On 5 November 2024, the UK government published its response to the Product Safety Review (PSR) undertaken by the UK product safety regulator, the Office for Product Safety and Standards (OPSS). This response outlines the key proposals in the review and proposals aimed at modernising the UK’s product safety regime. It was published as a result of comments made during the second reading of the Product Regulation and Metrology (PRM) Bill.
The PSR was aimed at updating the UK’s product safety regime after Brexit and in light of evolving technologies, increased levels of online shopping and growing concerns around consumer safety. As part of the PSR, the UK government launched a consultation in 2023 on a range of proposals for reform (see our related August 2023 Productwise blog). We already had relatively strong indications of what would be next in terms of regulatory priorities – chiefly, a focus on greater regulation of online marketplaces, ensuring that regulation keeps pace with technology and effective enforcement. The government’s response has confirmed those priorities, but has it provided any further insight on some of the other 2023 proposals? Read on to find out what we now know – and what we don’t.
What do we know now?
There are no big surprises in the response. The government remains focused on further regulating online marketplaces and ensuring that legislation is fit for purpose in the digital age. However, helpfully, the response has clarified a few key areas and provided a further indication of timings.
Here is a summary of the main points outlined in the response.
Online marketplaces
The sale of unsafe products online has been deemed a ‘significant problem’, and we have seen the introduction of legislation in the form of the PRM Bill to allow the government to quickly introduce new requirements on online marketplaces through secondary legislation. The response emphasises the government’s intention to introduce these requirements ‘at the earliest opportunity’. They will be developed in the next 12 months and introduced as secondary legislation ‘as soon as possible’ (our best bet is in the next 18 months). These requirements will seek to clarify the responsibilities of online marketplaces to:
- Take steps to prevent noncompliant and unsafe products from being made available.
- Provide consumers with appropriate information, instructions and warnings about products prior to purchasing.
- Cooperate with regulators and provide ongoing assurance – including devising appropriate systems to quickly take action to stop the availability of unsafe products.
Cross-cutting hazards
The government is considering a move from sector-specific risks to cross-cutting hazards, such as the choking hazard presented by button batteries. It intends to develop options for consultation in the coming months, in the hopes that it can bring forward legislation across the whole UK internal market ‘as soon as possible’. Given the continued recognition of the European Union’s CE mark for products placed on the market in Great Britain, and the fact that Northern Ireland must follow the European Union’s rules on product safety as a result of the Northern Ireland Protocol and Windsor Framework, it really does remain to be seen what is envisaged here. Early indications suggest that it will be more targeted than when this area of change was first mooted. For now, we know that the following are areas of focus:
- Button batteries in children’s toys
- Lithium batteries in e-cycles/conversion kits
- Automated machinery
- 3D printing
- Augmented reality
Stronger enforcement framework
There will be a focus on the coordination and alignment of product safety approaches. The government is seeking to enhance the leadership and coordination role of the OPSS, as the national regulator, to address enforcement gaps and reinforce better ways of working between market surveillance authorities.
Voluntary digital labelling
During the consultation, there was support for the introduction of voluntary digital labelling to enable businesses to provide certain product safety compliance information, such as the UK Conformity Assessed (UKCA) mark, digitally rather than on a box or label. The government states that it also is moving towards allowing for provision of market surveillance-based information via digital labelling. The next few months will see the government pondering on how best to progress this. Of course, there is tension here, given that whilst the European Union’s CE mark continues to be recognised for products placed on the market in Great Britain, the European Union does not recognise digital labelling, so businesses also may still need to label in the traditional manner for European Union-facing sales.
Legal data gateway
A majority of respondents to the consultation (mostly market surveillance authorities) were in favour of a new single and legal data gateway. The integration of existing systems would enable the sharing of intelligence between market surveillance authorities to aid in compliance and enforcement. The government also noted the need to consider confidentiality obligations when developing this gateway.
What do we still not know following this response?
There are several questions which remain unanswered, including:
European Union alignment
It is still not clear how the government intends on approaching the ongoing question of alignment with European Union rules. This is particularly pertinent due to the wave of regulatory reforms currently sweeping through Europe – such as the European Union General Product Safety Regulation (GPSR), the new Product Liability Directive and the AI Act. The response does acknowledge that this is a pertinent question, and it states the government’s aim to align with international standards; however, there also is emphasis placed on adopting regulations that better suit the UK’s specific needs.
Specific implementation timelines
Whilst the response outlines various intentions and proposals, specific implementation timelines remain vague. We see references to the government ‘currently considering’ various approaches – with no specific timings. The government has said it intends to create rules for online marketplaces in the next 12 months; however, it is unclear if this time estimate includes the passing of secondary legislation.
Impact on businesses
The response provides limited information on how the proposed changes will impact businesses. We hope to see further guidance concerning compliance costs or support measures to help businesses adapt to the new regulations.
Specifics of digital labelling
We are told that, in the coming months, the government will ‘consider the most effective ways to progress this’, but no further specifics are provided. The government will work with businesses and consumer groups when considering next steps.
Status of some of the 2023 proposals
Whilst some of the 2023 proposals have followed through to the PRM Bill or the government’s response – e.g., a defined role of ‘online marketplace’, introduction of e-labelling and indication of greater enforcement powers – the status of some of the other 2023 proposals remains unknown – e.g., mandatory incident reporting and a review of the UK product liability regime.
What are the next steps?
Short term
In the next 12 months, the government intends to focus on creating new rules for online marketplaces and addressing cross-cutting hazards. It also has launched two calls for action regarding changes to the European Union product and metrology legislation related to measuring noise from outdoor equipment and common chargersolutions.
Medium term
Over the next 12 to 18 months, the government will continue to review feedback from the PSR consultation to consider how best to utilise digital technology. This will be done alongside sector reviews to determine what changes are needed to meet modern challenges.
Long term
In the coming years, the government will evaluate how technological advancements are incorporated into the current framework, ensuring its efforts align with the Industrial Strategy which is scheduled for release in spring 2025.
These aims will be achieved through a variety of ways, such as:
- Specific consultations – There will be continued engagement with industry and other key stakeholders before any regulatory changes are brought forward to ensure they are fit for purpose.
- Legislative reform – The government aims to push through secondary legislation ‘as soon as possible’.
- Strengthening the regulatory framework – Although the methods of funding are unclear, the government will be enhancing the regulatory capacities of the OPSS to enable it to play a greater role in the coordination and alignment of product safety approaches.
- Improving consumer awareness – As alluded to with the proposed new requirements for online marketplaces, we also may see an increased emphasis on consumer awareness and education.
The government has made clear that legislative changes are on the immediate horizon, so it is critical that businesses prepare for compliance by keeping their current product safety practices under review and considering how they might need to adapt.
We will be keeping a close eye on these developments in our upcoming blogs, so stay tuned. In the meantime, if you want to think about how you can start meaningfully engaging with this important area of legislative change, please get in touch.
