The UK's Department for Business and Trade ("DBT") has recently announced that new legislation will be introduced to allow digital product labelling in the UK.
What is the government proposing?
While the DBT's announcement does not contain much information, digital labelling will, in the DBT's words, "allow businesses to put important regulatory or manufacturing information online rather than requiring them to physically print it on their products".
How will it work in practice?
Further detail as to how this could work in practice can potentially be found in the UK Product Safety Review, a 2023 public consultation on reforms and updates to the UK's product safety regime following the UK's departure from the European Union (and the subject of a previous Fieldfisher article available here).
In that consultation, the DBT and the Office for Product Safety and Standards ("OPSS", the UK's national product safety regulator) contemplated the use of 'e-labelling' – noting that it is already being used on a voluntary basis by many businesses – whereby manufacturers could make certain conformity marking (the UKCA / CE mark) and manufacturer's details available digitally via a screen rather than physically accompanying or indelibly marked on a product.
This was, however, 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; and
- any information required by product safety legislation which was not a conformity 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 product has an e-label accessible on it.
In addition, devices would need to be clearly marked as using e-labelling and would need to be accompanied by instructions on how to access compliance information within three navigational steps in the product's software menu.
The consultation also stated that DBT was keen to consider how it could go further, expanding e-labelling to include a broader range of information requirements such as user guidance and instructions, restrictions on who can use a product and conformity assessment technical details or certificates.
DBT's current announcement does appear to go beyond what was proposed in the 2023 consultation. For example, it states that digital labelling will allow businesses to put important regulatory or manufacturing information online (as opposed to, as contemplated by the consultation, information needing to be made available on the device's screen). This suggests that DBT is now considering permitting the use of QR or other data matrix frameworks.
How does it compare with developments in the EU?
In its announcement, the DBT was clearly keen to highlight digital labelling as a benefit of Brexit, stating that it is something that the UK can only do as a result of having left the EU. This is true: the UK legislation that will necessarily have to be amended to give effect to this proposal will be EU-derived and much of that underlying EU law does not, on its face, permit digital labelling. To take the Low Voltage Directive (Directive 2014/35/EU) as an example, Article 8(2) requires electrical equipment to 'bear' the CE marking and Article 6(6) requires a manufacturer's details of be 'indicated' on electrical equipment (with both articles using wording that would be difficult to reasonably interpret as permitting digital labelling).
That being said, as the EU is updating and expanding its product laws, it is allowing certain information to be made available digitally. Taking the new General Product Safety Regulation (Regulation 2023/988) as an example, while manufacturers are required to include certain information either on or with a product, Article 21 allows certain information to be additionally made available "in a digital format by means of electronic technical solutions clearly visible on a product or, where that is not possible, on its packaging or in a document accompanying the product".
Another example – albeit with a different aim, namely to provide information about a product's environmental sustainability characteristics – is the rolling out of digital product passports in the EU such as in the proposed Ecodesign for Sustainable Products Regulation.
If you have any questions about digital labelling please contact Aonghus Heatley, a Director and senior environmental and products lawyer in Fieldfisher's Competition, Regulatory and Trade group in London.
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