Today, the new UK Office for Product Safety and Standards (OPSS) published its detailed strategy paper, outlining its plans and priorities for its future activities.  The publication of this strategy is an important step. The establishment of the OPSS in January this year, was significant not only for the UK, but for the future of product safety policy and enforcement throughout Europe. With the publication of this strategy paper, we now have a clearer insight into how this new office will proceed to fulfill its important and often ambitious objectives.

The paper identifies four objectives of the OPSS:

  1. Analyse: making use of scientific evidence and data in decision making
  2. Inform: providing information and guidance to consumers and businesses
  3. Enforce: using powers to maintain protection, fairness and confidence
  4. Build: developing a robust product safety enforcement regime that is ready for the challenges of tomorrow

Some of the key practical points for innovative industries emerging from the strategy paper are:

Engagement

For industry, a key theme of the strategy paper is the emphasis on engagement and partnership between the regulator and industry participants, recognising the shared objectives in building and protecting markets in which companies can innovate and operate profitable businesses, whilst ensuring consumers can be confident in the safety of the products made available to them.  This signals opportunities for businesses, particularly those that are innovating and creating change in dynamic markets.

The strategy paper also recognises that regulatory policy needs to be agile and response, and focused on supporting growth and good innovation.

On that basis, it seems clear that opportunities will exist for innovative companies to collaborate with OPSS to help ensure the shared objectives are met in a productive and efficient way.  On the other hand, companies that fail to engage with OPSS and its objectives as it seeks to fill its role as an enforcement agency will be vulnerable to the increasing levels of enforcement activity that we expect to see in the UK.

Data

The OPSS intends to seek, and rely on data to drive much of its policy direction and prioritisation of activities.  This has a number of practical implications.  In particular, it means that the OPSS will start to become a repository of potentially a significant body of data on product safety.  In fact, this process is already starting.  Industry will have a strong stake in ensuring that the data being collected and relied upon is reliable and relevant.  Again, this also creates opportunities, as OPSS will be keen to have the benefit of data held by industry on issues relevant to product safety.

New technologies and innovation

The strategy paper recognises not only the need to foster innovation, it also notes the challenges of regulatory policy in keeping up with the pace of change, and new risks that may arise.  The strategy paper notes an intention “to draw on scientific research to shape new safety solutions for emerging technologies”.

OPSS in the international community

The establishment of OPSS in the UK coincides with a period of significant regulatory change in the UK, as the UK prepares to leave membership of the EU (although the establishment of the OPSS was not directly connected with Brexit preparations).  Against that background, questions inevitably arise as to the role OPSS will take in the future in the EU product safety regime, and in the international product safety community generally.

The reality is that, irrespective of the outcome of current Brexit negotiations between the UK and the EU, the OPSS will be a significant enforcement agency and policy innovator in the product safety world, in Europe and beyond, moving forward.  For a start, the OPSS is relatively rare internationally, as one of the few national agencies exclusively focused on product safety and product standards.  And with a meaningful budget to support its work, its activities will set standards that may subsequently be followed elsewhere in the world, especially in Europe.  The future role of OPSS beyond the UK is emphasised in the strategy paper, as it is made clear that OPSS will, as a priority, seek to engage in international policy forums such as OECD as part of its core activities.

Compliance and Enforcement

The emergence of a new, active enforcement agency will make it more likely that issues of non-compliance will be caught by the regulators, and the risk of enforcement action against non-compliant companies will be greater.

Importantly, it is clear from the strategy paper that OPSS will be a strong and active enforcement agency, determined to use the full suite of tools and powers available to it to ensure consumer safety and compliance with regulations.  Working with local trading standards offices, the OPSS will seek to focus enforcement activities in an intelligent way, using data to identify risks for prioritisation.

OPSS supported the production and publication earlier this year of the “PAS7100” Code of Practice for Product Recalls, and business should assume that OPSS will expect businesses selling products in Europe have systems in place to meet the requirements of that Code of Practice.

It is made clear in the strategy paper that businesses “should continue to notify their local trading standards authority where they identify any possible safety concern with a product”, and it should be expected that OPSS will start to take a stricter view of the notification obligation than perhaps has been seen in Europe in the past.  Information about risks provided to trading standards by businesses will form part of the body of data collected by OPSS to help it plan its strategies and priorities into the future.

We are already seeing key aspects of this strategy being implemented by OPSS, and it is clear that OPSS will be an active and dynamic enforcement agency in the international product safety world. The publication of the Strategy Paper is just the start.  Changes will continue, as OPSS continues to put into place the systems and structures to give effect to the strategy.  Along with the strategy paper, OPSS has published a “Delivery Plan” outlining timetable for various specific initiatives.  There is going to be a lot of activity in this area.

A copy of the strategy paper and accompanying documents can be found here.

Further updates and analysis to follow on #CooleyProductwise.

Posted by Jamie Humphreys

Jamie Humphreys is a litigation and regulatory lawyer. He is a strategic advisor to clients who face critical threats to their business at all stages of the product life-cycle, working with them to ensure the most favourable outcome and manage any reputational impact. He also provides policy advice to clients on proposed legislation and regulations that may introduce profound changes to their business. He has acted on high profile litigation across a range of different industries, internal investigations into allegations of fraud by global products manufacturers, major corruption investigations for Governments, and B2B product liability disputes, international recalls and consumer claims for well-known global brands. He is passionate about the impact that new technologies such as 3D printing, AI and Internet of Things will have in the products space and works with clients to ensure they prosper within a dynamic regulatory environment.

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