5th edition – November 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

This month it’s all about the UN’s recent recommendation to prevent cross-border distribution of unsafe consumer products, two important reports on product safety published by the UK regulator, US developments on consumer protection and new technologies, the European Commission’s 2021 work programme, proposed legislation in the US for IOT cyber-security and how organisations can get involved to help shape future law and policy. 

3 top things from the month just gone

  • United Nations starts work to move the needle on International Consumer Product Safety. The United Nations Review Conference on Competition and Consumer Protection Law and Policy adopted a “Recommendation to Prevent Cross-Border Distribution of Known Unsafe Consumer Products” on 23 October 2020. This is the first time the UN has published a specific recommendation on this topic.  Whilst, the title of the Recommendation indicates a focus on cross-border sales of dangerous products, the detail of the initiative goes much further. Implicit in the formulation of the Recommendation is recognition that effective control of cross-border sales of dangerous products is dependent upon both effective national systems to detect dangerous products locally, and workable mechanisms for rapid and reliable exchange of relevant information between authorities in different countries. The Recommendation was expressly supported by UN Members from around the world, in a clear demonstration that governments of major countries are focused on these issues, are looking for changes in both regulatory structures and enforcement mechanisms in order to move the needle on this area in a meaningful way. To find out more see our blog here.
  • UK OPSS published 2 important product safety reports. The Office of Product Safety and Standards published two reports that give interesting new insights into important aspects of product safety. The first report covers some experimental research into product recall effectiveness. This work is especially important because there is a real lack of data on this aspect, as highlighted by the sources cited in the report’s “Literature Review”, which are mostly at least 10 years old. Key findings are (i) the word “voluntary” should not be used in recall notices; and (ii) recall notices should bullet point steps consumers need to take. The second report covers research on consumer attitudes to product safety. It reveals that consumers have a high level of trust in existing product safety systems. Whilst they place strong reliance on government to ensure products available to them are safe, by far their most trusted source of safety information is from product manufacturers. See our blog here for links to the reports.
  • The US House of Representatives passed three consumer protection and commerce bills, with a focus on enhancing the CPSC’s ability to stop unsafe products entering the US and new technologies. The following three bills were passed by the House of Representatives on 29 September and will now be passed to the Senate: (1) the Consumer Product Safety Inspection Enhancement Act which aims to enhance the CPSC’s ability to identify unsafe consumer products entering the US by requiring the CPSC to enhance targeting, surveillance and screening of consumer products (with a focus on e-commerce shipments) and require certificates of compliance with applicable product safety rules be filed electronically for products entering the US; (2) the Consumer Safety Technology Act that will direct the CPSC to establish a pilot program to explore the use of Artificial Intelligence for at least one of the following purposes: tracking trends with respect to injuries involving consumer products; identifying consumer product hazards; monitoring the retail market place (including websites) for the sale of recalled consumer products (new and used); or identifying consumer products required by section 17(a) of the Consumer Product Safety Act to be refused import into the US; and (3) theAmerican Competitiveness Of a More Productive Emerging Tech Economy Act or the “American COMPETE Act,” that will direct the Department of Commerce and the Federal Trade Commission to conduct various studies and submit reports on emerging technologies including (among others) AI, blockchain, IoT, 3D printing and unmanned delivery services.

2 to look out for  

  • Sustainability and product safety remain on the agenda in the EU for 2021. The European Commission published its 2021 Work Programme on 19 October. Measures to improve the sustainability of consumer products feature heavily on the agenda including the Sustainable Products Policy Initiative (see our blog here), the Circular Electronics Initiative and new design requirements and consumer rights for electronics. The Commission is pressing ahead on AI and will follow-up its White Paper on AI published earlier this year with legislation covering safety, liability, fundamental rights and data aspects of artificial intelligence. A number of revisions and evaluations to some key sector-specific product safety rules have also been announced (including the Machinery Directive, the Construction Products Regulation and the on-going evaluation of the EMC Directive – see our blog here). The Commission will also be looking at the New Legislative Framework for CE-marked products (in effect, the template for EU product-specific legislation). This is a wide-ranging policy agenda, with real significance for all stakeholders. Read our quick-fire review here.
  • Proposed legislation on the cyber-security of IoT devices used by US Federal Agencies passed by the House of Representatives. Under the proposed legislation, the National Institute of Standards and Technology (“NIST”) will be required to create standards and guidelines for the cybersecurity of IoT devices used by Federal agencies. The proposed legislation will also prohibit a Federal Agency from procuring or using IoT devices that don’t comply. The legislation will now be passed to the Senate. If this legislation becomes law, it will have an impact on companies that supply IoT devices to the US Federal Government. However, it could also influence the future shape of cybersecurity for consumer IoT devices (e.g. where companies treat the standards and guidelines as a baseline for their products in order to be able to supply both consumers and US Federal Agencies). See here for further information.

1 top practice tip:

  • As an organisation, you can get involved in shaping future legislative and policy developments that could impact your business for years to come. There are a number of ways organisations can do this in the EU and UK, such as submitting feedback in response to consultations, completing stakeholder surveys and taking part in targeted interviews or studies commissioned by law makers. However, remember that feedback is usually made public. Keep a look out for new developments and opportunities to contribute. For example at the ICPHSO International Symposium held last week, we heard about various sustainability initiatives being developed now and the importance of stakeholders getting involved to ensure that proposed new measures deliver on their ambition of making products more sustainable, without impacting product safety, unfairly increasing liability or being a barrier to innovation. The Cooley products team has a lot of experience navigating the EU and UK legislative process and can help you to contribute your views or evaluate what proposed changes might mean for your business.

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