Out-Law / Your Daily Need-To-Know
Businesses are likely to welcome plans for reform of UK product safety rules, according to experts who have considered the proposals.
Jacqueline Harris, Katie Hancock, and Zoe Betts of Pinsent Masons were commenting after the Office for Product Safety and Standards (OPSS) published proposals that – if implemented – would streamline the existing legislative framework, place a greater emphasis on compliance with industry-led standards and, the OPSS said, impose “more flexible obligations on businesses that are proportionate to the product’s risk”.
The OPSS said (52-page / 394KB PDF): “As a minimum, we expect to streamline the legislative framework to reduce duplication, remove inconsistencies and seek to identify and rebalance any conformity and testing requirements that are not proportionate, or do not adequately protect consumers or support businesses and innovation. However, we also propose to carefully consider a move away from the current multiplicity of regulation towards a cross-cutting hazard-based framework underpinned by risk assessment, using standards and effective guidance to ensure agility and flexibility in an ever-changing market.”
One option the OPSS is considering is a new categorisation regime whereby products are categorised “by their hazards and consequent risks”. The OPSS said that move could incentivise manufacturers to “design out” hazards. It has suggested that marking and conformity assessment requirements, including any requirement for third-party testing, could be “more explicitly” linked to the risk level of a product and that “lower-risk products” would benefit from “a simpler and fairer system” of regulation with associated lower compliance costs.
Product manufacturers may also be able to “make certain marking and compliance information available digitally” in future under a new voluntary system that would facilitate electronic labelling.
Jacqueline Harris
Partner
With reform already under way in the EU, businesses hoping for alignment in the two regimes will be relieved to see that many of the UK government’s proposals mirror those proposed in the EU
The OPSS’ plans also envisage new data collection and sharing obligations on product safety, as well as the imposition of new duties on manufacturers and distributors to share recall and serious product safety incident notifications directly with the OPSS, rather than local authorities, “as soon as the economic operator has knowledge of an unsafe product”.
New legislation could also be drawn up to impose new product safety duties on ‘online marketplaces’, where they import or distribute products.
“Online marketplaces would have duties to cooperate with enforcement authorities to provide information and take appropriate actions if products are unsafe or non-compliant,” the OPSS said. “An additional duty could be that marketplaces must have a compliance function established in the UK which is responsible for ensuring appropriate policies, processes and systems are in place to address the availability of unsafe products.”
Enhanced enforcement powers could also be provided for under an updated product safety framework.
Harris said: “Current UK product safety rules are largely derived from pre-Brexit EU rules, and it has, for some time, been acknowledged that these have not kept pace with modern markets and technology. With reform already under way in the EU, businesses hoping for alignment in the two regimes will be relieved to see that many of the UK government’s proposals mirror those proposed in the EU, but the UK has consistently said that it wishes to reduce the burden on businesses, so the proposed introduction of mandatory incident reporting, in line with the EU, may come as a surprise. The devil will be in the detail – the threshold for reporting, for example, will be a key consideration.”
In its paper, the OPSS also confirmed that the UK government is intent on “reviewing the civil product liability regime in light of technological developments” – such as artificial intelligence (AI) and machine learning. The current product liability framework is provided for in The Consumer Protection Act 1987.
“Like the General Product Safety Regulations, the Consumer Protection Act is now considered to be outdated, because it was enacted prior to the development of online marketplaces and modern technological advances,” Hancock said.
“The UK government has not so far proposed to update or replace the Consumer Protection Act, but the consultation paper contemplates a future amendment of the product liability regime, in seeking respondents’ views on the fitness for purpose of aspects of the regime. This is likely to be a welcome development for businesses, which can face uncertainty regarding how the legislation would apply to certain technologies, and to consumer groups pushing for the rights of consumers to be protected in the face of rapid technological development,” she said.
Alongside the new product safety review paper, the OPSS also opened a new consultation on updating fire safety rules applicable to domestic upholstered furniture (49-page / 464KB PDF). The wide-ranging proposals, which are anticipated to apply from 1 October 2024, include new “essential safety requirements” that new upholstered products would need to meet.
Both consultations are open to feedback until 24 October 2023.
Betts said: “Both of these consultations are welcome developments in an ever-changing world. Safety is not a static concept and must evolve in accordance with societal and technological changes. Consumers need to be reassured about the integrity of the products they purchase, whether in-store or online, and businesses want a straight-forward compliance regime with proportionate enforcement against those who create unacceptable risks.”
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