6th edition – December 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

This month it’s all about the EU’s New Consumer Agenda, the US CPSC referring a civil penalty enforcement case to the DOJ, the European Parliament adopting two resolutions on sustainability and product safety, the reviews of the EU’s New Legislative Framework for CE-marked products, the CPSC’s upcoming Artificial Intelligence Forum and getting ready for the new EU representative actions directive.

Ready?! Read on….

3 top things from the month just gone

  • EU’s New Consumer Agenda. The European Commission published its New Consumer Agenda for 2020-2025 setting out its plans for consumer policy from 2020-2025. This is a significant insight for stakeholders into the EU’s strategic objectives over the next five years. Sustainability, new technologies, online sales and effective cross-border EU enforcement top the bill. The Commission’s agenda includes changes to how products are designed, labelled, marketed and sold online, as well as how the safety and compliance of products, and consumer rights and remedies, are enforced. See our blogs here and here to find out more.
  • A sign of more aggressive civil penalty enforcement in the US? Acting CPSC Chairman announces that the CPSC has referred a penalty case to the DOJ. Acting CPSC Chairman Bob Adler released a statement announcing that a bipartisan majority of the CPSC voted to refer a case seeking a substantial civil penalty for a violation of the Consumer Product Safety Act to the Department of Justice (“DOJ”). At this stage, the company, industry and violation have been kept confidential. In response to Adler’s statement, Commissioner Peter Feldman tweeted that it was an “outrageous breach of protocol for the Acting Chairman to comment publicly on an active civil penalty matter”. Adler quickly issued a response stating that the DOJ had been provided with an advance copy of his statement about the civil penalty referral and they did not have any objections to it. For a number of reasons, very few cases progress to the stage of being referred by the CPSC to the DOJ and it is rare for the CPSC to make a public announcement when a case is referred. However, it’s not unprecedented for a statement like this to be issued. Back in 2016, former Chairman, now Commissioner Elliot Kaye issued a statement announcing that the CPSC was referring a case to the DOJ, naming the company involved and the violation.   
  • European Parliament calls on the European Commission to strengthen the “right-to-repair”, tackle planned obsolescence and enhance product safety. The European Parliament adopted two resolutions on 25 November 2020: 1) “Towards a more sustainable single market for business and consumers” calling on the European Commission to take action to, amongst other things, strengthen consumers’ “right to repair” in Europe, as well as to legislate against “planned obsolescence” in products, including rules for products to be labelled according to their durability; and 2) “Addressing product safety in the single market” calling on the Commission to act to enhance product safety generally and to close perceived “legal gaps”, specifically citing online sales, the role of online platforms and marketplaces, as well as risks arising from “emerging technologies such as Artificial Intelligence”. The resolutions form recommendations from the European Parliament to the European Commission to feed into policy and legislative initiatives that the Commission is currently working on, such as measures under the New Consumer Agenda (discussed above), the Sustainable Products Initiative (see our blog here) and the revision of the General Product Safety Directive (see our blog here).

2 to look out for  

  • Review of the EU New Legislative Framework. The European Commission is undertaking a review of the New Legislative Framework (“NLF”). The NLF is a legislative framework governing accreditation, market surveillance and marketing of CE-marked products (in effect, the template for EU product-specific legislation). The aim is to assess the NLF’s effectiveness, efficiency, relevance, coherence and EU added value, whilst also tackling whether the framework is fit for the digital age and a greener economy.  The proposed roadmap for the review focuses on: software and hardware updates and upgrades; refurbishment and repairs; conformity assessment and accreditation. Feedback on the draft “Evaluation Roadmap” that sets the scene for a subsequent substantive consultation closed on 2 December 2020.  A public consultation is scheduled for Q1 2021.  See here to find out more.
  • US CPSC Artificial Intelligence Forum.  CPSC staff are hosting an online forum on Artificial Intelligence (“AI”) and related technologies such as Machine Learning (“ML”) on 2 March 2021. The aim of the forum is to collect information on existing and proposed voluntary consensus standards, certifications and product specification efforts associated with products using AI, ML, and related technologies to assist CPSC staff in making recommendations for improving the safety of consumer products that include this technology. If you’d like to attend the forum, you need to register by 15 February 2021. If you’re interested in serving on panels or presenting information at the forum, you need to register by 15 January 2021.  See here for further information.

1 top practice tip:

  • Get ready for the new directive on representative actions in the EU. This month’s top practice tip is from Sam Tacey, Special Counsel in Cooley’s Insurance & Reinsurance team in London. A new directive allowing groups of EU consumers to launch collective actions against traders has passed through the final stages of the legislative process after being adopted by the European Parliament on 24 November 2020 (see our blog here). The directive will apply 30 months from its entry into force. This means we’ll see representative action mechanisms in place across Europe by 2023. Now is the ideal time for manufacturers to consider the possible effects of the directive on their business and risk profile and to ensure that the insurance protection they have in place is fit for purpose. Read Sam’s blog here to find out about some of the issues policyholders should be aware of when considering the protection offered by their insurance in this context. You can also reach out to Sam or any member of the Cooley Products team for more information.

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 to all and festive wishes to those celebrating the holidays!

The Cooley Products Team


Posted by Claire Temple