facts and legal grounds) in one proceeding or by way of an assignment of the individual claims to a claimant party. Since this is usually cumbersome, it is however rarely done.
In 2018, the Federal Council published a proposal for certain amendments to the Swiss Civil Procedure Code which provided for collective redress mechanisms. However, the proposed amendments were recently dropped by the Federal Council in the ongoing legislative revision of the Swiss Civil Procedure Code. The amendments regarding the collective redress mechanisms were split off and will be dealt with in a separate revision project.
2.17 Summary of Significant Recent Product Liability Claims
There are not many published decisions concerning product liability in Switzerland because most cases are settled. The following cases are noteworthy.
In its decision of 5 January 2015 (4A_365/2014; 4A_371/2014), the Federal Supreme court held that in the case of prescription drugs, the justified safety expectations of the product need to be assessed with regard to the safety expectations of the patient, but also with regard to the knowledge of the prescribing physician. In the specific case (it concerned the contraceptive pill "Yasmin"), it was deemed sufficient that the warning of a possible increased risk of a thromboembolic event compared to contraceptive pills of previous generation was only included in the expert information, but not in the patient information.
In its decision of 9 September 2013 (2C_13/2013), the Federal Supreme Court held that the malfunction of a product is considered a product defect if the product's value is specifically based on its serviceability (ie, a fire extinguisher)
On 18 March 2011 (137 III 226), the Federal Supreme Court decided that a producer was not liable for any defects that were not detectable at the time of the market placement according to the then current state of science and technology (so called development risks).
In its decision of 19 June 2010 (4A_255/2010), the Federal Supreme Court had to rule on a product liability claim relating to a defect window. The court held that the producer was not liable because the window was manipulated after it had been placed on the market, which was beyond the reasonable expectation of the producer.
On 4 October 2010, the Federal Supreme Court found that the compensation of an injured party is to be reduced if that party has failed to carefully study the product manual before using the product (4A_319/2010).
3. Recent Policy Changes and Outlook
3.1 Trends in Product Liability and Product Safety Policy
As of 1 January 2020, the statute of limitations for claims based on tort law has been revised, and extended time limits have been implemented (see 2.3 Time Limits for Product Liability Claims). The relative time limit has been extended to three years and the absolute time limit to 20. The extension was the consequence of a decision of the ECHR rendered in an asbestos-related case. In 2014, the ECHR considered that the former time limit of ten years violated the right of access to court in cases where the time limit lapsed before the injured party could possibly have been diagnosed with the disease.
Another trend that has had an impact on product liability cases and that has definitely arrived in Switzerland is sustainability. An initiative launched by Swiss citizens in 2016 with the aim of amending the Swiss Federal Constitution – the so-called Responsible Business Initiative – wants multinationals to respect human rights and the environment in their activities abroad. Under the Responsible Business Initiative, companies would be legally obliged to incorporate respect for human rights and the environment in all their business activities. This would also include responsibility for the manufacture and sale of products abroad. If the initiative is accepted by the Swiss parliament and passes the popular vote, the new provisions could provide a means for damages claims based on non-compliance with environmental laws against a Swiss parent company.
3.2 Future Policy in Product Liability and Product Safety
There are several areas of focus concerning future policy development in respect of product liability or product safety. Some of these areas have already been mentioned in this chapter – eg, recently enacted revisions of limitation periods or the Responsible Business Initiative (as discussed in 3.1 Trends in Product Liability and Product Safety Policy). In addition, the following developments are noteworthy.
As in many other countries, Switzerland is closely observing the increasing use of Artificial Intelligence (AI) and the challenges arising therefrom. Within this context, the Swiss Federal Council commissioned a cross-departmental working group under the leadership of the Federal Department of Economics, Education and Research (WBF) to examine the challenges of artificial intelligence and the need for action on the part of the federal government. With regard to product liability, the WBF report concluded that the current Swiss liability legislation has a very general character and can thus also be applied to new technologies. In this light, the Federal Council does currently not see any need for new regulations on AI. However, the WBF report does not exclude that specific liability provisions (in the form of a strict liability for the producer) could be enacted in the future.
In addition, some amendments on product safety relevant legislation have just been enacted or will soon come into force:
On 1 January 2020, an amendment to the Swiss Energy Efficiency Ordinance (EnEV) came into force, since then it has been mandatory to declare the energy consumption and other characteristics of various domestic appliances on the energy label. On 22 April 2020, the Federal Council decided on additional amendments to the EnEV to further align the Swiss regulations with the stricter energy efficiency regulations of the EU for mass-produced installations, vehicles and devices. These recent amendments to the EnEV will gradually enter into force, beginning 15 May 2020.
Furthermore, a revision of the Ordinance on the return, taking back and disposal of electrical devices (VREG) is pending. The VREG pursues the same objective as EU Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on Waste of Electrical and Electronic Equipment. Under the revised VREG, producers and importers of electrical devices will be required to pay a compulsory disposal fee for units placed on the Swiss market. So far, this fee has been paid on a voluntary basis only. The disposal fee will be used to finance the return and recycling of discarded devices. The obligation to pay the fee also applies to commercial direct imports and commercial internet purchases abroad. However, the obligation does not apply if private individuals import electronic equipment for their own consumption.
Finally, Switzerland has harmonised its medical devices legislation with the European Medical Device Directive (MDR) by respectively amending the Swiss Therapeutic Products (Act) and the Swiss Human Research Act (HRA). The amendments were enacted by the Swiss Parliament on 22 March 2019 and should have come into force on 26 May 2020 along with the implementing ordinances. Due to the COVID-19 pandemic, the EU deferred the full implementation of the MDR by one year. Switzerland has followed suit and will also defer the entry into force until 26 May 2021.
During the Covid-19 pandemic, the Swiss Federal Council enacted a great number of emergency regulations, which also affected product safety legislation and its enforcement. For example, it decreed a standstill of pending deadlines in civil and administrative proceedings (that also applied to proceedings before regulatory bodies or in product liability proceedings before civil courts) and it imposed restrictions on the supply of certain fever-reducing drugs to the public.
Furthermore, the Federal Council decreed that certain sanitiser products may be placed on the market under a derogation from the statutory requirements if they meet a defined formula. It also ruled that foodstuffs producers would not need to amend the labelling of their products if they have to replace ingredients due to delivery shortages, but only if the product was marked with a red sticker and aa URL directing the consumer to where the correct labelling could be consulted. However, this specific instance of non-compliance would only be tolerated if it would not endanger the health of the consumer (eg, not in the case of allergens). Also, the Swiss Federal Council exempted important medical goods from custom duties. In the areas mentioned above (drugs, medical devices and foodstuffs), regulators have treated the files of applicants with priority.
Due to Covid-19, Swiss suppliers have reorganised their production to meet the increased demand of the Swiss public for personal protective equipment (eg, masks), foodstuffs, drugs and medical devices. For example, producers of skin care products have started supplying sanitisers and a producer of coffee machines has started producing respirators.
Walder Wyss Ltd
christine.leuch@walderwyss.com www.walderwyss.com/en
The Contested Primacy of the Swiss Product Safety Act Over the Swiss Freedom of Information Act
In the enforcement of product safety legislation, producers trust that the competent regulatory body treats provided information as confidential – unless a disclosure is required to ensure the safety of the public (eg, in the form of a public warning). For many producers, the authorities' obligation to secrecy is an unconditional prerequisite for their willingness to collaborate with the authorities. On 7 April 2020, however, Switzerland's highest court, the Swiss Federal Supreme Court, came to a decision that might negatively influence such willingness to cooperate with the authorities.
The Swiss Freedom of Information Act (FoIA)
Since 2006, every person in Switzerland has had a statutory right to access official documents under the Federal Act on Freedom of Information in the Administration (FoIA). The FoIA aims to promote the transparency of the mission, the organisation and the activities of the Swiss administration. To this end, it contributes to public information by ensuring access to official documents. The FoIA also applies to administrative bodies that are competent to enforce Swiss product safety legislation.
The claim for access generally applies to any recorded information retained by the authority and issued by the same or shared with the same and which concerns the execution of its public function. Therefore, anyone (including the media or competitors) could request an enforcement authority to grant them access to information shared by a producer (or other person having placed the product on the market), were it not for the following reservation in the FoIA: Article 4 of the FoIA explicitly states that special confidentiality rules contained in other Federal Acts take precedence over a person's right to access, where those rules declare certain information secret or where they declare the access to certain information to be subject to requirements derogating from those set out in the FoIA.
The FoIA further contains exceptions where the right to public access shall be limited, deferred or refused if the access to the official document, inter alia, is likely to reveal professional, business or manufacturing secrets or if it is likely to prejudice the privacy of a third party, unless exceptionally outweighed by public interest (cf. Article 7 of the FoIA). However, whereas the confidential information is entirely exempted from the scope of the FoIA in the case of Article 4 of the FoIA, the FoIA remains applicable in the case of an exception under Article 7.
BFU v K-Tipp
Based on the right to access under the FoIA, a journalist of one of Switzerland's main consumer guide magazines (K-Tipp) requested access to the final report of a spot-check on the safety regulation compliance of nine baby changing tables that was carried out by the Swiss Council for Accident Prevention (BFU) in 2015. The spot-check revealed that two tables showed serious safety deficiencies and required a warning to the public, six tables were deficient but did not require a public warning and only one table was fully compliant. The BFU granted the journalist access to the report but blackened the information concerning the tables that had not required a public warning and concerning the fully compliant table. In reaction, the journalist filed a request for a mediation proceeding before the Federal Data and Information Commissioner in accordance with the procedural rules of the FoIA. As the mediation failed, the Commissioner provided the BFU with the (non-binding) recommendation that full access should be granted under the FoIA.
The BFU, however, decided not to follow the Commissioner's recommendation and adhered to the limitation of the disclosure. It based its decision on the following grounds: According to the Federal Product Safety Act (PSA), the BFU (or any other enforcement authority) is obliged to actively warn the public of dangerous products if the person placing them on the market does not take effective measures itself or does not do so in time. It is further obliged to make the information on the hazardousness of the product and on the measures taken publicly available (Article 10 paragraph 4 of the PSA). To the extent the public is not in danger, however, the BFU (or any other enforcement authority) remains under a statutory obligation to secrecy (Article 12 of the PSA). The BFU took the view that the statutory obligations under the PSA constituted special confidentiality rules that would be reserved from the FoIA in the sense of Article 4 of the FoIA and would thus take precedence over the journalist's right to access under the FoIA.
Swiss Federal Administrative Court decision
The journalist appealed the decision to the Swiss Federal Administrative Court. The journalist argued that the BFU's obligation to warn the public was considered an active duty to inform, whereas her right to access under the FoIA would go beyond such active information obligation. In this regard, the BFU's statutory obligation to secrecy would merely record the general principle of an authority's official secrecy obligation that the legislator of the FoIA wanted to replace with the principle for transparency. The BFU rebutted that the PSA (which came into force after the FoIA) constituted a complete, subject-specific overall system of regulations regarding information, publicity and confidentiality. Thus, the FoIA would not be applicable to information concerning the enforcement of the PSA based on Article 4 of the FoIA. Otherwise, private persons could use the information resulting from the controlling activities of the enforcement authorities without being bound by the principles of administrative law (eg, the principles of legality, proportionality, equality of rights or the ban of arbitrariness). In addition, the BFU put forward that a broader right to access would ultimately be detrimental to the producers' readiness to collaborate with the regulator.
In its decision of 2 May 2019 (A-5623/2017), the Swiss Federal Administrative Court, upheld the decision of the BFU. It considered that by the enactment of an enforcement authority's statutory obligation to warn the public of dangerous products under Article 10, paragraph 4 of the PSA, the Swiss legislature had already balanced the public's information interest against a producer's interest in the secrecy of the information. This balancing of interests would apply to the authority's obligation to secrecy under Article 12 of the PSA in a complementary manner (meaning that the obligation to secrecy applies to the extent the information is not considered relevant for the safety of the product, which would justify a public warning in the sense of Article 10, paragraph 4 of the PSA).
If the journalist's right to access had been granted, it could have had the same effect as if the BFU had warned the public according to Article 10, paragraph 4 of the PSA. Thereby, the court was mindful of the possibility that a journalist could – after being granted access – publish the data on the product which could in turn encourage consumers not to buy the product or to raise warranty claims, even though the regulator had decided against a public warning. This way, the authority's statutory obligation to inform, which is bound by certain conditions (specifically a certain risk factor), would virtually lose its purpose as its conditions would be circumvented. In this light, the Court concluded, the ratio legis would speak for the primacy of the PSA over the FoIA.
Decision of the Swiss Federal Supreme Court and its consequences
The journalist appealed against the Federal Administrative Court's decision before the Swiss Federal Supreme Court. On 7 April 2020, the Supreme Court approved the appeal on the following grounds (1C_299/2019): On the basis of the legislative materials of the PSA, the Supreme Court held that the special confidentiality duty in Article 12 of the PSA concerned manufacturing and business secrets only.
As regards general security issues, however, the Supreme Court held that third parties should be able to obtain the relevant information from the authority. According to the Supreme Court, the confidentiality duty in the PSA aimed at protecting the intellectual property of a producer so that competitors could not obtain confidential manufacturing or business information (eg, construction plans) by a request for information under the FoIA. However, the legislative materials would not indicate that the statutory confidentiality duty was intended to protect more extensive information than business or trade secrets.
Furthermore, the Supreme Court found that the duty to actively inform the public in case of a dangerous consumer product (Article 10, paragraph 4 of the PSA) in combination with the right to access under the FoIA would ensure a reasonable graduation of information: If a product would be considered dangerous for the safety and health of the public, the authorities would be obliged to actively warn the public in case the person having placed the product on the market would not take adequate measures. If a product caused less serious complaints, there would be no duty to actively inform the public under the PSA. However, this would not preclude there being a claim under the FoIA to obtain access to such information.
In contrast to the BFU and the Swiss Federal Administrative Court, the Supreme Court found that the publication of such documentation would not have the same impact as a public warning as it would attract less publicity. The duty to actively warn the public under Article 10, paragraph 4 of the PSA would therefore not lose its meaning if the FoIA took precedence over the statutory duty to secrecy under Article 12 of the PSA. In consideration of the foregoing, the Supreme Court decided that such statutory duty to secrecy would not take precedence over the FoIA in the sense of Article 4 of the FoIA. The FoIA would thus remain fully applicable. As a consequence, the Supreme Court ordered the lower instance to assess the journalist's request in light of the FoIA, whereby it would have to assess whether any exception to the right to access under Article 7 of the FoIA would apply (eg, the protection of business or trade secrets).
The Swiss Supreme Court's decision is the subject of considerable controversy in the Swiss product safety community. In line with the Supreme Court, advocates of the principle of transparency opine that reservations from the FoIA should be assumed as restrictively as possible. They put forward that affected producers could still prevent the disclosure by invoking an exception under Article 7 of the FoIA (such as the existence of business or trade secrets or the primacy of privacy rights). This argument, however, gives little thought to the protective purpose of the PSA and to the producer's role in achieving that purpose.
If the obligation to secrecy in the PSA does not take precedence over a private person's right to access under the FoIA, the affected economic operator (eg, producers) could no longer rely on the regulator's absolute confidentiality with regard to all provided information (provided no public warning is required due to the hazardousness of the affected product). It is true that under the FoIA, the authority would still carry out a balancing of interests. The economic operator could thus still try to prevent the disclosure (or at least to limit the disclosure) by invoking an exception from the FoIA (eg, because business or trade secrets are at stake). However, this resort bears substantial risks for the economic operator and might come with significant costs.
First of all, the affected economic operator would have to prove that the relevant information falls under an exception in Article 7 of the FoIA. This would be particularly challenging with regard to information that lacks clear confidential character, such as risk assessments or sales numbers. Further, under the FoIA, the enforcement authority is obliged to consult the affected economic operator and seek its opinion on the disclosure if it considers granting the request. The economic operator, however, is granted a non-extendable deadline of only ten days to bring forward arguments against the disclosure. This deadline is very short if one bears in mind that (i) the economic operator might be a third party (ie, not the producer itself) that wants or is contractually obliged to align its response with the producer, and (ii) the affected economic operator itself might not have expert knowledge of FoIA procedural rules and might need to find and mandate an attorney. If the economic operator fails to meet the deadline, the enforcement authority would still balance the parties' interests, but the economic operator would lose the opportunity to participate in the FoIA proceeding. If the producer brings its arguments in time and the enforcement authority nonetheless intends to grant disclosure, the economic operator could ask for a mediation proceeding. If the mediation fails, however, and the enforcement authority decides to grant disclosure, the producer would need to appeal that decision over several instances.
In light of the above, it is unfortunately likely that economic operators (in particular producers) will take a more cautious approach in sharing information with the authorities. They might take the view that the commercial risks emanating from the disclosure of such information in an FoIA proceeding (ie, the uncontrollable spread of the disclosed information in media and the potential damage to reputation and turnover) outweigh the legal risks of violating their duty for collaboration with the enforcement authority. Thus, in light of the Federal Supreme Court's recent decision, it must be feared that the overall compliance of economic operators (in particular, producers) will suffer, and that this again will lead to poorer protection of the Swiss public against dangerous consumer products.
Trends and Development


ONEOK Field has partnered with SMG Tulsa, the management company of BOK Center, to bring a one-of-a-kind event to Downtown Tulsa this fall. On Monday, September 17, ONEOK Field will host 12-time GRAMMY winning artist, Jack White, for an exclusive outdoor concert, presented by Praire Artisan Ales. It will be the first rock concert ever at the venue.
One special thing to note about this event is that Jack White has designated it a "no cellphone tour." When fans arrive at the stadium they will be required to secure their electronic devices in a special "Yondr" bag in their pockets or purses. The bag locks automatically and can only be opened during the show by exiting the stadium bowl and walking to a special zone on the concourse. Jack White says he instituted this policy in the "hopes of cultivating a 100% human experience centered on music" at his shows. This new technology has been used nationwide during several tours over the past three years.


Looking out over the Olympic Peninsula.
I have lived in Oregon for 28 of my 37 years. When I was a child, my family took us on trips all over the Pacific Northwest—to watch sheep being born at Oregon State University, to see the ash and sediment left behind by Mt. St. Helens, to visit the Maryhill Museum's Stonehenge memorial. We wandered through Shaniko and visited family in Yakima and rode the alpine slides at Mt. Hood.
But somehow, in all that time, I never made it to the Olympic Peninsula until this spring. This was a tragic oversight, because the Olympic Peninsula combines all of the Pacific Northwest's greatest gifts—seafood, forests, rippling water and a heaping dose of quaint charm.
First, the facts. The Olympic Peninsula is huge and virtually every inch of it beautiful and interesting. The center of the peninsula is dominated by Olympic National Park and surrounding national forestland. You can spend three days or three weeks and still have dozens more spots to explore.
Cutting over from I-5 near Olympia, one mandatory stop on the way up Highway 101 on the eastern side of the peninsula should be Hama Hama Oyster Co. The rustic seafood spot on the shores of Hood Canal serves up grilled oysters, local beer and other delicacies. Nearby are two of the area's twenty-two waterfalls, many of which are easily accessible from roads.
If the goal is a quiet, romantic weekend, the Inn at Port Ludlow has you covered. The property, tucked away on a quiet marina, has water views, a rocky beach to stretch your legs and fine dining in The Fireside, its on-site restaurant. Pick from locally caught seafood—the scallops are divine—to pair with a glass of Washington wine while resting in front of a double-sided floor-to-ceiling fireplace. And if you're traveling with a four-legged friend, know the pup will be well cared for with chef-made treats and pet-friendly rooms.
Near Port Ludlow are several farms available for tours, including the Finnriver Farm & Cidery, which makes fruit wines and hard ciders. The property is open daily for cider tastings and offers music and other specials, like crepes, on the weekends.
Less than 20 miles up the road lies Port Townsend, one of the most adorable small towns in America—the whole city is a National Historic Landmark built on a Victorian seaport. Farther west lies Port Angeles, the largest city on the peninsula. It's the spot to catch the ferry to Victoria, BC, but it's much more than that—check out the hip Next Door Gastropub for a beer and a burger, Turnip the Beet for some veggie options, or Coyote for barbeque. The city's farmers market is small but mighty, and its downtown is filled with locally owned shops, including two great bookstores—Port Book and News and Odyssey Books & Gifts. Squeeze in a quick trip through the Webster's Woods Art Park, an outdoor art installation that will have you craning your neck in all directions to find the art hidden among the trees.
If you're a fan of the Twilight books or movie series, a must-see on your tour through the peninsula is Forks and nearby La Push. The setting for the travails of Bella, Edward and Jacob, Forks in particular has capitalized on this craze, and beginning in May, the Rainforest Arts Center opened a permanent collection of props, costumes and other pieces. You'll know you've reached the Center and its display, called Forever Twilight in Forks, when you hit the town's only stoplight. Over in La Push, Jacob's neck of the woods, are some truly spectacular beaches. Huge downed trees lay strewn in the sand, while rock formations jut out of the water. If you can get a day without fog, hightail it that direction.
It's easy to visit the peninsula and not find time to venture into the national park, but that would be a huge mistake. There are no roads crossing the park—this wilderness is a United Nations-designated World Heritage Site and an International Biosphere Reserve, and it is a great spot for a backpacking trip, camping and long hikes. The variety of ecosystems in this park can be shocking—travel from a rain forest to some of the 70 miles of wild coastline to snow-topped mountains.
If driving, there are plenty of places to get a taste of the wilderness. Hurricane Ridge offers stunning views of the mountain range and is only about 17 miles south of Port Angeles. The Hoh Rain Forest, where between 12 and 14 feet of rain fall each year, is one of those places that makes you search for more words to describe the shades of green you'll see. Several hikable trails start from the forest's visitor center—the Hall of Mosses is a 0.8-mile loop that provides visitors with a glimpse of the many ferns, mosses and tall trees that cover this area.
A rustic but beautiful spot to rest your head in the park is Sol Duc Hot Springs Resort. With thirty-two cabins and a large campground, it's easy to settle in for a relaxing stay—no internet or electronics are available. What is available, however, are a freshwater pool and three mineral hot springs of varying temperatures. That aggressive sulfur smell signifies health to a lot of visitors—the hottest of the pools hovers around 104 degrees.
Nearby are hiking trails that lead around the national parkland, including to Sol Duc Falls. About 5 miles down the road from the resort is a viewing area where Coho salmon, migrating to spawn, jump a small cascade.
The park and surrounding national forest contain five lodges and resorts as well as hundreds of campsites, primarily available on a first-come, first-served basis.
Should "rustic" not be your thing, check out Lake Quinault Lodge. The lodge, built in 1926, is stunning—the grounds are even more splendid. A large lawn with a smattering of Adirondack chairs slopes down to the lake, where you can rent kayaks or swim off the dock in the summer. It's the perfect spot to watch the sunset, cocktail optional.


With decades of models to offer and a multitude of awards over its long history, the Honda Accord line delivers renowned reliability and family-friendly features. Used Honda Accord models continue to be one of the most sought-after throughout Folsom, Gold River, Rancho Cordova, and elsewhere, which is one of the reasons why we have them in stock at Mercedes-Benz of El Dorado Hills.
In the words of KBB.com: "For nearly four decades the Accord has been a staple for the automaker and a standout among rivals"*. The line unites simple operation with accommodating interior dimensions and styling, plus a dependably strong range of first-class features. Its enduring appeal is one reason we like to offer used Honda Accord models for our customers, and you can be sure that each one will have been inspected meticulously by trained Mercedes-Benz technicians to ensure adherence to our own high standards.


Minister for Health and Medical Education Bali Bhagat today said that the Planning, Development and Monitoring (PD&M) Department would release Rs 6 crore for strengthening and augmentation of two existing food testing laboratories at Srinagar and Jammu.
Rs 1.75 crore for purchase of 5 mobile food testing vans.
The Minister also informed the House that Rs 56.91 lakh was imposed as fine regarding food adulteration during the last year.He said the department of CA&PD conducted 25062 inspections during the year 2015-16 and 2866 samples were lifted for analysis out of which 419 samples were found adulterated and 282 samples were found misbranded. He said 729 prosecutions were filed during the year and 602 cases were decided by adjudicating officers. Mr. Bhagat said a week long special drive regarding milk and milk products was also conducted in April 2016 and 13472 Liters of milk and milk products were destroyed on spot while 419 samples were lifted for analysis. He said 127 samples were analyzed out of which 41 samples were found substandard while 2 samples were misbranded.


I am a Lecturer in Philosophy at the University of Birmingham. I completed my Ph.D. philosophy at the University of Michigan. I am interested in all things modal, conditional, context-sensitive, projective, and expressive.
Much of my research has been on the meaning of normative uses of language and how incorporating insights from philosophy of language and linguistics can shed light on broader philosophical debates. My paper "Normative Language in Context" (awarded the Marc Sanders Prize in Metaethics) applies this project to the case of normative language and metaethical debates about moral disagreement, judgment, and truth. My 2016 book, Discourse Contextualism (OUP), extends the account to a range of expressions that have figured in contextualism/relativism debates.
I am currently working on a systematic compositional semantic framework for diverse linguistic shifting phenomena, such as with quantifiers, attitude ascriptions, relative clauses, questions, and conditionals. Other projects include work on adjectives, questions, mood, Nietzsche, and vagueness (see below).
I recently finished a 2.5-year AHRC Research Grant with Daniel Rothschild (UCL) on Context-Sensitivity in Natural Language. In 2019–20 I will be taking up a Leverhulme Research Fellowship.
You can email me at a.silk@bham.ac.uk.
•Discourse Contextualism: A Framework for Contextualist Semantics and Pragmatics. 2016. Oxford University Press UK.
•"Expectation Biases and Context Management with Negative Polar Questions": Forthcoming. Journal of Philosophical Logic.
•"Normativity in Language and Law": 2019. In D. Plunkett, S. Shapiro, & K. Toh (Eds.), Dimensions of Normativity: New Essays on Metaethics and Jurisprudence, pp. 287–313.
•"Theories of Vagueness and Theories of Law." 2019. Legal Theory.
•"Commitment and States of Mind with Mood and Modality." 2018. Natural Language Semantics 26(2): 125–166.
•"Nietzsche and Contemporary Metaethics." 2018. In P. Katsafanas (Ed.), Routledge Philosophy Minds: Nietzsche.
•"Normative Language in Context." 2017. In R. Shafer-Landau (Ed.), Oxford Studies in Metaethics, Vol. 12. Winner of the 2015 Sanders Prize in Metaethics.
•"How to Embed an Epistemic Modal: Attitude Problems and Other Defects of Character." 2017. Philosophical Studies 174: 1773–1799.
•"Modality, Weights, and Inconsistent Premise Sets." 2017. Journal of Semantics 34: 683–707.
•"Contextualism in Metaethics." 2017. In T. McPherson & D. Plunkett (Eds.), Routledge Handbook of Metaethics.
•"The Progressive and Verbs of Creation." 2016. Journal of Semantics 33(1): 19–48.
•"Update Semantics for Weak Necessity Modals." 2016. In O. Roy, A. Tamminga, M. Willer (Eds.), Deontic Logic and Normative Systems (DEON 2016), pp. 237–255. College Publications.
•"How to Be an Ethical Expressivist." 2015. Philosophy and Phenomenological Research 91(1): 47–81.
•"Nietzschean Constructivism." 2015. Inquiry, Special Issue: Nietzsche's Moral Psychology, 58(3): 244-280.
•"What Normative Terms Mean and Why It Matters for Ethical Theory." 2015. In M. Timmons (Ed.), Oxford Studies in Normative Ethics, Vol. 5, pp. 296–325. Oxford University Press.
•"Accommodation and Negotiation with Context-Sensitive Expressions." 2014. Thought 3(2): 115-123.
•"Evidence-Sensitivity in Weak Necessity Deontic Modals." 2014. Journal of Philosophical Logic 43(4): 691-723.
•"Why 'Ought' Detaches." 2014. Philosophers' Imprint 14(7): 1-16.
•"Wither Anankastics?" (with Billy Dunaway). 2014. Philosophical Perspectives 28: Ethics, 75-94.
•"Truth-Conditions and the Meanings of Ethical Terms." 2013. In R. Shafer-Landau (Ed.), Oxford Studies in Metaethics, Vol. 8.
•"Deontic Conditionals: Weak and Strong." In Proceedings of the 19th International Congress of Linguists, 2013.
1. Review of R. Shafer-Landau (Ed.), Oxford Studies in Metaethics, Vol. 6. Ethics 122(3): 622–627.
2. Review of P. Katsafanas, Agency and the Foundations of Ethics. Notre Dame Philosophical Reviews.
3. Critical Notice of G. Fletcher & M. Ridge (Eds.), Having it Both Ways: Hybrid Theories and Modern Metaethics. Analysis.


text:
Q: "Descending it" or "descending from it"? Example:

This explains my terror of losing him back at the cliff, and why I
  risked my life descending (from) it.

Do I need to add from? Why and why not?

A: If you say "I risked my life descending from it", you're implying that you descended the cliff until you reached the ground. Because if I go from somewhere, it's implied that I arrive at somewhere. If instead you say "I risked my life descending it", you're not hinting that you reached the bottom. Maybe you did, but maybe you changed your mind and went back up.

A: As an AmE speaker, descending it sounds fine when referring to coming down from a cliff, and adding from seems unnecessary.

redpajama_set_name: RedPajamaStackExchange


Donwood's Acacia Unit caters for Memory Support (dementia specific) residents and offers 30 beds within a secure unit.
Private rooms with ensuites allow residents to live independently, while the centrally located dining room encourages socialising. A thoughtfully planned activity program runs seven days a week, offering both day and evening activities, to stimulate the mind and body and the leafy front and back gardens allow residents to enjoy the fresh air.
Services including hairdressing, podiatry, physiotherapy and other allied health services are regularly offered, while a registered nurse is on duty 24 hours a day.


When the Cold War order broke down, and Iraq invaded Kuwait, Brent Scowcroft served as an 'honest broker' among factions, though his own cautious realism often won the day.
Strategy is where vision and action come together. In the realm of foreign policy, a good strategy demands clear thinking about long-term goals and objectives—about what a country ultimately seeks to achieve in the world. Yet it also requires an ability to translate that vision into the concrete, day-to-day initiatives that move the ship of state progressively closer to its destination. Strategy is therefore about implementation no less than conception. It is operational as well as aspirational.
As Bartholomew Sparrow, a professor at the University of Texas, notes in his excellent authorized biography "The Strategist," Brent Scowcroft has never been viewed as a grand visionary in the mold of Henry Kissinger , Dean Acheson or George Kennan. He has certainly never attained their level of celebrity (or notoriety) with the general public.
Yet Mr. Scowcroft has been among the most important and talented American strategists of the postwar period. Few American officials have done the operational part of strategy as well, over as long a period of time. His service at the highest levels of government began in the early 1970s, amid the Cold War and superpower détente, and ended in the early 1990s, at the dawn of the post-Cold War era. He was national security adviser—in essence, the nation's chief strategic officer—under both Gerald Ford and George H.W. Bush and served as an influential aide or consultant to several other presidents. Throughout his long career, Mr. Scowcroft won respect on both sides of the aisle, not just for his ability to think strategically about American power but even more for his ability to turn ideas into workable policies and to get those policies implemented successfully.
Drawing on interviews with the subject and his contemporaries, as well as archival materials, Mr. Sparrow presents a textured portrait of Mr. Scowcroft in his myriad roles: fast-rising Air Force officer stationed everywhere from the Pentagon to Tito's Yugoslavia; military assistant to the president and deputy national security adviser under Nixon; national security adviser to Ford during the tumultuous post-Vietnam and post-Watergate years; key player in presidential commissions on strategic nuclear forces and the Iran-Contra scandal under Reagan; national security adviser once again during theBush years; and finally elder statesman—and constructive critic of U.S. policy. The book also interweaves descriptions of the key events, contexts and institutions that shaped Mr. Scowcroft's career, from the trajectory of U.S. foreign policy during the Cold War to the rise of the National Security Council as the dominant forum for foreign-policy decision making.
Mr. Sparrow's biography, however, focuses on the watershed years of the first Bush presidency, when Mr. Scowcroft's contributions to policy were most crucial and his influence was greatest, thanks to his warm and productive relationship with Mr. Bush. "No one, with the exception of Barbara [Bush], had better access to the president—and Bush probably spent more time with Scowcroft," Mr. Sparrow writes. The two men had worked closely together when Mr. Bush was CIA director and Mr. Scowcroft was national security adviser under Ford. Between 1989 and 1993, they formed a strong partnership during a period when strategic thought and action were at a premium, because the world was undergoing profound changes that destroyed the Cold War order and presented the administration with both alluring opportunities and considerable dangers.
Mr. Scowcroft played a leading role during a series of crises that followed hard upon one another: the Tiananmen Square massacre; the fall of the Berlin Wall and the reunification of Germany; the Iraqi invasion of Kuwait and the subsequent Persian Gulf War; the collapse of the Soviet Union. He provided a guiding and steadying influence on U.S. policy in many of these cases, working with Mr. Bush to control instability, to strengthen America's geopolitical position and to shepherd a generally successful transition from the Cold War to a new era. Historians are increasingly coming to see the Bush years as a time of highly competent management of global change.
Mr. Scowcroft possessed two notable attributes, which Mr. Sparrow emphasizes. The first was his mastery of the day-to-day process of formulating strategy. During the 1970s, Mr. Scowcroft cleaned up the institutional wreckage left by his mentor Mr. Kissinger's brilliant but personalized leadership of the National Security Council; he delegated authority more effectively and restored a degree of collegiality to the interagency process. Mr. Sparrow reports that Mr. Kissinger had even barred some NSC aides from dining at the White House Mess, in order to limit fraternization.
During the late 1980s, Mr. Scowcroft had studied the bureaucratic failures that enabled the disastrous Iran-Contra scandal. In the Bush years, he drew on these experiences to establish a decision-making system that featured inclusive and transparent consultation, sharp discouragement of leaking and other bureaucratic intrigues, and a strong role for Mr. Scowcroft himself as presidential adviser but also as an "honest broker" between other contending views. Aided by Mr. Scowcroft's smooth manner—"abrasive as a silk scarf," in the words of a Bush staffer interviewed by Mr. Sparrow—this "Scowcroft system" generally ensured robust, genuine debate while minimizing infighting and encouraging faithful implementation of decisions. More often than not, it thereby enabled the Bush administration to turn good instincts into good policy, and Mr. Scowcroft's tenure remains the gold standard for management of the national security apparatus even today.
Mr. Scowcroft's second essential attribute was his ability to balance the need to use power assertively, on the one hand, and to temper that assertiveness with prudence, on the other. He was hardly averse to acting boldly when opportunity beckoned or when vital interests were at stake. During the Gulf crisis, for instance, he arguably did more than any other individual to catalyze a decisive U.S. military response to Saddam Hussein's invasion of Kuwait. Yet Mr. Scowcroft grasped that some ugly realities simply were not amenable to near-term American solutions. He thus counseled against pushing on to Baghdad after U.S. forces had liberated Kuwait in February 1991—just as, two years earlier, he had helped Mr. Bush resist calls to derail the entire relationship with China after Tiananmen Square. Both of these policies were heavily criticized at the time and after, but both were reasonable and probably better than the alternatives. Ambition had to be tempered with realism and restraint; this belief made Mr. Scowcroft a good match for Mr. Bush, who shared similar views.
To be sure, Mr. Scowcroft's record was hardly spotless, and Mr. Sparrow catalogs his failures and blind spots as well as his successes. The decision not to oust Saddam in 1991 was probably the right one, but Mr. Scowcroft's NSC failed to plan for the litany of problems that leaving Saddam atop the Iraqi regime would present. (Over a decade later, Mr. Scowcroft would earn the enmity of many officials in the George W. Bush administration for warning, in a 2002 op-ed for the Journal, that seeking to topple the Iraqi dictator might disrupt the post-9/11 war on terror.) Mr. Scowcroft disregarded CIA warnings in 1990-91 that Yugoslavia might soon explode into civil war, a failure that probably lessened the already slim chances of averting war. Nor did he push the administration to do anything meaningful to address the growing instability and extremism in Afghanistan following the Soviet withdrawal in late 1988, a missed opportunity that would later take on tragic proportions. Mr. Scowcroft, then, was not a strategic virtuoso. As Mr. Sparrow recognizes, he was a talented and accomplished strategist who got numerous things wrong even as he helped the Bush administration get most of the biggest things right.
For the most part, Mr. Sparrow's book is a top-notch guide to understanding and appreciating its subject's role in American strategy. The author conveys Mr. Scowcroft's importance without unduly inflating it. He blends the personal and professional aspects of Mr. Scowcroft's life, describing, for instance, the strains imposed by his wife's chronic ill health. Mr. Sparrow also shows how the very qualities that led so many people initially to underestimate Mr. Scowcroft—his willingness to work behind the scenes and leave the credit and publicity to others—were integral to his success in the policy realm.
"The Strategist" does have limitations, however. The treatment of German reunification is surprisingly brief, given how utterly it transformed the geopolitical environment in Europe and beyond, and how quickly the Bush administration moved to support an initiative that engendered wariness or outright hostility from so many other nations. In a book about strategy, Mr. Sparrow might also have done more to discuss the George H.W. Bush administration's efforts to articulate a post-Cold War global strategy for America. He does include a concise discussion of the ill-fated "New World Order" put forward by Messrs. Bush and Scowcroft during the Gulf crisis (and then promptly abandoned). But he does not go into any depth on the more formalized post-Cold War planning processes, particularly the drafting of three separate National Security Strategy reports, that Mr. Scowcroft and his staff oversaw. These reports actually outlined many of the key premises of U.S. strategy in the post-Cold War era, even though they were little noticed at the time or after.
Finally, because the declassification of Bush-era documents is far from complete, it seems likely that our understanding of Mr. Scowcroft and his contributions will evolve over time. Yet Mr. Sparrow has given us a very useful and informative account of a man who ranks as one of America's most underappreciated foreign-policy practitioners. It should be read by all those who aspire to shape American strategy today and into the future.
—Mr. Brands is an assistant professor of public policy and history at Duke University.


The Hill Times, the Ottawa based newspaper that covers all things politics, has published its annual Aerospace Briefing, along with a full page ad from the Don't Let Go Canada Coalition.
The full page ad is on page 3 of today's print edition. The ad, an open letter, is addressed to the Prime Minister, along with the Minister of Finance Bill Morneau and ISED Minister Navdeep Bains. It is signed by AIAC President and CEO Jim Quick, Unifor National President Jerry Dias, CATA Alliance President and CEO John Reid, Engineers Canada President Annette Bergeron, Western University President Amit Chakma, and SEDS-Canada President Roxy Fournier. You can read the letter below or download it here.
The letter opens by saying "Canada's current leadership role in the global space sector and our potential involvement in the exciting new space economy – which is today worth over $500 billion and is growing fast – are at risk" and goes on from there.
The letter is just another in a series of measures the Coalition is taking to get their message across to decision makers. The public has also been seeing messages on buses in Ottawa and in movie theatres during the screening of First Man in select cities.
The full page ad was timed to be coincide with the annual Aerospace Briefing published by the Hill Times.
That section of today's paper is available as a free download (PDF) from the Hill Times website.
Unlike many previous Aerospace Briefings in the paper, this one covers the space sector almost exclusively, there's little aeronautics coverage.
The Briefing includes eight articles and two opinions. The opinions are from ISED Parliamentary Secretary David Lametti and Paul Meyer, a former Canadian diplomat, and founding member of the new Outer Space Institute at UBC. Meyer is also affiliated with the Simons Foundation and Simon Fraser University.
While the inclusion of an opinion piece by Lametti is welcome, it was, as you might expect, the usual message from someone in government today. In other words, rote, nothing new.
There's also a Q&A with Minister Bains, unfortunately there was nothing new in his responses.
The Aerospace Briefing will primarily benefit those not involved in the space sector or regularly informed of what's happening. Which is in part, the point.


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The key over-arching strategic objective for MCSHE 2017-2021 will be to increase its visibility and reputation locally, nationally and internationally. Furthermore, we have another 21 strategic objectives linked to different elements of scholarship: that is, scholarship of discovery, scholarship of integration, scholarship of application, and scholarship of teaching.
Our vision is to create an internationally recognised world-class Centre of excellence in the scholarship of health education to improve health education locally, nationally and internationally. By the end of 2021, MCSHE hopes to be the leading centre for scholarship in health education in the Asia-Pacific region, plus one of the top five centres worldwide.
The staff at MCSHE are the key to achieving our vision and mission and upholding our values. MCSHE presents a hub-and-spokes centre model for health professions education scholarship. Our core team are located centrally within the largest faculty at Monash: the Faculty of Medicine, Nursing and Health Sciences (FMNHS). We have affiliate members from across the many and diverse schools and departments of FMNHS, as well as membership from the Faculty of Pharmacy and Pharmaceutical Sciences. Affiliates represent MCSHE at their respective schools and departments and represent their schools and departments within MCSHE, making us uniquely and maximally interprofessional. For more details click here.


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Políchni () est une ancienne municipalité grecque du district régional de Thessalonique. En 2001, elle avait  habitants, et  en 2011.

Notes et références

Liens externes

Ville en Macédoine-Centrale

redpajama_set_name: RedPajamaWikipedia


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Ofsted annual report warns apprenticeship levy being spent on graduate scheme rebadging
Amanda Spielman has amplified Ofsted's concern that too much apprenticeship levy funding is being spent on higher levels, which is squeezing out the recruitment of young people onto lower level programmes.
The chief inspector (pictured) raised the issue in her second annual report, published this morning.
"We are concerned that in many cases, levy money is not being spent in the intended way," she wrote.
This might meet the rules of the levy policy, but it falls well short of its spirit
"We have seen examples where existing graduate schemes are in essence being rebadged as apprenticeships. This might meet the rules of the levy policy, but it falls well short of its spirit.
"We hope the government will give greater thought as to how levy money can be better directed at addressing skills shortages."
It follows yesterday's FE Week exclusive which revealed the Institute for Apprenticeships is expecting an imminent levy over-spend, understood to be the result of higher per-start funding than first predicted, largely driven by the sharp rise in management apprenticeships with high prices.
Ms Spielman said today that along with the "sudden expansion in the number of providers offering apprenticeships", the inspectorates "continues to be concerned about access to apprenticeships for the third of students who leave school without a full level 2".
The number of under 19s starting an apprenticeship has been in decline for the last two years, falling from 78,500 last year to 62,000 this year alone.
"In contrast, the number of learners starting a higher apprenticeship has been growing year-on-year since 2011/12, increasing by around 10,000 apprentices a year for the past four years," the chief inspector said.
She added that while Ofsted does "welcome" more apprenticeships at higher levels, "particularly when there is clear progression in an occupation from level 2 to degree level", it will not address skills shortages in England if they are done at the expense of getting young people onto the programmes.
https://feweek.co.uk/wp-content/uploads/2018/12/WhatsApp-Video-2018-12-04-at-10.29.36.mp4
Ms Spielman's fresh criticism follows her annual report from last year which first raised the issue.
"Most apprenticeships being delivered in 2016/17 were at levels 2 and 3, yet over a third of the standards ready for delivery were at level 4 and above," it said.
"If this trend continues, there will not be enough approved standards at levels 2 and 3. This could have a detrimental impact on the recruitment of 16- to 18-year-olds into apprenticeships."
FE Week was first to warn of the 'unstoppable rise' of management apprenticeships in 2016, and last month reported that just 10 management standards were responsible for a fifth of all apprenticeship starts on standards, according to provisional data for 2017/18.
The proportion has grown over the years, from nine per cent in 2015/16 and 15 per cent in 2016/17.
It looks like as a result, the apprenticeships budget for England is set to be overspent by £0.5 billion this year, rising to £1.5 billion during 2021/22, according to figures from the IfA.
https://feweek.co.uk/wp-content/uploads/2018/12/David-Hughes-Ofsted-annual-report.mp4
Speaking to FE Week at this morning's annual report launch, the chief executive of the Association of Colleges, echoed Ms Spielman's concerns.
"There's some really interesting stuff about apprenticeships and how the levy seems to be being used a lot for people who are already in work, in management positions, for higher level and degree apprenticeships," he said.
"I'm really worried about that – as Ofsted is – because we really must make sure apprenticeships are particularly for young people entering the labour market.
"That's what the spirit is all about, rather than giving people who are already privileged in the system more skills that probably would have been funded differently by employers in the past."
And Mark Dawe, chief executive of the Association of Employment and Learning Providers, said he's a "big supporter" of apprenticeships at all levels but "the level 2 and 3s are the most important and that is where government money should be focused".
https://feweek.co.uk/wp-content/uploads/2018/12/WhatsApp-Video-2018-12-04-at-09.57.552.mp4
FE Week asked the Department for Education if it shared the same concerns as the chief inspector, Mr Dawe and Mr Hughes, but it would not comment directly on this.
Instead, a spokesperson said: "Our apprenticeship reforms, the largest government has ever made, have put control back into the hands of employers so they will gain the skilled workforce they need to compete globally.
"By working with employers to develop new, higher quality standards we can ensure that young people are getting the training they need to get a great job while businesses can be confident they are getting the skilled employees they want."
Ofsted annual report 2017/18: Nine key findings for FE
Murray Cowell
Why is it presumed to be a bad thing for companies to rebrand their often crappy graduate onboarding into a formal qualification? The point of the apprenticeship programme is to raise the standards of training across the UK. Turning an in-house graduate scheme which is being run to no particular standard into a proper training programme to nationally recognised standards achieves that aim magnificently.
Responses to Murray Cowell

redpajama_set_name: RedPajamaCommonCrawl


The majority (56 percent) of small business owners (those with less than 50 employees) incorrectly believe that the Patient Protection and Affordable Care Act (ACA) requires them to provide health insurance for employees in 2014, or that they will be taxed if they do not offer health insurance, according to recent research from private health insurance exchange provider eHealth, the parent company of eHealthInsurance. The Small Employer Health Insurance Survey noted that this percentage is down from 69 percent in August 2012. Beginning in January 2014, the ACA requires businesses with 50 or more full-time employees to offer their employees health insurance or pay additional taxes. However, the ACA does not require this of businesses with fewer than 50 workers.
Exchanges. eHealth found that only 18 percent of small employers believe that they can confidently define or explain what a health insurance exchange is. In addition, 62 percent said that they do not understand exchanges at all, while 20 percent said they have only a vague understanding of the role exchanges are expected to play. Under the ACA, health insurance exchanges will make subsidized health insurance available for lower income people who do not get health insurance from their employer, starting in 2014. The ACA also created Small Business Health Options Program (SHOP) Exchanges to help small businesses provide coverage.
The survey found that the overwhelming majority of small business owners do not want to be forced to buy health insurance through any single source, whether through a government exchange or through a private marketplace/exchange. Seventy-one percent said they want the option to buy their health insurance coverage from the source of their choice. Only 24 percent said they would prefer to work exclusively with a private company to find health insurance, and 5 percent said they would prefer to work exclusively with a government exchange.
Offering employer-based coverage. Employers offer health insurance to employees because they feel morally obligated to do so, the survey found. Forty-four percent cite this moral obligation as the number one reason they offer health insurance to employees. Another reason that small employers offer coverage is to attract and retain talented workers (31 percent cited this as the number one reason). The survey found that 70 percent of small employers believe it is at least possible their employees would look for work elsewhere if they stopped providing health insurance.
According to eHealth, 67 percent of small business owners said that they would not stop offering their employees health insurance even after the ACA reforms take effect. According to the survey, only 6 percent said they will definitely stop offering health insurance to employees, while another 27 percent said they may stop offering health insurance under certain circumstances. Ninety-one percent of the small employers who are considering dropping insurance for employees said that the cost of providing health insurance will impact their decision.
The survey contains responses from 259 employers with less than 50 employees. For more information, visit http://news.ehealthinsurance.com/_ir/68/20132/eHealth%20Spring%202013%20Small%20Bus%20Survey.pdf.