Authors
Katie Chandler

Katie Chandler

Partner

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Max Kempe

Max Kempe

Associate

Read More
Authors
Katie Chandler

Katie Chandler

Partner

Read More
Max Kempe

Max Kempe

Associate

Read More

21 February 2020

Product liability and safety – horizon scanning 2020

Moving into 2020, we look at some of the hot topics for the year ahead and how the product liability and safety landscape will change as a result.

Food safety/allergens – labelling laws

2020 brings the implementation of The Food Information (Amendment) (England) Regulations 2019 (the Regulations) ever closer. Coming into force 1 October 2021, the Regulations will require all food business operators (FBOs) which sell food that is pre-packed for direct sale (PPDS), to place the name of the food and a list of ingredients (with allergens highlighted) directly on the food label or packaging. We discuss the changes in more detail here.

While the Regulations have been largely welcomed, there remains widespread uncertainty amongst FBOs as to which business models fall within scope of the changes, given there is no legal definition of PPDS. This is concerning for many FBOs, particularly as significant logistical/practical changes may need to be implemented in order to meet the requirements (if such FBOs fall within scope).

The Food Standards Agency is now consulting on updates to their Technical Guidance on the new food allergen labelling laws and information requirements. This, among other things, seeks to gather stakeholder views on their interpretation of PPDS. The consultation is open for responses until 6 March 2020. We hope that such a process will provide much needed clarity to FBOs, and in turn, consumers.

Other things that may gather traction in 2020 are strengthened regulations in relation to allergy information provided on restaurant menus. Restaurants are not currently required to list allergen ingredients on menus, so long as they provide it via other means, for example, through communication with staff. Such communications can often be inadequate and, as we've seen, lead to tragic loss of life. As such, 2020 could see further regulations being introduced to address such situations. FBOs should continue to monitor such developments.

Automated vehicles – the drive for safety

2020 marks the second year (of three) of the Law Commission's review of the legal and regulatory framework governing automated vehicles (AVs). The first consultation paper considered safety assurance, including how criminal and civil liability should be apportioned in the event of an AV accident. We discuss the first consultation paper here.

The second consultation paper focuses on the regulation of Highly Automated Road Passenger Services (HARPS). These are services that use automated vehicles to transport public passengers without a human driver (for example, a fully automated bus or minicab). The consultation discusses a range of issues, including, implementing a licensing system for HARPs, how to control congestion effectively and the integration of HARPS into existing transport networks. This part of the consultation closed for responses on 16 January 2020.

While media attention often focuses on the private use of AVs, the benefits of using them within the public transport network could be significant. However, as highlighted by the consultation, there is a danger that where large numbers of HARPs are placed on the road, congestion and pollution will significantly increase. This could work against some of the purported benefits of AV (at least in the short term). It will be interesting to see how the Law Commission addresses this issue in their recommendations.

A summary of responses to the second consultation paper is expected in the next few months, with the third (and final) consultation paper expected mid-late 2020. This will seek to draw on responses to the previous two papers and formulate "overarching proposals on the way forward". The final report (with recommendations) is expected in 2021. Watch this space for further updates.

Product Liability Directive – time for change

Last year, the European Commission set up an expert group to review the Product Liability Directive (85/374/EEC) and to produce guidance on its future direction and relationship with emerging technologies. The group has now published its finding in Report on Liability for Artificial Intelligence and other emerging technologies. The full report can be found here.

Although the expert group concludes that the existing product liability regime provides basic protection to victims who suffer damage as a result of new technologies, many characteristics of these technologies (such as complexity, limited predictability and vulnerability to cyber-attacks) mean that it is often harder for victims to obtain redress. To rectify this, the expert group recommends that certain adjustments need to be made to EU and national product liability regimes.

The report acknowledges that due to the diversity of emerging technologies and the risks they pose, it is "impossible" to come up with a single solution to account for the entire spectrum of risks. However, the report does make a number of ambitious (and in our view, sensible) recommendations. For example, in situations where third parties are exposed to an increased risk of harm from certain emerging technologies, the report recommends that liability insurance should be made compulsory. This, in the report's view, will provide victims with better access to compensation.

Given the speed of technological change, it is crucial that the European Commission considers these recommendations quickly, and implements any adjustments to the regime in the coming years ahead. The need for updated product safety and liability regimes will only continue to increase as new technologies advance over the next decade.

The Office for Product Safety and Standards – to recall or not to recall?

In the Office for Product Safety and Standards' (OPSS) Delivery Report, produced at the end of last year, the OPSS talks about 2019 as being "just the start". The report, running to 40 pages, sets out 20 "OPSS Deliveries" which it believes were achieved last year, many of which will have a considerable and lasting impact as we move into 2020 and beyond. As examples, the OPSS has assisted in the publication of over 2,000 product safety standards in the UK and reviewed compliance systems of suppliers representing 80% of the UK domestic appliance market.

There are no signs that this increased regulation and oversight will slow down. £2 million was invested on research last year on topics such as the safety of the Internet of Things devices and a bespoke product safety risk assessment course was rolled out for 270 local authority officers to boost product safety across the UK. The OPSS is becoming a much needed support for Trading Standards authorities.

Regarding enforcement of product safety regulations, the OPSS has indicated a focus will be placed this year on fulfilment houses – which enable online sellers to deliver their goods to consumers quickly – and a number of enforcement visits are planned in the next six months to disrupt the risk of unsafe goods entering the UK market. The OPSS is also setting up an online product safety enforcement team to investigate the online product marketplace robustly.

Considerable time and money is being employed by the OPSS and its work has clearly had an impact. At the date of this article, there have already been 10 product recalls in the UK since the beginning of the year for products ranging from pressure cookers to baby monitors, from walking dinosaurs to Christmas tea lights – the variety of products demonstrating how manufacturers of household goods across a number of industries are feeling the pressure to conform.

As a reminder, when dealing with product recalls, producers and distributors should consider PAS 7100 (being the Code of Practice on consumer product safety related recalls and other corrective action, as adopted in 2018 by the BIS and OPSS) and we can assist if required.

Representative actions – getting closer to collective redress

Finally, and noting that it is not yet clear how much Brexit will curtail the impact of this, we thought it was worth providing an update on the proposed Directive on representative actions for the protection of the collective interests of consumers which seems to have arisen following the rise of Volkswagen's "Dieselgate" scandal a few years ago.

The idea of the Directive is that in a "mass harm situation", where a significant number of consumers fall victim to the same infringement, qualified entities (such as consumer organisations) can step in to claim redress measures on behalf of the collective interests of consumers.

Redress could be in the form of compensation for the defective product, an injunction, a replacement or repair or termination of a contract. Any final decision establishing the infringement could also be used as evidence of the existence of that infringement when seeking further action against the same trader for the matching infringement.

To become a qualified entity, organisations will need to meet criteria set by each member state for domestic claims, and any entity wishing to bring cross-border claims will have to meet the harmonised standards set under the Directive itself. For example, entities must be non-profit making in character and have a legitimate interest in ensuring that provisions of EU law are complied with.

Consumers will have a choice of whether to opt-in or opt-out (depending on how member states have implemented the directive) but it is not yet clear if the UK will adopt similar measures and we continue to monitor this closely.

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