Product Safety Law in the UK and Europe - A synopsis of the key changes

There are significant changes on the horizon in product liability and product safety law where legislation which is over 30 years old is being overhauled in Europe and the UK.

Executive Summary

In the Europe, the European Council published the General Product Safety Regulation (GPSR) which repeals the existing General Product Safety Directive. GPSR is a new key instrument in the EU product safety legal framework which took effect on 12 June 2023 with an 18-month transition period in place until the new regulations apply from 13 December 2024. It modernises the EU general product safety framework and address the new challenges posed to product safety as a consequence of the digitalisation of our economies. In other words, it is designed to address the dangers created by online sales and purchasing and ensures that market surveillance is strengthened to protect purchasers in both the online and offline world. Organisations therefore have 14 months to get ready for the changes.

The GPSR will have an impact for manufacturers, importers, distributors, online marketplaces, authorised representatives and retailers (together “economic operators) who deal in a traditional way or online if they sell products in Europe.

At the same time, the UK’s product safety laws – which are over 30 years old and based on the EU General Product Safety Directive – are currently set to be overhauled in a bid to make them fit for emerging technologies and new shopping habits but also to ensure that businesses are “not stifled by red tape” with the government consultation currently timetabled to release the results of their consultation on 24 October 2023. Whether the consultation recommendations will replicate any of the proposed changes in the GPSR is yet to be seen.

Headlines of the new GPSR

1. Reporting obligations

The Safety Business Gateway has replaced RAPEX. Under the new rules it will become mandatory for manufacturers to notify product recalls via the Safety Business Gateway.

In addition, Article 20 of the GPSR provides that any accident caused by a product placed or made available on the market must be notified through the Safety Business Gateway to the competent authorities of the Member State where the accident has occurred without undue delay from the moment the manufacturer knows about the accident.

The notification shall include the type and identification number of the product as well as the circumstances of the accident, if known. The manufacturer is also required, upon request, to provide the competent authorities with any other relevant information they may require.

2. Assessment of whether a product is safe

The safety of a product will need to be assessed taking into account all relevant aspects of the product, in particular its characteristics, such as the physical, mechanical and chemical characteristics, and its presentation, as well as the specific needs and risks which the product represents for certain categories of consumers who are likely to use the products, in particular children, older persons and persons with disabilities. Consideration will also need to be given to environmental risk insofar as it poses a risk to the health and safety of consumers. The health risk posed by digitally connected products, including the risk to mental health, especially of vulnerable consumers, in particular children will also need to be at the forefront of safety considerations. The safety of all products should be assessed taking into consideration the need for the product to be safe over its entire lifespan.

3. Making sure a product is safe - the alignment of Non CE Marked Products to CE Marked Products

The GPSR seeks to align non CE marked products with CE-marked products and it will be compulsory for economic operators to include in their production or marketing activities internal processes ensuring compliance. In addition, before placing their products on the market manufacturers will need to draw up technical documentation regarding the products they place on the market, which should contain the necessary information to prove that those products are safe. The technical documentation should be based on an internal risk analysis carried out by the manufacturer.. Where the product complies with European standards or other elements applied to meet the general safety requirement laid down in this Regulation, the list of the relevant European standards or the other elements should also be indicated.

When the manufacturer is based outside the EU, their authorised representative will be obliged, on request, to provide the market surveillance authority with all information and documentation necessary to demonstrate the safety of the product in an official language which can be understood by that authority.

4. Labelling

Information about the identification of the product and of economic operators, as well as instructions and safety information, can be provided in a digital form by means of electronic solutions, such as a QR or data matrix code, to supplement traditional labelling, information and physical markings. The GPSR does not permit digital labelling to replace more traditional methods, although it can be used to supplement it. There are also labelling requirements for importers.

5. New requirements for Product Recalls

The GPSR requires that there should be effective, speedy and accurate exchange of information concerning dangerous products to ensure that appropriate measures are taken in relation to those products to protect the health and safety of consumers.

Article 20 of the GPSR provides that any accident caused by a product placed or made available on the market is notified, through the Safety Business Gateway, without undue delay from the moment the manufacturer knows about the accident. This has changed from “two working days” in the original proposal from the Commission.

Article 36 of the GPSR requires that any recall notice should be clear, transparent and clearly describe the risk at stake, avoiding any terms, expressions or other elements that may decrease consumers’ perception of the risk.

In addition to recall notices, the GPSR permits economic operators to directly inform consumers of recalls and safety warnings linked to products they have purchased by using customer data readily available to them.

6. Representative actions

The GPSR specifically provides that consumers “should be entitled to enforce their rights in relation to the obligations imposed on economic operators or providers of online marketplaces through this Regulation through representative actions in accordance with Directive (EU) 2020/1828 of the European Parliament and of the Council.” In other words, class/group actions for breaches of the GPSR are permitted.

7. Penalties

Whilst early legislative proposals mooted maximum penalties of at least 4% of annual turnover of the breaching party, the GPSR provides that penalties for breach will be at the discretion of each member state. Article 44 of the GPSR provides that such penalties will need to be effective, proportionate and dissuasive.

The Position in the UK

The UK's consumer product safety regulatory regime is broadly derived from EU legislation via the General Product Safety Directive which is implemented in the UK through the General Product Safety Regulations 2005.

As result, from a UK perspective, since the GPSR will come into force well after Brexit, the GPSR will not apply to products placed on the UK market and the UK’s general product safety regulatory framework will remain based on the GPSD and subject to any further amendments that may be made in future.

Practically, this means that businesses supplying products on both the UK and EU markets would be required to comply with two different sets of requirements and, in their current form, the UK Regulations will not offer the same protection to customers as those prescribed by the EU via GPSR.

However, the UK is addressing this:

• On 16 June 2021, the National Audit Office published a Report examining the extent to which the UK’s product safety regime can protect consumers from harm and keep pace with changes in the wider environment and the work of the OPSS (Office for Product Safety and Standards launched in 2018). In that report, the NAO commented that the current product safety regime “…faces major challenges to keep pace with changes in the market…” and ”…until it establishes a clear vision and plan for how to overcome the challenges facing product safety regulation and the tools and data needed to facilitate this, it will not be able to ensure the regime is sustainable and effective at protecting consumers from harm…”
   
• On 2 August 2023, the UK Government issued a press release confirming that the UK’s product safety rules - which are over 30 years old - are set to be overhauled in a bid to make them fit for emerging technologies and new shopping habits. A consultation was opened to seek views on how the UK can better regulate innovative products like internet connected devices and AI whilst ensuring that businesses are “not stifled by red tape”.
   
• In addition to the product safety review, a consultation is also being launched on proposed fire safety rules for domestic upholstered furniture, aimed at improving standards for consumers.
   
• Both consultations are due to close on 24 October 2023.

A more detailed overview of the GPSR and the changes which are also underway can be seen in our detailed article which you can access here.

You can access our article on the liability regime and the changes which are also underway here.

In the event that support is required for businesses with internal documentation or any issues arising from product safety or product liability please do not hesitate to make contact with the authors: Peter Barnes and Charlotte Kelly.