3rd edition – September 2020

Here’s the next edition of our monthly bite-sized digest, Productwise 3-2-1 where each month we bring 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

  • OPSS sets out best practice on confidentiality clauses when settling product liability claims. The UK’s product safety regulator, the Office for Product Safety and Standards (OPSS) published new guidance on the use of confidentiality clauses in settlement agreements with consumers on 31 July 2020. The guidance is particularly relevant to product manufacturers and distributors settling product liability claims with consumers. While this guidance is not legally binding, it provides a clear indication of the expectations of the regulator, and should be carefully considered by all product manufacturers or distributors when settling product liability claims with consumers.  To find out more, read our blog here. If your settlement agreements require review in light of this guidance, reach out to your usual Cooley contact to discuss further.
  • Review of US regulations on third party testing and certification to demonstrate compliance with safety standards for children’s products launched. The Consumer Product Safety Commission (CPSC) launched a review of the regulations for third party testing and certification to demonstrate compliance with safety standards for children’s products in August 2020. The Regulatory Flexibility Act Section 610 review is seeking feedback to determine whether the regulations should be maintained without change, or modified to minimise the significant impact of the rules on a substantial number of small entities. Feedback is open until 23 October 2020. See here for more information.
  • European Commission seeking feedback on introducing new laws requiring companies to substantiate green claims for products and services. A public consultation on whether new laws should be introduced in the EU that would require companies to substantiate claims they make about the environmental footprint of their products or services using standard methods for quantifying them opened on 27 August 2020.  This initiative is part of the New Circular Economy Action Plan (see our blog here) and aims to make green claims reliable, comparable and verifiable across the EU to reduce “greenwashing” where companies give a false impression of their environmental impact. The consultation closes on 3 December 2020. To find out more see here.

2 to look out for

  • EU Sustainable Products Initiative. The “Roadmap” in the form of an Inception Impact Assessment, setting out further detail of the European Commission’s Sustainable Products Initiative is being prepared and will be published on the Commission’s webpage for this initiative here, with a public consultation due to be launched this year. The Sustainable Products Initiative is part of the new Circular Economy Action Plan (see our blog here) and aims to make products placed on the EU market more sustainable, durable, reusable, reparable, recyclable and consume less energy. The presence of hazardous chemicals in products and increasing resource efficiency are also in scope to be addressed.
  • US CPSC Micromobility Products Forum. CPSC staff are hosting an online forum on micromobility products (e-scooters, hoverboards, e-bikes) on 15 September 2020.  The aim is to collect information on the product market, hazards, risks, and risk reduction efforts associated with micromobility consumer products to assist CPSC staff in making recommendations for improving the safety of these products.  See here for further information.

1 top practice tip

  • It’s important to keep abreast of international circular economy developments to understand not only how they will impact your business, but to also anticipate future regulatory change. There are a number of opportunities coming up to learn more.  ICPHSO’s 2020 International Virtual Symposium will be exploring these issues with the theme “Safely Sustainable: exploring how the concept of sustainability is impacting and shaping consumer product safety” on 27 and 28 October 2020.  See here to find out more. The Products Team at Cooley will also be hosting a webinar together with Compliance & Risks and Ramboll on “Moving to a Circular Economy” on 24 September 2020.  Visit our Productwise blog here for future details.

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