The General Product Safety Directive (“GPSD”) is central to the EU’s product regulatory regime. It applies to most consumer products sold in the EU, and complements sector-specific rules, such as those that apply to toys, electrical and electronic goods, cosmetics, chemicals and construction products. It does not cover pharmaceuticals, medical devices or food, which fall under separate regimes. The GPSD also establishes the EU Rapid Alert System, which enables quick exchange of information between EU/EEA Member States and the European Commission on measures taken on dangerous non-food products. The GPSD is, in the words of the Commission, the EU’s “safety net” for consumers.
The GPSD is technology-neutral and has proven adept at adapting to change since its inception. However, the Commission believes that the GPSD, at nearly 20 years old, is no longer keeping pace with developments in products and EU markets. It has identified the following specific product safety challenges as the basis for potential changes.
- New technologies. The GPSD dates from a period where connected devices and Artificial Intelligence (“AI”) in consumer products were relatively niche technologies. By contrast, the Commission suggests that billions of connected devices will be in use worldwide by the end of 2020. It believes the growth of these technologies pose challenges to the current definition of products (including to what extent a product includes software) and create new risks (e.g. a product can become dangerous by not having sufficient cybersecurity protection, leaving it open to hacking). It also creates uncertainty in relation to the concept of “placing on the market” (e.g. if products subsequently change as a result of software updates). These concerns follow on from the Report on safety and liability implications of AI, the Internet of Things and Robotics and a White Paper on AI published by the Commission in February 2020 (which we have blogged and held a webinar about).
- Online sales channels. The increase in online selling in the EU creates new challenges. The Commission feels that Member States do not have sufficiently effective instruments for online market surveillance and that product safety rules for online platforms are unclear. Several online marketplaces have signed voluntary commitments to improve the safety of products online. However, the Commission suggests that as these commitments are voluntary and many economic operators do not join, safety concerns are not effectively addressed and competition between economic operators may be affected.
- Insufficient recall effectiveness. The Commission suggests that the effectiveness of product recalls from consumers is low which means that too many dangerous products still remain in the hand of consumers. This may be because consumers are unaware that a product they own is being recalled or because the recall itself is unclear and burdensome, discouraging consumers from taking action. The Commission suggests that a third of EU consumers continue using a recalled product despite seeing a recall notice.
- Market surveillance rules are complex, uneven and not fully effective. The Commission believes that market surveillance and customs authorities lack appropriate instruments and resources to enforce product safety rules, including tools to impose effective sanctions, that products are difficult to trace throughout the supply chain and that the legal framework on market surveillance is complex and uneven for different products.
In particular, the recent adoption of the Goods Package (in particular Regulation 2019/1020) covering products under EU harmonised rules will lead to uneven obligations for different EU businesses depending on whether they are dealing with products subject to such rules or not. In addition, there are discrepancies in the GPSD implementation across Member States (e.g. in the use of product safety test reports as evidence) and the Commission lacks powers to intervene in case of divergence in product safety risk assessments between authorities.
- Rules for food-imitating products. The legal framework for food-imitating products is applied differently in EU Member States currently.
This is the first review of the GPSD since 2011, and could lead to the first significant revision of the GPSD in nearly two decades. As such, this consultation represents an important opportunity for stakeholders to influence the way in which EU product rules are applied and enforced. The consultation will be followed by an evaluation of the GPSD, an impact assessment of policy options and a report on any changes required.
You can find more information about the initiative and submit your comments here. Feedback on the Commission’s Roadmap must be submitted by 1 September 2020 and the public consultation closes on 6 October 2020. Feedback will be made public. Please reach out to the Cooley products team if you need help or advice in relation to this Consultation.