Consumer Protection Act 1987: The effect of Brexit
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Legal Development 14 June 2021 14 June 2021
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UK & Europe
The Consumer Protection Act 1987 (“CPA”) is legislation which aims to protect consumers. It provides a straightforward route to the recovery of damages in claims for death or personal injury to any person, or damage to property which is intended mainly for private use. In certain circumstances it also protects product users in a commercial setting.
Section 2(2) CPA imposes strict liability on prescribed classes of defendant, namely:
- The producer of the product (usually the manufacturer).
- Any "own-brander" (a person who holds itself out as the producer by placing its name or trademark on the product).
- Any importer into the EU* for sale, hire, leasing or any form of distribution in the course of business. (*As originally drafted).
What has changed following Brexit?
When the UK ceased to be a member state of the EU the wording of the CPA as originally drafted created a loophole; that an importer of, for example, a tumble dryer from China, that later turned out to be defective would face no liability when bringing the product into the UK because they were no longer an importer into the EU.
From 11pm on 31 December 2020, the CPA was amended so that it applies to any importer into the UK for sale, hire, leasing or any form of distribution in the course of business (rather than the EU).
Pratical application of the changes when dealing with property claims
It is important to note that the changes to the CPA as a result of Brexit only apply to importers into the UK: the liability imposed on producers and own-branders is unchanged.
The effects of Brexit on the CPA can be summarised in the table below. It is important to note that businesses frequently fall within more than one of the categories to which liability attaches and it is essential to check all that might apply.
| Before Brexit | Post Brexit (applies from 11pm on 31 December 2020) | |
|---|---|---|
| Manufacturer based in the UK | Liable under the CPA | Liable under the CPA |
| Manufacturer based in the EU | Liable under the CPA | Liable under the CPA but requires international enforcement |
| Manufacturer based outside of the EU | Liable under the CPA but requires international enforcement | Liable under the CPA but requires international enforcement |
| Importer into the UK from the within the EU | Not liable under the CPA unless it also manufactured/branded the product | Liable under the CPA |
| Importer into the EU | Liable under the CPA | Only liable if it alos manufactured/branded the product |
| Importer into the UK from outside of the EU | Liable under the CPA | Liable under the CPA |
| Distributor within the UK | Not liable under the CPA unless it also manufactured/branded/imported the product | Not liable under the CPA unless it also manufactured/branded/imported the product |
| Producer/own brander based in the UK | Liable under the CPA | Liable under the CPA |
| Producer/own branded based in the EU | Liable under the CPA | Liable under the CPA but requires international enforcement |
| Producer/own branded based outside of the EU | Liable under the CPA but requires international enforcement | Liable under the CPA but requires international enforcement |
This content was written by BLM prior to its merger with Clyde & Co.
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