A year in review

2022 was, of course, the year in which we started to move into what we all still hope is that start of the post-pandemic ‘new normal’. In the world of international products law, one of the things we have learned is that the patterns and trends that had started to develop pre-COVID have not been disrupted over that time, and now continue with increasing urgency. Policy shifts and regulatory reforms around the world, reacting to the challenges of the new digital economy, are driving extra complexity, obligations and risks for businesses, and all stakeholders are struggling to keep up with the pace. Major policy initiatives in products law have also been driven by an increasing focus on sustainability and the circular economy.

Europe has been at the epicentre of many of the major initiatives, with 2022 bringing us a raft of really significant new measures.  Many of these EU initiatives are proving to be highly influential in other countries around the world, which are either modelling their own policy reforms on the EU lead, or at least being inspired by the direction and content of EU reforms.

In the last year, by way of example, we have seen the European Commission publish a wide range of legislative proposals, including:

  • Proposed Regulation on Ecodesign for Sustainable Products (Productwise blog here)
  • Proposed Directive on empowering consumers for the green transition (amending the Unfair Commercial Practices Directive and Consumer Rights Directive)
  • Proposed revision of the ecodesign regulations for standby and off mode electric power consumption
  • Proposed new ecodesign and energy labelling regulations for mobile phones and tablets (Productwise blog here)
  • Proposed Cyber Resilience Act
  • Proposed revision of the Product Liability Directive (Productwise blog here)
  • Proposed new Artificial Intelligence Liability Directive (Productwise blog here)
  • Proposed new regulation to ban products made with forced labour (Productwise blog here)
  • Proposed revision of the Packaging and Packaging Waste Directive (in the form of a regulation)
  • Proposed restriction on intentionally added microplastics under REACH (Productwise blog here)
  • Proposed revision of the Regulation on classification, labelling and packaging of chemicals
  • Proposed revision of the Construction Products Regulation

The Commission also published its long-awaited revision of the Blue Guide, which is the major guidance document on the interpretation of European product regulations (Productwise blog here), as well as publishing a number of key policy documents, including:

  • Evaluation of the New Legislative Framework
  • EU Strategy for Sustainable and Circular Textiles (Productwise blog here)
  • EU policy framework for biobased, biodegradable and compostable plastics
  • Chemical’s restrictions roadmap as part of the EU’s Chemicals Strategy (Productwise blog here)

The Digital Services Act and Directive to amend the Radio Equipment Directive to introduce a common charger both completed the law making process

A number of key provisions also came into force in 2022, including requirements under the Sale of Goods Directive (Productwise bitesize blog here) and Digital Content and Digital Services Directive (Productwise Bitesize blog here) and the Consumer Law Omnibus Directive (Productwise blog here).

Outside of the EU, policy reforms also featured heavily, including in the UK where, alongside seemingly never-ending BREXIT complications, we saw the publication of:

  • A new Code of Practice for bringing safe products to market, and an updated Code of Practice for Product Recall and Other Corrective Actions (Productwise blog here)
  • The Online Safety Bill
  • A new risk assessment methodology for consumer products, “PRISM” (Productwise blog here)

Also in the UK, the Product Security and Telecommunications Infrastructure Act (establishing a framework to lay down cybersecurity laws for consumer connected products) completed the law making process.

Across the Atlantic, in the US, policy initiatives included:

  • The introduction of “right to repair” laws in New York
  • Publication by the Consumer Product Safety Commission (CPSC) of its 2023-2026 Strategic Plan, setting out a number of key priorities moving forward
  • Increased enforcement activity at CPSC level, including a pattern of increasing civil penalties, together with Commissioner-led calls on Congress for increased enforcement powers

That’s a lot!

Of course, the above is just the tip of the iceberg.  The actual policy reforms around the world in 2022 were much deeper, and broader than reflected in this selection.  It makes for challenging times for all stakeholders.

What to expect in 2023

So what can we look forward to in 2023?  The fact, is the current wave of policy reforms is really only just starting.  We are at the beginning of a fundamental shift, and it’s happening around the world.  Regulatory reform has lagged behind the digital revolution for many years, and is playing catch-up. New policy priorities, driven by new technologies, new markets, and a global focus on sustainability, mean that this process will continue, with companies having to respond. The legal and business risks for those who don’t (or can’t) adapt are real, and significant.

Dusting off the crystal ball, for 2023, we can anticipate at least the following major developments. 

In Europe, we anticipate publication of:

  • A proposed Directive on Right-to-Repair
  • A legislative proposal on substantiating environmental claims
  • A proposed revision of the Toy Safety Directive
  • A proposed revision of RoHS and proposed delegated legislation under RoHS to add new restricted substances
  • A proposed revision of REACH
  • A proposed revision of the ecodesign regulations for computers and computer servers and proposed new energy labelling requirements
  • A proposed revision of the ecodesign regulations for external power supplies (to complete the EU common charger initiative)
  • A proposed revision of the Textile Labelling Regulation
  • A proposed revision of the Waste Framework Directive with a focus on textile and food waste
  • A proposed Regulation on Microplastics Pollution
  • A proposed revision of the Cosmetic Products Regulation

We will also likely see significant steps forward for the proposed General Product Safety Regulation, revised Product Liability Directive, Batteries Regulation, a new Machinery Regulation, and proposed AI Act. And significantly, the new EU Representative Actions Directive will start to apply to cases from June 2023 (Productwise blog here)

Alongside these policy measures, together with counterpart reforms happening all around the world, expect to see continued focus on increased enforcement, and increased co-operation between international regulatory agencies, at least when it comes to enforcement of product laws. 

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Posted by Cooley