1st edition – July 2020

Here’s the first edition of our monthly bite-sized digest, Productwise 3-2-1 where each month, we’ll be bringing to the top of your inbox (and your agenda):

  • 3 key takeaways from the past month
  • 2 hotbed issues you should keep your eye on
  • 1 practice tip to keep you at the top of your game

3 top things from the month just gone

  • Public consultation on the revision of the General Product Safety Directive opened on 30 June 2020.  The General Product Safety Directive (2001/95/EC) is an overarching piece of EU legislation that affects the majority of products sold in the EU (with the exception of pharmaceuticals, medical devices and food). It 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 revision outlined in the European Commission’s 2020 Work Programme (see our blog here) will look at updating the general legal framework on product safety, tackling issues arising from new technologies and the coverage of new product safety risks, introducing concrete actions for online selling, improving recall effectiveness, updating the legislation to address the gap between harmonised and non-harmonised products in terms of market surveillance in light of the “Goods Package” and strengthening the enforcement powers of Member States in relation to import controls. Feedback on the Commission’s Roadmap for the initiative must be submitted by 1 September, and the public consultation closes on 6 October 2020.  The public consultation is an important opportunity for product manufacturers, importers, distributors and other stakeholders to have their say and help shape the future of policy and law in this area. See our blog here to find out more and see how you can get involved.
  • Agreement reached on new laws to introduce representative actions across the EU. An agreement was reached on 22 June 2020 between the European Parliament, European Council and European Commission on the final text of the proposed directive on representative actions for the protection of the collective interests of consumers. This is the EU’s model for introducing representative actions across the EU, but with safeguards built-in to avoid abusive actions. The EU-wide rules would enable a consumer organisation to bring a representative action seeking compensation for a defective product or to oblige a trader to repair or replace a defective product, where the same product has caused harm to a large group of consumers.  To become law, the agreed text now needs to be formally adopted and then published in the Official Journal of the European Union.  The directive will enter into force 20 days following its publication in the Official Journal of the European Union. Member States will then have 24 months to transpose the directive into their national laws, and an additional six months to apply it. Check-out our blogs here and here if you’d like to find out more.
  • Confirmation Trouble for U.S. CPSC Chairman Nominee. President Trump’s nominee to become the next Chairman of the U.S. Consumer Product Safety Commission (who must be confirmed by a vote of the US Senate) is facing bipartisan opposition leading to some uncertainty about whether she will ultimately obtain Senate approval to become the next CPSC Chairman. On the day after Dr. Nancy Beck’s 16 June 2020 confirmation hearing, a Republican member of the Senate Commerce Committee, Shelley Capito (R, W.Va), announced that she would vote against advancing Dr. Beck’s nomination out of committee (meaning she likely would not obtain committee approval) and also vote against her confirmation at the full Senate level. On the same day, Republican Senator Susan Collins (R, Maine) stated she also would vote against the confirmation of Dr. Beck. Both Senators cited Dr. Beck’s involvement with delayed regulations on PFAS substances while she worked as a political appointee at the Environmental Protection Agency (EPA) in their statements announcing how they would vote. Senate Democrats have been fully united in their opposition to Dr. Beck’s confirmation. While it’s still possible that Dr. Beck could be confirmed and become the next CPSC Chairman given that Republicans hold 53 of the 100 seats in the Senate, the defection of two prominent Republican Senators certainly makes the path to Dr. Beck’s confirmation more complicated and uncertain.

2 to look out for

  • Report on notifications made for dangerous products in the EU during 2019 coming out on 7 July 2020.  During the ICPHSO Virtual Training Workshop on 17 June 2020, it was announced that the Commission’s Report on the Safety Gate Rapid Alert System for dangerous non-food products for 2019 will be published by the European Commission on 7 July 2020.
  • Public consultation on the upcoming revision of EU packaging laws expected to be launched soon. The European Commission has published its upcoming plan in the form of an Inception Impact Assessment (or “Roadmap”) for revising the Packaging and Packaging Waste Directive (94/62/EC), as outlined in the new Circular Economy Action Plan (see our blog here). The aim is to reinforce mandatory essential requirements for packaging and potentially introduce other measures such as reducing over-packaging, placing restrictions on the use of certain packaging materials for some applications (e.g. where alternative reusable products or systems are possible or where consumer goods can be handled safely without packaging), and reducing the complexity of packaging materials (including the number of materials and polymers used). The European Commission will also assess the feasibility of EU-wide labelling to facilitate the correct separation of packaging waste at source. Feedback on the Commission’s Roadmap for this initiative closes on 6 August 2020.  Look out for a public consultation expected to be launched soon. A draft legislative proposal is then expected next year.

1 top practice tip

  • Compile a soft copy set of materials on international product liability and product safety to keep to hand. It’s the type of information that you come across on a daily basis but, as soon as you need it in a hurry or a crisis, it’s hard to find. Collating them as you find them, particularly in soft copy format ideally with links, or setting aside time to do this when things aren’t so busy means you’re better prepared. There are many great resources available online – let us know if you need some pointers on where to look. By way of example, Chambers and Partners Practice Guide to Product Liability and Safety features insight and contributions from many of the leading experts in this field from around the world. The 2020 edition has just been published and is available here.

First edition – done! Any comments or feedback, then please feel free to contact the authors, or any of your usual contacts within the team, who would love to hear from you.

Best wishes,

The Cooley Products Team

🚀

Posted by Claire Temple