New EU product safety regime to take effect

The EU General Product Safety Regulation will begin to apply on 12 June 2023, though the new provisions will not be enforced until 13 December 2024. Previously compliant products placed on the market before then can still be sold.

The legislation applies to economic operators involved in placing products on the EU market, even if they are not themselves established in the EU. It will impact retailers, manufacturers of products, importers, distributors and fulfilment service providers, as well as providers of online marketplaces.

Economic operators must designate 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 – including those being exported from Britain – can only be placed on the EU market if there is an economic operator established in the EU who is responsible for their safety.

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.

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 access to them.

Zoe Betts, regulatory law expert at Pinsent Masons, said: “The new regulation will dramatically change the EU product safety framework and will increase obligations and liability throughout product supply chains. This is an important development for all businesses involved in supplying products to the EU.

“Manufacturers selling their products in the EU will need a legal representative in the Union, and risk being sued if their products do not comply with the European safety requirements. Online marketplaces will have to comply with a removal order within two days,” she said.

Betts said those in scope of the new regulation should take steps now to ensure they can comply with their obligations. Those steps will include the appointment of a suitable authorised representative who must be given all documentation and technical detail required to enable it to comply with its obligations, including to confirm conformity with EU safety requirements. In addition, risk assessments will require to be updated to ensure they include consideration of the new matters set out in the regulation. These include risks to vulnerable consumers such as children, older people and persons with disabilities, as well as the impact of gender differences on health and safety; and the effects of new technologies including software updates and predictive functions of products. 

A system must also be put in place to ensure that any accidents caused by a product in scope of the regulations is identified and notified timeously. 

Whilst member states are left to decide the level and type of penalty for infringement, they must be “effective, proportionate and dissuasive” with “due consideration…given to the nature, gravity and duration of the infringement in question”.