EU’s new general product safety regulation ‘highlights gap in UK law’

The regulation (157-page / 814KB PDF) is designed to bring product safety rules up to date and meet the changing market for increased online purchasing. It reinforces safety rules for products sold both offline and online by strengthening market surveillance for unsafe products and consumer rights for anyone who has been sold an unsafe product. 

Key provisions in the GSPR will bring significant changes in practice not only for retailers, manufacturers of products, importers, distributors and fulfilment service providers, but also for providers of online marketplaces.

For example, online marketplaces will have to cooperate with market surveillance authorities if they detect a dangerous product on their platform, and must establish a single point of contact in charge of product safety. Market surveillance authorities will be able to order online marketplaces to remove dangerous products from their platforms or to disable their access.

The regulation will establish a single market surveillance regime, which will apply to all products. If a product has proven to be unsafe, economic operators must immediately adopt corrective measures and inform market surveillance authorities and consumers. If a product must be recalled, consumers will be entitled either to have it repaired or replaced or to be refunded.

Under the new rules, economic operators should have a person responsible for products sold online and offline, regardless of the product’s origin, who will ensure the availability of technical documentation, instructions, and safety information. This means products coming from outside the EU can only be placed on the market if there is an economic operator established in the EU who is responsible for their safety.

Product liability expert Zoe Betts of Pinsent Masons said although the GSPR will not be applicable in the UK, UK-based manufacturers supplying goods to EU retailers or online marketplaces will also be required to comply with the terms of the GPSR.

“UK-based manufacturers need to name a responsible person or firm based in the EU who will be accountable for their safety. This adds another layer of complexity for manufacturers navigating the post Brexit landscape,” she said.

Katie Hancock, also of Pinsent Masons, added that there is now a divergence of laws between the UK and the EU post-Brexit and that the separately developing product safety laws and regulations are a good example.

The UK’s own General Product Safety Regulations were introduced in 2005. They require all products placed on the market in Great Britain to be safe in their normal or reasonably foreseeable usage and enforcement authorities have powers to take appropriate action when this obligation isn’t met. 

“The UK regulations are old now and not designed for a digital world. This means that not only is the UK potentially lagging behind the EU in terms of consumer protection, but UK businesses face additional costs if they want to sell into the EU, because they have to navigate UK legislation, and a different set of EU laws,” said Hancock.

In its current form, the UK regulations do not go as far as the GSPR to protect consumers and they face significant challenges in dealing with new technologies and purchasing platforms.

In 2021, the UK’s National Audit Office (NAO) published a report on the effectiveness of the UK’s product safety regime since the launch of new regulator the Office for Product Safety and Standards (OPSS) in 2018. The report found that the OPSS faced major challenges to keep pace with changes in the market, and that there were gaps in the regulator’s powers over products sold online. It added that local and national regulation was not well coordinated despite improvements.

The UK government and OPSS have already recognised the need for change and an overhaul of the UK product safety regime. As the government’s analysis of responses to the call for evidence on product safety (33-page / 602KB PDF) in November 2021 stated, the current framework in the UK “needs to be radically reformed to be more adaptable and capable of responding to accelerating change”.

“The reform needs to encompass a clear strategy to deal with the shift away from the High Street to increasing use of online markets, sales through third party listings on online platforms and consumers buying from abroad, as well as developments in technology which are evolving fast,” said Betts.