UK Government and product safety regulator opens consultation on the UK's long-term approach to product safety
Locations
Background to the Consultation
The Consultation recognises that both the way consumers buy products and the nature of the products themselves have undergone significant changes since the UK's current product safety legislation was put in place. For example, vastly more sales are now conducted online, there are many more direct-to-consumer sales via online marketplace platforms and consumer products also incorporating connected or artificial intelligence-type features are increasingly being placed on the market.
Each of these has the potential to impact either the safety of a product or the relevant regulators' ability to enforce legal requirements.
The Consultation also recognises that the current patchwork of laws can make it complex and costly for established businesses to get a product to market, let alone potential new entrants. It also notes that, where regulation is overly prescriptive, this can prevent businesses from trying new approaches.
Importantly, the Consultation identifies the increasing interaction between product safety concerns and environmental issues. This is a welcome development given that the changing climate poses obvious implications for product safety and how consumers use products.
Keeping pace with the EU
Much of the UK's key product safety legislation is EU-derived and the EU is also – independently of the UK's efforts – implementing reforms, most recently by the enactment of a new General Product Safety Regulation to replace, from December 2024, the current General Product Safety Directive (on which the UK's General Product Safety Regulations 2005 are based).
Many of the new developments discussed in the Consultation, along with the proposals as to how they could be dealt with, will be very familiar to those businesses which have been keeping abreast of EU developments. But it remains to be seen to what extent the UK reforms, once implemented, will actually follow the new key EU requirements.
The proposals
The Consultation seeks businesses and other interested parties on 13 core proposals or topics under three broad headings:
Bringing products to market
1. Whether products, and the rules to which they are subject, should be categorised by their hazards and consequent risks such that they can be placed in one of several defined risk levels (each of which would aim to require a set of consistent approaches across all product types).
As part of this, the Consultation raises the prospect of giving more weight to guidance to ensure that new developments can be more easily addressed without, for example, a change in the law being required. Guidance could also, the Consultation notes, be used to support businesses in undertaking proportionate pre-market risk assessments such that these would, over time, form part of the product development process and improve the quality, reliability, environmental impact and safety of consumer products.
2. The establishment of a derogation process, enabling businesses to apply for temporary regulatory easements to speed up supply of essential products in emergencies.
This is obviously influenced by the Covid-19 pandemic and the Consultation notes that, in an emergency situation, it could be appropriate to temporarily ease regulatory requirements, for example by allowing a product to be placed on the market even though a conformity assessment had not been completed provided that the authorities were satisfied that the product was still safe.
3. How to take advantage of digital labelling (so-called 'e-labelling').
The Consultation also contemplates the potential use of 'e-labelling' – noting that it is already being used on a voluntary basis by many businesses – whereby manufacturers could make certain marking and compliance information available digitally via a screen rather than physically accompanying or indelibly marked on a product. This would, however, be subject to several proposed exclusions:
- Limiting the proposal to devices with integrated screens or products designed for use with a screen.
- Not permitting a screen to only show a QR code or a link to a website: instead, information would be expected to be made available on the device itself.
- Not permitting high-risk products with a screen (for example, those with industrial uses) to be able to rely on e-labelling.
- Any information required by product safety legislation which is not a UKCA marking or manufacturer's details, for example a warning of a choking hazard for a toy, would still need to be provided physically with the product as an indelible marking or on paper, as required, even where the device has an e-label accessible on the device.
Online supply chains
4. That if a business conducts particular activities, they are an ‘online marketplace’ and will be subject to specific new duties (such activities could include providing an online platform which connects traders with buyers and enables sellers to list products for sale).
Under the proposal, online marketplaces would have duties to cooperate with enforcement authorities to provide information and take appropriate actions if products are unsafe or non-compliant. An additional duty could be that marketplaces must have a compliance function established in the UK which is responsible for ensuring appropriate policies, processes and systems are in place to address the availability of unsafe products.
The Consultation also notes that consideration will be given to whether any new cooperation duties should apply to other participants in online supply chains (such as fulfilment services).
5. The imposition of 'duty of care' requirements in relation to unsafe product listings under which 'online marketplaces' would be required to assess if they are meeting certain requirements by identifying any specific risks, developing systems and processes proportionate to their business and risk levels, and publicly and/or privately reporting on their performance.
Specific duties could include:
- Collecting (and taking reasonable steps to verify) information about third-party sellers for high-risk products.
- Consulting sources such as the UK Government Product Recalls and Alerts page, monitoring marketplaces for products which reasonably look to be an identical or very similar product and taking appropriate action.
- Gathering information about products and sellers which could indicate a product is unsafe (for example, analysing customer reviews or product return data) and using this alongside information from enforcement authorities to regularly assess which products warrant greater due diligence.
- Carrying out targeted monitoring and scrutiny of relevant product listings with a view to addressing listings which reasonably look like they could be advertising non-compliant or unsafe products.
The Consultation notes that, given the international nature of online sales, enforcement of any such duties would best sit with a national enforcement authority (such as the OPSS) and that, in terms of enforcement, access to relevant websites could be blocked or restricted.
6. Increasing consumer-facing information (such as warnings, details of the seller and what checks have been undertaken and key product particulars) on online product listings to support informed purchasing decisions.
Compliance and enforcement
7. Enhancing the role of the OPSS, for example by giving it the power to issue binding legal guidance to other bodies with a regulatory responsibility for product safety (such as local authorities and their Trading Standards teams) and the ability to delegate its enforcement activities (for example, to operatives at ports).
8. The creation of a new data sharing mechanism for relevant regulatory authorities (to include information such manufacturer details, as well as data on incidents, investigations and test reports).
9. That all notifications of recalls and serious product safety incidents and other corrective action by a manufacturer or distributor be sent to OPSS, rather than to Trading Standards), as soon as the economic operator has knowledge of an unsafe product.
10. The consolidation and alignment of enforcement legislation to include creating a single set of notices and offences covering all products (with the aim of equalising powers where they are seen to be deficient and allowing compliance, withdrawal and recall notices to be issued for all relevant products).
11. Introducing improvement notices, civil monetary penalties, and enforcement undertakings.
12. Explore options for amending inspection powers for businesses which operate from homes.
The Consultation notes that current definitions, such as ‘product’ and ‘defect’, may no longer be adequate and, as products become more sophisticated and are driven by complex software, liability may not always be clear. The Consultation identifies this as a particular concern in relation to products incorporating AI-type features, some of which could result in a product – and therefore potentially its safety characteristics – changing over time.
The Consultation is open from 2 August 2023 to the 24 October 2023. Interested parties can submit their views on the proposals here.
If you would like to discuss this topic with a Fieldfisher lawyer, please contact Aonghus Heatley, a Director in the firm's London office. Aonghus regularly advises businesses on UK regulatory requirements in the chemicals, consumer, life science, technology, and environmental industries including in relation to product safety matters.