EU Opinion on the Proposed Product Safety Regulation

The European Commission has put forward a proposal for a new refreshed Regulation on product safety in line with the New Consumer Agenda (the “Proposed Regulation”). If passed in its current form, the Proposed Regulation would repeal and replace the current General Product Safety Directive 2001/95/EC (the “GPSD”) with a new Regulation for consumer product safety. We have mentioned some more pertinent changes below, and in general terms the Proposed Regulation should take into account new technologies and provide further clarity on the scope of product safety requirements. A recent EU Opinion of the European Economic and Social Committee (the “EESC”) is the first response to the proposal and represents support of it (the “EU Opinion”). You can access the EU Opinion here and the Proposed Regulation here.

Although the UK will not be obliged to implement the Proposed Regulation once it is adopted, the UK is carrying out a review of its own product safety regime which may be influenced by developments in the EU.

The Proposed Regulation

Some of the pertinent changes resulting from the proposal can be summarised as follows:

• Arbitration mechanism: There is a voluntary arbitration mechanism where Market Surveillance Authorities could submit to the Commission questions concerning the identification or level of a risk linked to a product.
• Presumption of conformity: The regime would apply in the same way as it does for harmonised goods (mainly those requiring a CE / compliance mark). This aims to provide consistency where many retailers will sell both harmonised and non-harmonised goods. There may also be technical standards that apply to products which are not harmonised goods, leading to the potential for a presumption of conformity for all goods where evidence of safety testing can be supplied.
• Online marketplaces: There will be a dedicated chapter which will examine the role played by online marketplaces and lay down specific obligations. This remains under close scrutiny and subject to consultation, but the latest published draft includes a duty to register with Safety Gate (the EU rapid alert system for dangerous non-food products), mitigating the risks of safety incidents, facilitating action taken by others in the supply web and cooperating with market surveillance authorities.
• Consumer involvement: The use of the Safety Gate web portal is enhanced by adding a new section where consumers can consult warnings and recalls issued directly by economic operators. Stakeholders have stressed the importance of contacting affected consumers directly in the case of recalls whenever possible, for instance because the product was registered, bought online, or bought with the use of loyalty card. Several stakeholders mentioned that consumers should be able to choose to receive safety notifications only (when registering a product or subscribing to a loyalty scheme), and the need to make recall participation more attractive to consumers.
• Standardised penalties: The final chapter provides for a system of penalties. While recognising that establishing penalties is a national competence, it sets out guiding principles for penalties, in particular criteria for setting penalties, the types of infringements to be penalised, criteria on maximum ceilings, as well as the possibility to impose periodic penalty payments.
• Directive v Regulation: A Regulation is the suitable instrument to achieve the objective of improving enforcement of, and compliance with EU legislation on product safety. A directive would not sufficiently achieve the objectives, as potential jurisdictional conflicts would persist following its transposition. The choice of Regulation instead of Directive also allows to better deliver on the objective to ensure coherence with the market surveillance legislative framework for harmonised products, where the applicable legal instrument is also a Regulation (EU 2019/1020).

The European Economic and Social Committee Opinion

The EESC welcomes the Proposed Regulation.

It welcomes the focus on the concept of security and the inclusion of cybersecurity as a requirement for a product to be considered safe. However, to increase legal certainty, the EESC proposes stipulating that cybersecurity be assessed in all circumstances and during the lifespan of the product. The EESC thinks it is obvious and unavoidable that any future regulatory framework must also safeguard consumers against threats to their safety from hackable connected goods, a lack of updates to software, an increase in the prevalence of harmful chemicals, and welcomes possible changes in this regard.

It is noted that the Proposed Regulation does not specify that online marketplaces are importers or distributors of products. The Proposed Regulation does not set similar duties and responsibilities for them as for brick-and-mortar shops, and goes on to say that they would welcome more clarity regarding liability fault lines. The EESC stipulates that consideration should be given to subjecting marketplaces to Article 5 (economic operators to only place or make available on the Union market only safe products) and upgrading their liability to that of an importer. They recommend that online marketplaces should also have an obligation to monitor products sold via their intermediaries.

The application of product safety in general terms to chemicals is considered in the EU Opinion, as the Committee believes that it should allow chemical safety criteria to be set for the products that fall under the law.

It is unclear if the Proposed Regulation will bring more clarity in these regards.

Next Steps

The Proposal for a new Regulation on product safety provides for revision of the existing EU product safety framework, increases the scope of product safety regulation, creates new procedural requirements for product recalls, stricter notification obligations and enhanced rights of authorities to impose sanctions. If the proposal is approved by the European Parliament and the European Council, companies need to adapt current practices in order to be compliant with the rules and avoid being sanctioned by market surveillance authorities.

The Proposed Regulation is currently making its way through the European legislative process. It is at the First Reading stage and the European Parliament will next examine the Council's position and either approve it, reject it, or propose amendments.

Please do not hesitate to contact us if you have any product safety related queries.

Co-authored by Adrienne Fisher