2nd edition – August 2020

Here’s the next 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

  • Report on notifications made for dangerous products in the EU during 2019 was published.  The European Commission’s Report on the Safety Gate Rapid Alert System for dangerous non-food products for 2019 was published on 7 July 2020.  In 2019, authorities from the 31 countries (EU Member States plus Norway, Iceland, Liechtenstein and the UK) exchanged 2,243 alerts on dangerous products through the system, which resulted in 4,477 follow-up actions taken by authorities.  The top five most notified product categories were: toys (29%); motor vehicles (23%); clothing, textiles and fashion items (8%); electrical appliances and equipment (8%) and cosmetics (6%). Top five most notified risks: injuries (27%); chemical components in products (23%); choking (13%); electric shock (10%); and fire (7%). The following areas have been identified as the focus for coordinated activities between the European Commission and authorities from Member States during 2020: testing products (including toys, jewellery, home play outdoor equipment, cables, small kitchen heating appliances, baby nests and children’s car seats), risk assessments, online market surveillance, cooperation with customs, injury and accident data collection, communication campaigns and products related to COVID-19. See here for more information.
  • Artificial Intelligence (AI) in the EU: assessment checklist for trustworthy AI and feedback from the public consultation on the AI whitepaper published in July.  An assessment checklist for trustworthy AI, developed by the European Commission’s Independent High-Level Expert Group on AI was published on 17 July 2020.  The checklist translates the Ethics Guidelines on Trustworthy AI (published in 2019) into a practical tool and was refined after being tested by stakeholders during a six-month pilot scheme. The checklist covers the following areas: human agency and oversight; technical robustness and safety (including various risks related to product safety); privacy and data governance; transparency; diversity, non-discrimination and fairness; environmental and societal well-being; and accountability.  In other AI developments, the European Commission published a Summary Report of the feedback it received during a recent public consultation on its AI White Paper.  The AI White Paper sets out the Commission’s proposals for the future regulation of AI including in the areas of product safety and product liability.  An Inception Impact Assessment, complementing the AI White Paper setting out at a high level the various policy options being considered was published on 23 July 2020.  Feedback on the Inception Impact Assessment closes on 10 September 2020. See our blog here and Cooley’s webinar “EU and AI – Navigating the European Approach” here for more information about the AI White Paper and the EU’s proposed approach to regulating AI.
  • Call for views on proposed new laws to introduce mandatory cybersecurity requirements for consumer IoT products sold in the UK opened in July.  A call for views on proposed new laws to “boost” the cybersecurity of consumer IoT products sold in the UK was published on 16 July 2020 and sets out further details on the UK Government’s proposed approach to regulation in this area. Under the current proposal, the scope of products covered is broad and includes: connected children’s toys and baby monitors; connected safety-relevant products such as smoke detectors and door locks; IoT base stations and hubs to which multiple devices connect; smart cameras, TVs and speakers; wearable health trackers; connected home automation and alarm systems (in particular their gateways and hubs); connected appliances, such as washing machines and fridges; and smart home assistants.  Under the proposed new laws, the following three requirements will be mandatory for these products sold in the UK:
    • Device passwords must be unique and not resettable to any universal factory setting
    • Manufacturers must provide a public point of contact so anyone can report a vulnerability
    • Information stating the minimum length of time for which the device will receive security updates must be provided to customers

Products that do not comply may be banned or subject to a recall notice, amongst other enforcement measures that includes fines and criminal penalties.  Feedback on the proposed new laws is open until 6 September 2020 and can be submitted via the link here

2 to look out for

  • The EU Chemicals Strategy for Sustainability is expected to be published Q3 2020, hazardous chemicals in consumer products in scope to be addressed. The initiative announced in the European Green Deal and as set-out in the Inception Impact Assessment, will build on the recent review of EU chemicals legislation and other EU policy initiatives on chemicals.  It’s aim is to simplify and strengthen EU rules on chemicals by addressing a number of gaps, overlaps and inconsistencies, and take action where there is new scientific evidence on risks posed by chemicals to humans and the environment. Hazardous chemicals in consumer products is one of the areas in scope.  
  • Upcoming requirement to identify a responsible economic operator for certain products under the Goods Package applies July 2021. The“Goods Package”, aimed at increasing enforcement and co-operative market surveillance, introduces a requirement that for certain product categories (including toys, electrical and electronic devices, constructions products, PPE and machinery, among others), there must be a designated economic operator established in the EU who is responsible for various tasks related to product safety and compliance. Associated labelling requirements to provide certain information about the responsible economic operator have also been introduced. From 16 July 2021, affected products may only be placed on the EU market if they comply with these requirements. Businesses placing affected products on the EU market should make sure they understand their legal obligations and assess whether they need to take any steps (for example, businesses may need to take action where they don’t currently identify a responsible economic operator established in the EU or they rely on an economic operator established in the United Kingdom). The European Commission has been preparing guidelines for market surveillance authorities and businesses on the practical implementation of these requirements, following feedback received from stakeholders earlier this year. Once finalised, the guidelines will be available on the European Commission’s website. 

1 top practice tip

  • This month’s top practice tip is from Matt Howsare, Chair of Cooley’s North American product safety practice: when recalling a product in multiple countries, keep in mind that in a number of jurisdictions, your local lawyers may need to reach-out to the regulator ahead of the formal recall notification. It’s routinely required by the CPSC in the US, and it’s increasingly becoming expected in some other countries around the world. An informal phone call may be sufficient or the full set of draft notification documents and a formal report may need to be provided to the regulator, depending on the jurisdiction.  

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