The European Commission published its legislative proposal to revise the Toy Safety Directive on 28 July 2023. This long-awaited proposal follows the evaluation of the Toy Safety Directive published in 2020 that identified a number of areas where it was thought that the existing rules could be strengthened. The draft legislation includes proposed reforms we expect could influence other European Union sector-specific product rules, such as proposed requirements for a Digital Product Passport to provide certain compliance information.
Key proposals
We’ve outlined below the key proposals included in the European Commission’s draft Toy Safety Regulation.
Regulation change
The European Commission’s draft would convert the existing Toy Safety Directive into a new Toy Safety Regulation. The different legal instrument means it would be directly applicable across the EU without the need for national legislation to implement the requirements. One of the aims behind this change is to ensure uniform implementation across the EU.
Expanded concept of ‘safety’ to add mental health risks
The general safety requirement would be expanded beyond protecting the physical health and safety of users, to include foreseeable risks to ‘psychological and mental health, well-being and cognitive development of children’. This reform is a response to the increased use of digital technologies in toys. As currently drafted, however, there is a risk that it could create uncertainties. In particular, there are no relevant definitions, meaning the scope of the obligation is unclear. For example, are manufacturers only required to consider the risks of medically recognised conditions? Or, if a toy causes emotional upset or anxiety to a child, would that kind of risk be in scope? In our view, if mental health risks are to be included in toy safety assessments, it is important that the boundaries of the new obligation are more clearly delineated.
More stringent rules on harmful substances
A central part of the reforms is the introduction of much stricter rules on chemicals. As toys are already subject to stricter chemicals rules than many other products (including those used by children), there have been concerns raised by industry about the proportionality of these measures, with a number of industry bodies suggesting that the increased burden will put many toy manufacturers out of business. Some have even suggested that the reforms may have the inverse effect of that intended by EU policymakers – meaning the only entities that will be able to bring products to market at a cost-effective price point under the new regime will be those entities based in third countries willing to bring noncompliant products to market. So, there remain considerable issues to resolve here. Specific proposals in relation to harmful substances include:
- Expanding the current generic ban on substances which are carcinogenic, mutagenic or toxic for reproduction (CMRs) to additional harmful chemicals classified as endocrine disrupters, respiratory sensitisers or substances toxic to a specific organ, with limited derogations proposed.
- Extending the current limit values that apply for certain chemicals in toys intended for children under 36 months or intended to be placed in the mouth to apply to all toys.
- Lowering the limit values for nitrosamines and nitrosatable substances for certain toys intended for use by children under 36 months or in other toys intended to be placed in the mouth.
- Requiring possible risks of the combined or cumulative presence of chemicals in the toy to be considered when assessing safety.
Batteries in toys
Under the proposal, batteries in toys would need to comply with other applicable EU rules, such as the Regulation on registration, evaluation, authorisation and restriction of chemicals (REACH) and the Batteries Directive, which will be replaced by the upcoming Batteries Regulation. In addition, the proposed recitals include wording that ‘toys that include batteries should be designed in such a way that the batteries are difficult for children to access’.
New requirement for Digital Product Passport
All toys, including those sold online, would need to be accompanied by a Digital Product Passport containing prescribed compliance information, replacing the existing Declaration of Conformity. This is building on proposals under the proposed Ecodesign for Sustainable Products Regulation that would lay down a framework for Digital Product Passports. Unlike in that context, the focus here is on compliance and enforcement – and the European Commission has announced a complementary initiative to create a new IT system that will screen all Digital Product Passports at EU borders to identify and prevent entry for noncompliant products at customs. The draft Toy Safety Regulation is the first measure we’ve seen proposing to extend the use of the Digital Product Passport beyond ecodesign to cover product safety and compliance information. We expect to see this rolled out more widely to other sectors.
Changes to labelling
Proposals include requiring manufacturers and importers to indicate an ‘electronic address’ in addition to their postal address (as seen in the recently passed General Product Safety Regulation), a requirement to label a data carrier for the Digital Product Passport and allowing the word ‘Warning’ to be replaced by a specified generic pictogram.
Enabling consumers to file complaints or report accidents
In addition to upcoming accident reporting requirements under the recently passed General Product Safety Regulation, the proposals include requirements for manufacturers or importers to make publicly available a telephone number, electronic address, dedicated section of their website, or another communication channel to allow consumers to file complaints concerning the safety of toys and to inform manufacturers/importers of accidents or safety issues they have experienced. There also are proposed restrictions on the personal data that can be kept in a register of complaints and for how long.
Transition period
A 30-month transition period is proposed for most provisions, after which all toys placed on the market will need to comply with the new requirements. Unusually, under the proposals, toys placed on the market before the end of the transition period would only be allowed to be continued to be made available through the supply chain for a further year after the 30-month transition period ends. At that stage, the consequence of the provision is that such products would need to be removed from the supply chain if they have not been sold to consumers. In our view, this risks creating considerable burden and cost for industry, with negligible benefit.
Next steps
The draft legislation is undergoing an eight-week feedback period open to industry and the public. Currently, this closes on 6 October 2023, but we expect the deadline to be extended slightly whilst translations are prepared – you can check the proposal’s current status on the European Commission’s website. Feedback received during this process is usually summarised by the European Commission and presented to the European Council and European Parliament to consider as they review the proposal. Feedback also will be made public on the European Commission’s webpage for this proposal. The legislative proposal then will make its way through the ordinary legislative process involving the European Council and European Parliament separately reviewing the proposal before meeting in trilogue negotiations with the European Commission. This process potentially could be delayed, given the upcoming European elections next year. Please reach out to our team if you have any questions about the Toy Safety Regulation or would like assistance preparing feedback.
Where to find out more
