Product liability and safety horizon scanning – key issues to look out for in 2023

2023 is set to be another significant year for the product liability and product safety landscapes in both the EU and UK. We consider below an overview of some of the recent reforms and insights on where the law may be heading in 2023. Manufacturers, importers, distributors, and online marketplaces, in particular, should follow these changes closely and get ready for big changes ahead. 

EU product safety reforms 

The European Commission has been seeking to address the EU's outdated product safety regime and towards the end of last year, the European Council and the European Parliament reached a provisional agreement on the General Product Safety Regulation (GPSR) which will replace the existing General Product Safety Directive 2001/95/EC (GPSD). The GPSR will address the safety challenges presented by emerging technologies, including the use of artificial intelligence and connected devices, and the fact that an increasing number of products are sold/purchased online.

Although the text of the GPSR still needs to be approved before going through the formal steps of the adoption procedure (and is therefore subject to change) we know the changes are likely to include the following:

• Online marketplaces will have to establish a single point of contact in charge of product safety and will have obligations to ensure they know the traders on their platforms and the products they offer.

• A single market surveillance regime will apply to all products and market surveillance authorities will be able to issue orders requiring online marketplaces to remove dangerous products from their platforms.

• The rules on product recalls and safety warnings will be strengthened and there will be specific requirements on the form and content of product recall notices. Consumers will be entitled to a repair, refund, or replacement in respect of recalled products. 

• Specific measures will seek to protect vulnerable customers including children, and cover cybersecurity risks.

• An economic operator must be established in the EU before a product can be placed on the EU market (which is currently only required for those products covered by EU harmonisation legislation eg, The Toy Safety Directive). Economic operators will need to appoint a responsible person for products sold online and offline, wherever they originate from.

Following adoption, member states will have 18 months to apply the new rules. However, the fact that the GPSR will take the form of a Regulation instead of a Directive is important because the rules will be directly applicable in member states, which means there will be less national variation. 

The GPSR will not automatically be implemented in the UK because of Brexit, but the changes (if implemented) will apply to all manufacturers who sell products in the EU, so UK businesses placing products on the EU market will still be impacted.

EU product liability reforms

Product liability law also needs updating to adapt to innovative products and modern supply chain models, and the European Commission has recently published a proposed update to the Product Liability Directive 85/374/EEC (the Proposal). Our in depth look at the Proposal can be found here, but in short the Proposal:

• Expands the scope of the PLD to cover intangible products like digital content, software, Artificial Intelligence (AI) systems and AI-enabled goods.
• Broadens the pool of potential defendants to include eg, software developers.
• Extends the definition of damage to include loss or corruption of data that is not used exclusively for professional purposes.
• Adds more factors to be considered to determine whether a product is defective, including whether it can learn (ie, AI) and the effect of other products used with it.
• Alleviates or reverses the burden of proof in cases involving complex technology.
• Imposes a new disclosure obligation on manufacturers, software developers and importers placing products on the EU market which could see complex technical information being handed over to consumers to assist with bringing claims.

These changes are still in the early stages of the EU's administrative process, but they are a step in the right direction to updating product liability law in line with today's ever developing economy. If approved, we can expect to see these significant changes implemented in or around 2024-2025. 

Reform of the UK's product safety and liability frameworks

The Office for Product Safety and Standards (the OPSS) has been conducting its own review of the UK's product safety and liability regimes. 

For example, in 2021 it commissioned a Study on the Impact of Artificial Intelligence on Product Safety, which was published in May 2022. The study found that the use of AI in consumer products challenges the existing regulatory frameworks for product safety and liability eg, due to the blurring of the lines between products and services, and because of a lack of clarity around the applicability of the definitions of product, producer and placing on the market, as well as the related concepts of safety, harm, damages, and defects. 

We will have to wait and see whether some, or all, of the proposals we have outlined above in relation to the European product safety and liability regimes will also be carried into English law. We would expect some divergence but equally we can see the benefits of ensuring that the UK market sets the same or similar standards of those companies placing products in the EU market. 

The Retained EU Law (Revocation and Reform) Bill – a clean slate? 

The government has been clear in its desire to remove existing EU based regulations, often described as red tape, from the UK statute book. Its answer to this is The Retained EU Law (Revocation and Reform) Bill (the Bill) which had its first reading in the House of Lords on 19 January 2023. 

Under the Bill, all directly retained EU Regulations and EU derived subordinate legislation (ie, UK regulations implementing EU product safety directives) will automatically be removed from the UK statute book on 31 December 2023 unless it is expressly retained in UK law. Crucially, the Bill also gives Parliament the power to delay the removal of this legislation until 23 June 2026. 

This will have an impact on the vast majority of the UK's product safety legislation, including the rules applying to general consumer goods, toys, and electrical products and thus has potentially significant consequences for product safety. If the government does not intend to expressly retain this legislation, it will need to put in place a new UK product safety regime within a year – an unprecedented timeframe which will give businesses little time to adapt to potentially significant changes. Alternatively, it will face a cliff edge scenario in which the rules governing product safety in Great Britain will cease to apply without a new system to take their place. This will be of significant concern for businesses operating under the UK's current product safety rules.

The Bill is currently being considered by the House of Lords. We expect the government to announce that the key UK product safety legislation will be retained, or that the delay provision in the Bill will be activated, so that it has time to develop new legislative proposals over a longer period and consult with industry stakeholders in the usual way. However, we continue to monitor the progression of the Bill through Parliament and await an announcement from the government on product safety issues. 

UKCA marking – two more years for businesses to prepare

The EU's long established CE marking scheme was due to be replaced by the UKCA marking regime in Great Britain (GB) from 1 January 2023 (with Northern Ireland (NI) continuing to follow the CE marking regime). However, in November 2022, the UK government announced that the deadline for using UKCA marks would be pushed back to 31 December 2024 because many businesses had still not adapted to the new regime, even though the deadline was looming. 

The UKCA mark can be used before the new deadline, or businesses can choose to display the CE mark on its own until then. However, after 31 December 2024, products which are only CE marked will not be accepted on the GB market. A product can be dual UKCA and CE marked provided it complies with both the UK and EU regulations. 

The UKCA marking regime will work in the same way as the CE marking regime ie, applicable products entering the GB market (eg, toys, electrical goods, and machinery) will have to go through a conformity assessment process and once complete, a declaration of conformity will be drawn up and the UKCA mark will be affixed as a symbol of conformity. By 31 December 2024, a separate UK declaration of conformity will need to be drawn up which assesses a product against the UK's own safety rules and standards. However, transitional measures allow manufacturers to use third party EU conformity assessments completed before 31 December 2024 as the basis for displaying a UKCA mark until 31 December 2027. 

Transitional labelling measures have also been extended to make it easier for businesses to comply with the new regime. This means a UKCA mark can be affixed to a product using a sticker or other temporary form, or on a document accompanying the product, until 31 December 2027. After this date, the UKCA marking must appear in permanent form ie, it must be printed on the label or product as required by the relevant regulations. 

It is notable that this is the second time the deadline for the introduction of the UKCA marking regime has been extended. Businesses should make the most of this extension to ensure that they fully understand the new rules and are able to comply by the end of 2024. 

Automated vehicles

Following the government's announcement in August 2022 that it intends to make self-driving vehicles operational on UK public roads by 2025, this is set to be an important year for self-driving vehicles and the development of the regulatory framework which underpins this technology in the UK. The government plans to develop "a robust regulatory framework that provides certainty for innovators and investors, as well as confidence for the public that the technologies are safe, secure and work in the interests of society". This vision is backed by £100 million, of which the government has confirmed that £34 million will be used for research to support safety developments.

In 2023, we can expect to see consultations on secondary legislation which sets out in greater detail the requirements of this new regulatory framework for self-driving vehicles. The government's response to a consultation on the level of safety ambition for self-driving vehicles, which closed in October 2022 and which will inform parts of that secondary legislation, will be particularly interesting. The government is seeking views on whether self-driving vehicles should be held to the standard of a competent and careful human driver (which is higher than the average human driver) and so this will be of keen interest to businesses in the automotive sector as well as road users. Other changes to the regulatory framework will include the addition of new legal actors and a clarification of their obligations and responsibilities (such as an Authorised Self-Driving Entity, User-in-Charge and No User-in-Charge Operator, as recommended by the Law Commission in January 2022) and new technical standards for automated vehicles as part of the GB type approval scheme.

Businesses in the automotive sector will need to be ready to adapt to proposed changes in the regulatory framework for self-driving vehicles, but this year will also present a further opportunity for businesses to seek to shape that regulatory framework. 

Food law

As part of the EU's Farm-to-Fork Strategy, which was adopted in May 2020 and is designed to accelerate the EU's transition to a fair, healthy, and environmentally friendly food system, the European Commission announced plans to revise Regulation EU No 1169/2011 on the Provision of Food Information to Consumers. Public consultation closed in March 2022 and Commission adoption was planned for the fourth quarter of 2022, but this is still awaited. The proposed measures include:

• Harmonised mandatory front-of-pack nutrition labelling (to replace the current mix of voluntary public and private labelling schemes currently used across EU member states).
• Nutrient profiling to restrict health claims made on foods and the promotion of foods high in fat, sugars, and/or salt. 
• The extension of mandatory origin or provenance indications to certain products.
• Revision of the rules on date marking ie, "use by" and "best before" dates.

The aim is to ensure better labelling information is provided to consumers to help them make healthier, more informed, and more sustainable food choices.

Some of these issues have also been considered and addressed by previous UK governments and reform has already been seen in this area, with further reforms expected. For example, from 1 October 2022, the Food (Promotion and Placement) (England) Regulations 2021 banned food and drink products high in fat, salt, or sugar (HFSS products) from being displayed at prominent in-store locations like checkouts and prominent online spaces like home pages of online food delivery sites to deter impulse purchasing. However, plans to ban volume price promotions for HFSS products which incentivise customers to buy higher volumes eg, "buy one get one free" offers and free refills of HFSS drinks in cafes and restaurants have been postponed until 1 October 2023, along with the proposed ban on junk food advertising before the 9pm watershed (to try to limit children's exposure to such advertising). It will be interesting to see whether these measures are implemented in October 2023 as planned. 

Over recent years the food and beverage industry has been hugely impacted by emerging technologies and has had had to evolve and adapt to the use of new supply channels eg, there are now more technology-based food delivery companies than ever before. However, the law in this heavily regulated area has struggled to keep pace with the changes and questions around food delivery companies' regulation and ensuing obligations remain unanswered. For example, do these platforms qualify as Food Business Operators (FBOs) under UK food law, and thus are they responsible for ensuring that the requirements of food law are met and that only safe food is placed on the market, or should this be the originating restaurant's responsibility? Does the delivery company need to provide allergen information to consumers, or again, is this best left to the originating restaurant? Who is best placed to complete a food recall or withdrawal from the market? 

This undoubtedly leads to uncertainty over which entities in the supply chain have which obligations, meaning the information provided to consumers is inconsistent and allowing room for food safety procedures designed to safeguard consumers to become fragmented.

We are monitoring this area closely to see whether the EU and UK will seek to clarify the law on FBOs or introduce new legislation to regulate food delivery businesses. 

Find out more

If you require any further information in relation to the product topics set out above, please contact Taylor Wessing's UK product liability and safety team.