29. November 2021
The Office for Product Safety and Standards (OPSS), the UK government's product safety body, recently published its response to its Call for Evidence on product safety.
As part of its assessment of whether the UK's current product safety framework adequately protects consumers from unsafe products and is flexible enough to adapt to new products, new technologies, and new supply models, the OPSS called for evidence in March 2021 on the following themes:
The OPSS views the UK's departure from the EU as a "unique opportunity" to update the UK's product safety framework and diverge from the EU regime, and the OPSS' response provides a helpful insight into the possible changes, in both the long and short-term, to the UK's product safety framework. We consider in this article some of the key points from the response and what they mean for product manufacturers, distributors, and consumers.
Product design, manufacture and placing on the market
One suggestion as to how the divergence from the EU could benefit product manufacturers relates to how products are placed on the market and the potential introduction of e-labelling, which would enable marking and compliance information to be displayed electronically and updated throughout a product's lifecycle. The OPSS say in the response that this option needs further consideration, but this consultative process and the OPSS' response indicates an openness to new ideas and a willingness to "think boldly" about updating the product safety framework in ways which will streamline processes and reduce costs for product manufacturers.
The placing of products on the market to combat the COVID-19 pandemic provided a test of how flexible the current product safety framework is. The introduction of temporary regulatory easements showed that the framework could adapt to enable the faster supply of PPE. The OPSS understands that in certain cases products will need to be placed on the market urgently, and we may in the future see a fast-track procedure or a formal derogation process to make the process quicker whilst still protecting consumers.
New models of supply
As products have changed to reflect rapid advances in technology, so too has the way those products are sold. The OPSS' response acknowledges that the huge growth in online marketplaces presents challenges for the current product safety framework, and we can expect the OPSS to take "robust steps" in response to these challenges.
Online marketplaces may in the future be required to include more information on their sites explaining to consumers the marketplace's role in the verification of a product's compliance with the product safety framework or whether a product has the necessary markings and safety information.
We may also see updates to the General Product Safety Regulations which impose a duty on online marketplaces, platforms or fulfilment service providers similar to the more onerous duties currently owed by distributors.
As well as changing how the framework applies to online marketplaces, the OPSS is considering how best to update the product safety framework so that it applies to international manufacturers which sell products in the UK using online marketplaces. The OPSS will consider whether it should require manufacturers to establish a UK economic operator with regulatory and compliance obligations before that manufacturer can place products on the UK market.
New products and product lifecycles
The OPSS acknowledges in its response that the current product liability regime may not be adequate for more sophisticated products, such as those which incorporate AI software and make partially autonomous decisions. These products will continue to increase in popularity and sophistication, and so it is important that the product safety framework can adapt to account for these advances. The OPSS is consulting further with the government and other bodies in relation to the impact of AI on product safety and liability, and manufacturers should be prepared for significant changes in relation to how the framework applies to AI products.
The OPSS has indicated that product safety must be regulated in a way which supports the government's Net Zero strategy. The product safety framework will need to respond to changes to products and consumer behaviour which are driven by environmental and sustainability concerns. As businesses and consumers increasingly prioritise the sustainable manufacturing, sale and use of products, we should expect clarification from the OPSS on who is liable for the safety of repaired and second-hand products. This would be a welcome move as more manufacturers, such as Apple, announce that customers will soon be able to repair their own products.
Changing supply models and the growth of online marketplaces have created significant challenges for enforcement authorities. Increasingly complex and international supply chains mean that sellers using online marketplaces can be hard to trace and contact, which leaves enforcement authorities with limited chances to intervene under the current framework.
We should expect changes to the framework which make enforcement against online marketplaces and international manufacturers using online marketplaces easier. As noted above, the duties of online marketplaces may be extended and international manufacturers may be required to establish a UK economic operator to aid enforcement efforts.
Advances in technology are not just changing our products and supply models, but may soon assist the OPSS in better regulating product safety. The OPSS suggests that AI could be used for market surveillance purposes for online marketplaces to enable more targeted interventions for unsafe products.
The OPSS concludes that the current framework "needs to be radically reformed to be more adaptable and capable of responding to accelerating change", and businesses must be prepared for significant changes to the product safety framework.
In the immediate term, those changes are likely to be targeted primarily at online marketplaces. We can expect Trading Standards and OPSS to increase their enforcement work in relation to products sold on online marketplaces. Consumers will be provided with more information and warnings highlighting the risks relating to product safety when purchasing products online.
The OPSS will continue to work with stakeholders in this space as it prepares proposals for consultation. Businesses should continue to monitor announcements from the OPSS so that when more detailed proposals are released, businesses are ready to respond to the significant changes which look set to be included in those proposals.
Please contact our product liability and safety team for further information.
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