Government consultation on UK product safety regime

Background

The UK’s product safety framework has developed over decades and consists of a mix of legislation, technical standards and guidance that aims to ensure consumer safety. A myriad of EU legislation has been added too, with dozens of statutory instruments that cover product safety and thousands of agreed standards published by the British Standards Institution. This has resulted in a complicated body of law. Moreover, significant pieces of relevant legislation – such as the Consumer Protection Act 1987 or the General Product Safety Regulations 2005 (“GPSR”) – have not been materially revised since they were implemented giving rise to a concern that important safeguards are becoming increasingly outdated due to advancements in e.g. supply chains, e-Commerce, and product technology. OPSS’ current focus is on updating rules currently contained in the GPSR and some product-specific laws, while excluding food, chemicals, medical or healthcare products, construction products or vehicles (all of which are regulated separately). Importantly, the proposal also hints at a potential reform in the UK's civil product liability rules.

Overview of the consultation

The consultation outlines thirteen proposals in relation to three core aspects of the proposed new product safety framework, namely (i) bringing products to the market, (ii) online supply chains; and (iii) compliance and enforcement. The following is an overview of some of the key initiatives being consulted on under each head.

Bringing products to the market

• Hazard-based regulation: the OPSS is exploring whether the UK should move to a “simpler” risk management system which categorises products based on hazard. Hazard-based models categorise products according to the hazards or risks which they present, for example according to the likely impact of harm caused, expected user groups, or the likelihood of harm. Higher risk products would be subject to more rigorous requirements and the OPSS is considering “more explicitly” linking marking and conformity assessment requirements according to a product’s risk level. This would be in contrast to the current system which primarily relies on detailed and prescriptive product specific regulations, and which, in OPSS’ view, is increasingly difficult to keep up to date given the pace at which products enter the market. Overall, the aim is to reduce the regulatory requirements on businesses, reduce compliance costs, and make conformity assessments easier where possible.

• Voluntary e-labelling: the Government is looking into the feasibility of introducing an optional electronic labelling system whereby manufacturers could, if they wish, make certain marking and compliance information available digitally via a screen rather than physically accompanying or indelibly marked on the product. Voluntary e-labelling of consumer products is seen as a potential opportunity for the UK to show regulatory leadership and an example of where divergence from the EU could support innovation and benefit business since e-labelling is not currently accepted in the EU in relation to many consumer products.

Online supply chains

• Tackling the listing and re-listing of unsafe products: OPSS is considering legislating that if a business conducts particular activities, they should be designated as an “online marketplace” and made subject to specific (new) duties (in addition to ongoing importer or distributor obligations). Relevant activities that may lead to this designation include providing an online platform which connects traders with buyers and enables sellers to list products for sale. Online marketplaces would also have duties to cooperate with enforcement authorities to provide information and take appropriate actions if products are unsafe or non-compliant.

• Due care requirements: directly linked to the above, OPSS is consulting on the introduction of specific due care requirements for online marketplaces which could, amongst other things, see the introduction of a requirement to identify and remove unsafe product listings, putting online marketplaces at the centre of the online product safety regime (which is likely to lead to increased compliance costs for such online marketplaces).

Enforcement and compliance

• Enforcement: the consultation is looking into the need to enhance OPSS’ ability to lead and coordinate enforcement activities. Currently, enforcement powers are contained across a number of pieces of domestic legislation and the concern is that, as enforcement legislation has been introduced over time, powers have become misaligned and inconsistent. OPSS proposes to align enforcement legislation as far as possible including by creating a single set of notices and offences covering all products in the framework and to provide authorities with powers to issue improvement notices and civil monetary penalties where necessary to do so. It also envisages to equip the Secretary of State with the power to be able to take over an investigation from local authorities in cases which meet the definition of being nationally significant, novel, or contentious.

• Creating a fit for purpose product liability regime: finally, and importantly, the consultation foreshadows a broader review of the Consumer Protection Act 1987 (“CPA”). The CPA enables consumers to seek compensation for damage caused by a defective product. Especially in relation to new technologies and increased innovation in product design, there is a concern that current definitions in the CPA, such as “product” and “defect”, may no longer be adequate. This is directly linked to a concern that as products become more sophisticated and driven by complex software, liability may also be more difficult to establish. This is particularly relevant in relation to products where software is updated, and to functions and behaviors commonly described as Artificial Intelligence (AI) where a product’s behaviour might be driven by opaque data models and algorithms, or it “learns” and therefore changes over time.

The consultation has now closed and it will be interesting to see the feedback that OPSS receives and the changes it will seek to implement. In light of the changes that we’re seeing at the EU level, we expect the Government is likely to be keen to act fast with a view to not fall behind. Given the important role the product liability regime plays in modern-day society, one can expect that any proposed changes will be met with strong reactions from business groups and/or consumer groups alike.