There have been reports that the 3D effect on Nintendo’s new flagship console, the 3DS, may make certain users feel sick. Nintendo are aware of this possibility, and prudently advise users to take a break after 30 minutes of gaming. The 3D can also be turned off. But we know it can be difficult for companies to regulate how their consumer products are used.

Not all retailers are offering a full refund to users who return the console for this reason. The stores are taking the line that as the individual units are not “faulty,” the goods are fit for purpose and so comply with the Sales of Goods Act 1979.

If a product is not “safe” for its foreseeable use, then we think it cannot be “fit for purpose” – but whether this applies to the 3DS will only be answered if the issue is litigated, by a consumer or by Trading Standards.

Even if the stores are right, this negative PR will undoubtedly harm the product’s sales.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com