On 2 August 2023, the UK government published its long-awaited proposals for reform of the UK product safety regime. There are 13 wide-ranging proposals, some of which could radically change the UK product safety landscape and/or have a significant impact for stakeholders.
The UK government has launched a public consultation on the reforms, which is open until 24 October 2023. This may be the only chance to comment on some of these proposals, so we encourage stakeholders to provide feedback. Read on for our analysis on the key emerging issues and likely next steps.
Headlines
Key proposals include:
- Mandatory incident reporting.
- A new defined role of ‘online marketplace’ with its own set of specific duties.
- An increase in the level of consumer-facing information to be provided for online listings.
- The introduction of voluntary e-labelling.
- Direct penalty powers for enforcement authorities without needing to bring a prosecution.
- A review of the UK product liability regime.
- Radically, a move away from the existing product safety framework (derived from European Union rules) to a new cross-cutting, hazard-based approach.
Expected aspects
Some aspects of these proposals were very much expected. Wide-ranging reforms are already underway in the EU to bring existing rules up to date with new technologies and new market conditions. UK product safety rules are largely derived from EU laws, and the UK is facing many of the same issues. However, since Brexit, the UK was at risk of falling behind. So, it is not surprising that some of the proposals have a familiar ring to them, when we consider what is already underway in Europe, such as around the themes of enhanced consumer protection and increased regulation of new technologies and sales models, including ecommerce. It remains to be seen to what extent the UK government will end up choosing to align with the EU approaches that companies generally would welcome, or whether divergence will be the ultimate theme. As we explained in a previous blog post, the announcement on 1 August 2023 regarding indefinite recognition of the CE mark indicates that this is still very much a live discussion, the outcome of which is hard to predict.
Stricter regulation of online sales
The targeting of ecommerce for greater regulation was especially anticipated. It is a general global theme that those enforcing legislation recognise that the law has not kept pace with technology and, therefore, may not adequately (to their minds) reflect the role ecommerce now plays in supplying products to consumers. The UK government has been particularly vocal about that, so it is not surprising to see proposals for new duties for online marketplaces. The proposed duties include:
- Cooperating with enforcement authorities to provide information and take appropriate actions if products are unsafe or noncompliant.
- Establishing a compliance function in the UK.
- Collecting – and taking reasonable steps to verify – information about third-party sellers of high-risk products.
- Keeping track of the UK government’s Product Recalls and Alerts page, monitoring their marketplaces for products which reasonably look to be an identical or ‘very similar’ product, and taking ‘appropriate action’.
- Gathering information about products and sellers which could indicate a product is unsafe – together with information from enforcement authorities to regularly assess which products warrant greater due diligence – and taking targeted action accordingly.
The consultation seeks to justify the new proposals by explaining that they are designed to ensure consumers are protected whilst minimising the burden on businesses. However, the reality is, if all of these proposals make it into finalised legislation, online marketplaces will be subject to additional burdens, and the risk is that the cost will be passed back to sellers and consumers.
Greater enforcement powers and more data-sharing
Another unsurprising theme is that of enhanced enforcement powers for the Office for Product Safety and Standards (OPSS) and data-sharing with proposals that would enhance its leadership and coordination role. This would see OPSS receiving notices of recalls and other corrective actions, as opposed to Trading Standards, and consolidate existing enforcement legislation. OPSS also would receive new serious incident reports (see ‘The surprises’ section below). Whilst OPSS has been in place for five years, the majority of enforcement of product safety laws has remained at the local level with Trading Standards. What we see proposed now marks a potential shift away from the local level to more national enforcement for certain matters. In addition, there are proposals for new enforcement powers generally including improvement notices, civil monetary penalties without the need for prosecution through the courts and enforcement undertakings.
E-labelling
Finally, we already knew that e-labelling would very likely be contained in the proposals – the government previously indicated it was looking to implement digital labelling sooner as a ‘quick win’. The reality of this proposal is that it is limited in scope – applying only to manufacturer details and UK Conformity Assessed (UKCA) marking, not importer details and other marks –and therefore, arguably, of limited impact.
Surprises
Restructuring the whole framework
What is especially interesting, and perhaps more concerning, is the proposal that some of the fundamental structures of the existing regime be abandoned and replaced. The UK government has said, in addition to ‘streamlining’ the existing framework, ‘we also propose to carefully consider a move away from the current multiplicity of regulation towards a cost-cutting hazard-based framework underpinned by risk assessment, using standards and effective guidance to ensure agility and flexibility in an ever-changing market’. The consultation explains that any new framework could include:
- Categorisation of products by their hazards, rather than, for example, by sector – falling into one of several defined risk levels.
- A cross-cutting approach for pre-market requirements across all product types of a similar risk level – with differing levels of requirements (marking, conformity assessment, etc.) applying according to risk level.
- Guidance to provide additional detail on the application of the essential safety requirements and more detailed product-specific rules, and to support businesses to undertake proportionate pre-market risk assessments.
- The role of standards and the presumption of conformity also may be examined.
It is not entirely clear exactly what this proposal means, but we can predict that a fundamental departure from the well-established structure of product regulation in Europe will not prove to reduce costs for most product manufacturers, given that they will be producing products for multiple markets, but will rather add cost and confusion.
Mandatory incident reporting
The UK government has proposed introducing mandatory incident reporting for product-related incidents. Whilst similar requirements are being introduced in the EU under the new General Product Safety Regulation, this obligation is not consistent with the UK’s stated intention to reduce the regulatory burden for businesses. In that regard, the threshold for reporting will be key, and it is positive that the consultation is proposing to target only incidents resulting in deaths, injuries requiring an overnight stay in hospital or fires. However, there remain many issues to iron out, including verification of reports, as well as establishing the deadlines and triggers for reporting. In any event, it would be a significant change to the current risk-based model.
Short summary of the proposals
The 13 proposals are summarised below.
Proposal 1
This suggests a new approach centred around potential hazards, cross-cutting, risk-based safety requirements and transparency. It is a rethinking of the current product safety legislative landscape to, at a minimum, streamline the current framework to reduce duplication and inconsistences – and potentially move more radically towards a different cross-cutting framework categorising products by hazards and risk levels, with requirements applying according to risk level.
Proposal 2
This establishes a derogation process, enabling businesses to apply for temporary regulatory easements to seep up supply of essential products in emergencies. It appears to be a relatively narrow innovation, prompted by specific difficulties encountered during the COVID-19 pandemic.
Proposal 3
This introduces digital labelling – allowing e-labelling for the UKCA mark and manufacturer details – but for the reasons set out above, it would have limited scope.
Proposal 4
This proposes new duties for online business models, particularly online marketplaces (cooperation duties). It defines a new role for ‘online marketplace’, with specific duties distinct from the manufacturer, importer and distributor. Duties could include a requirement to cooperate with enforcement authorities to provide information and to take appropriate actions if products are unsafe or noncompliant, as well as a duty to have a compliance function established in the UK.
Proposal 5
This proposes duties for online marketplaces to take certain due care requirements in relation to unsafe product listings. It includes a range of duties that online marketplaces would be expected to take to help prevent listing and relisting of unsafe or noncompliant products – including collecting information about third parties for high-risk products, monitoring the UK government’s Product Recalls and Alerts page, and taking action in relation to any identical or similar products on their marketplaces, gathering information about products and sellers which could indicate a product is unsafe, and taking action accordingly in relation to listings which ‘reasonably look like’ they could be advertising noncompliant or unsafe products.
Proposal 6
This increases consumer-facing information on online product listings to support informed purchasing decisions for higher-risk products. It comprises information that ordinarily would be on product packaging – or provided on or with the product – within the online offer, including traceability information.
Proposals 5 (part of), 7, 8, 9 (part of), 10, 11 and 12
These proposals enhance (collectively) enforcement powers and data-sharing. They include a broad range of suggestions around enhancing the leadership and coordination role of OPSS, facilitating data-sharing, notification of recalls and incidents to OPSS (as opposed to local authorities), consolidating enforcement legislation, granting new powers to directly sanction without prosecution through the courts, and giving inspection powers extended to home working.
Proposal 9
This introduces mandatory incident reporting in the UK for product-related incidents. The potential threshold flagged for discussion in the consultation is incidents resulting in deaths, injuries requiring an overnight stay in hospital or fires.
Proposal 13
This proposes reviewing the product liability regime in light of technological developments. It covers the UK’s strict liability framework under the Consumer Protection Act 1987, and the focus includes whether changes are required to deal with perceived risks arising from software updates, artificial intelligence and online sales.
Next steps and timing
The consultation is open until 24 October 2023 and is a really important opportunity for industry to have its say on these potential reforms. It may be the only opportunity to provide feedback on some of the issues. Please reach out to our team if you have any questions or would like assistance preparing feedback.
Where to find out more
